Defending Statement of Faking Credibility through Unreal Sales Records Is Groundless and Unacceptable
——Guo Mingsheng, Guo Mingfeng and Sun Shubiao
[Syllabus]
For the criminal activities of counterfeiting a registered trademark, the amounts of illegal business revenue and illegal gains can be ascertained by taking into full account of such evidences as confessions of defendants, testimony of witnesses, statements of victims, electronic data of online sale, records and bank accounts of defendants, delivery bills, data records of delivery companies, and accounting ledgers kept by defendants. Where a defendant contends that there exist fake records of online retail dealings in order to fake credibility, but provides no evidence to substantiate the contention, such a contention may not be adopted.
[Case No.] Suqian Intermediate People’s Court of Jiangsu (2015) SZZXCZ No. 0004
[Cause of Action] Counterfeiting a registered trademark
[Collegial Panel Members] Cheng Liming Zhu Geng Bai Jin
[Keywords] Criminal, crime of counterfeiting a registered trademark, amount of illegal business revenue, online sale
[Relevant Legal Provisions] Article 213 of the Criminal Law of the People's Republic of China
[Basic Facts]
The public prosecutor accused that: from the end of November 2013 to June 2014, without the licensing of Samsung (China) Investment Co., Ltd., for the purpose of seeking illegal profits, and in collusion with defendants Sun Shubiao and Guo Mingfeng, the defendant Guo Mingsheng purchased counterfeit bare SΛMSUNG mobile phones and accessories through wholesale from other persons, assembled them, publicized them as “genuine and authentic” in his online store “SΛMSUNG Digital Shoppe” on Taobao, and sold them at a price significantly lower than the market price. They sold a total of over 20,000 counterfeit SΛMSUNG mobile phones, with the sales revenue of over RMB 20 million and the illegal profits of over RMB 2 million. This constitutes their criminal liabilities for the crime of counterfeiting a registered trademark. In the joint criminal activities, Guo Mingsheng played a leading role and was the principal offender; and Guo Mingfeng and Sun Shubiao played an assistant role and were accessory offenders, entailing lighter punishments.
The defendants Guo Mingsheng, Sun Shubiao and Guo Mingfeng confirmed without dissents the criminal facts that they assembled counterfeit SΛMSUNG mobile phones, and publicized and sold them through their online store on Taobao, but filed an objection to the amount of illegal business revenue and illegal profits. They contended that the real volume of business was over 10000 sets because they hired some pretended shoppers to fake the credibility of their online store.
Based on court investigation, it was ascertained by the court that “SΛMSUNG” is a trademark that has been registered in China by Samsung Electronics Co. Ltd. with validity until July 27, 2021; and Samsung (China) Investment Co., Ltd. is a company established by Samsung Electronics Co. Ltd. in China and is specially authorized by Samsung Electronics Co. Ltd. to deal with the management and legal affairs concerning trademarks, patents, copyrights and other IPs owned by Samsung Electronics Co. Ltd. In November 2013, the defendant Guo Mingsheng purchased a Taobao online store (account no. play2011-1985) of which the storekeeper was “Wang Liang”, changed its name to “SΛMSUNG Digital Counter”. Without the licensing from Samsung (China) Investment Co., Ltd., he purchased counterfeit bare SΛMSUNG I8552 mobile phones and accessories through wholesale from Yuanwang Digital Mall at Huaqiangbei, Shenzhen and from Tongtiandi Telecommunication Market in Futian District, Shenzhen, assembled them together, and publicized and sold them as “genuine and authentic ones” through his online store “SΛMSUNG Digital Counter” on Taobao. The defendant Guo Mingfeng was responsible for customer service and managing customer service staff at the online store, and the defendant Sun Shubiao was responsible for sourcing, packaging and contacting with delivery companies for shipment of counterfeit SΛMSUNG I8552 mobile phones. Up until June 2014, the online store assembled and sold a total of over 20,000 counterfeit SΛMSUNG I8552 mobile phones, on an aggregated basis, with the total sales revenue of over RMB 20 million and the illegal profit of over RMB 2 million.
Holding
Suqian Intermediate People’s Court of Jiangsu issued (2015) SZZXCZ No. 0004 Criminal Judgment on September 8, 2015, stating that the defendant Guo Mingsheng committed the crime of counterfeiting a registered trademark and were sentenced to a five-year term of imprisonment and a fine of RMB 1.6 million; the defendant Sun Shubiao committed the crime of counterfeiting a registered trademark and were sentenced to a three-year term of imprisonment with a five-year probation and a fine of RMB 200,000; and the defendant Guo Mingfeng committed the crime of counterfeiting a registered trademark and were sentenced to a three-year term of imprisonment with a four-year probation and a fine of RMB 200,000. Since the judgment was announced, none of the three defendants had filed an appeal, and the judgment has taken into effect.
[Reasoning]
It is held by the court in the effective judgment that the defendants Guo Mingsheng, Guo Mingfeng and Sun Shubiao, without the licensing of Samsung (China) Investment Co., Ltd., purchased counterfeit bare SΛMSUNG mobile phones and accessories, assembled into mobile phones under the registered trademark “SΛMSUNG”, and sold them as “genuine and authentic ones” through their online store. Their activities constituted the illegal behavior of using the same trademark on the same product without the licensing of a registered trademark owner. With sales amount of over RMB 20 million and the illegal profits of over RMB 2 million, it constitutes a very severe violation of the crime of counterfeiting a registered trademark. The defendants Guo Mingsheng, Guo Mingfeng and Sun Shubiao filed an objection to the amount of illegal business revenue and illegal profit by defending that they hired some pretended shoppers to fake the credibility of the online store. However, the three defendants’ confessions and the delivery bills, records of fund transfers from Alipay to Guo Mingfeng’s bank account, records of payments from Guo Mingfeng’s bank account, records of the Taobao online store “SΛMSUNG Digital Counter”, data records of delivery companies, records seized on sitepublic security department and other evidences collected by public security department reconcile and validate each other to establish the public prosecution department’s charge that they sold a total of over 20,000 counterfeit SΛMSUNG I8552 mobile phones, with the sales revenue of over RMB 20 million and the illegal profit of over RMB 2 million, and the three defendants’ defending statement of faking credibility though unreal sales records is not supported by evidences and is found unacceptable. The defendants Guo Mingsheng, Guo Mingfeng and Sun Shubiao were joint offenders, of which the defendant Guo Mingsheng played a leading role and was the principal offender; and Guo Mingfeng and Sun Shubiao played an assistant role and were accessory offenders and therefore should be given lighter punishments.
