涉“3M口罩”销售假冒注册商标的商品罪案
Case Analysis
People's Procuratorate of Zhenjiang Economic and Technological Development Zone v. Zhenjiang Huaye Automotive Products Co., Ltd. et al.
涉“3M口罩”销售假冒注册商标的商品罪案
Lower Court Docket No.: 92, first instance (初), criminal case (刑), (2020) 1191, the People's Court of Zhenjiang Economic and Technological Development Zone in Jiangsu Province (苏)
一审案号：（2020）苏1191刑初92号
Prefatory Syllabus
裁判要旨
Where a person/party who, knowing that the goods purchased from the source are counterfeiting a registered trademark, still procures them and sells them to others in the name of his/her/its company or individual name through online or offline channels with a huge or large sales amount constitutes the crime of selling counterfeit goods of registered trademarks.
明知从他人处购买的是假冒注册商标的商品，仍予以购进并以公司或个人名义通过线上或线下销售给他人，销售金额巨大或较大的，构成销售假冒注册商标的商品罪。
Basic Facts
案情介绍
Public Prosecution Organ: PEOPLE'S PROCURATORATE OF ZHENJIANG ECONOMIC AND TECHNOLOGICAL DEVELOPMENT ZONE
Defendant Organizations: ZHENJIANG HUAYE AUTOMOTIVE PRODUCTS CO., LTD.,DANYANG FENGYI PLASTIC PRODUCTS CO., LTD.
Defendants: JIANG *HUA, ZHAO *LING, PENG *, HANG *FANG, ZHAO *DONG, HU *FENG
公诉机关：镇江市经济开发区人民检察院
被告单位：镇江华业汽车用品有限公司（简称华业公司）、丹阳市丰溢塑料制品有限公司（简称丰溢公司）
被告人：蒋某华、赵某玲、彭某、张某芳、赵某东、胡某锋
The defendant organization, Zhenjiang Huaye Automotive Products Co., Ltd. ("Huaye"), was established on August 27, 2013. The defendant Jiang *hua was the legal representative and defendant Zhao *ling was the shareholder of Huaye. From 2015 to 2020, Jiang *hua and Zhao *ling, knowing that the protective supplies including masks and respirators purchased from the source were counterfeit 3M products, still procured them and sold them to Danyang Fengyi Plastic Products Co., Ltd. ("Fengyi") in the name of Huaye with a sales volume amounting to RMB 297,839. On February 6 and February 7, 2020, the public security authorities seized a total of 234,832 pieces of 3M masks, respirators, 5N11C N and other protective products in the warehouse of Huaye, which were identified as counterfeit 3M products except for 5N11C N with a total value of RMB 82,188.97.
被告单位华业公司于2013年8月27日成立。被告人蒋某华作为华业公司法定代表人，被告人赵某玲作为华业公司股东。2015年至2020年，蒋某华、赵某玲明知从他人处购买的是假冒3M面罩、口罩等防护用品，仍予以购进，并以华业公司的名义销售给丰溢公司，销售金额为297839元。2020年2月6日、2月7日，公安机关在华业公司仓库查获3M面罩、口罩、5N11C N等防护用品共计234832件，经鉴定，除5N11C N为正品外，其余均为假冒3M产品，货值为82188.97元。
The defendant organization Fengyi was incorporated on July 4, 2012, and the defendant Peng * was the actual operator of the company. From 2015 to 2020, Peng *, knowing that the protective supplies procured from Huaye operated by Jiang *hua and Zhao *ling were counterfeit 3M masks and respirators, still procured them and sold them to others in the name of Fengyi with a sales volume amounting to RMB 569,075.5.
被告单位丰溢公司于2012年7月4日成立，被告人彭某作为丰溢公司的实际经营者，2015年至2020年，其明知从蒋某华、赵某玲经营的华业公司购买的是假冒3M面罩、口罩等防护用品，仍予以购进，并以丰溢公司的名义销售给他人，销售金额为569075.5元。
From 2015 to 2020, the defendants Jiang *hua, Zhao *ling, Zhang *fang, Zhao *dong and Hu *feng, knowing that the protective supplies including masks and respirators purchased from the source were counterfeit 3M products, still procured them and sold them to others in the name of Huaye with a sales volume of RMB 2,975,613.7, RMB 520,389.42, RMB 425,220.86 and RMB 67,500. The defendants Jiang *hua, Zhao *ling and Hu *feng were arrested and tried for the case, and the defendants Peng *, Zhao *dong and Zhang *fang surrendered on their own initiatives. Later on, all defendants confessed the above facts truthfully. Zhao *ling returned RMB 1.45 million in illicit money; Peng * returned RMB 300,000 in illicit money; Zhao *dong returned RMB 500,000 in illicit money; Zhang *fang returned RMB 400,000 in illicit money; and Hu *feng returned RMB 136,850 in illicit money.
2015年至2020年，被告人蒋某华、赵某玲、张某芳、赵某东、胡某锋明知从他人处购买的是假冒3M面罩、口罩等防护用品，仍予以购进并对外销售，销售金额分别为2975613.7元、520389.42元、425220.86元、67500元。被告人蒋某华、赵某玲、胡某锋被抓获归案，被告人彭某、赵某东、张某芳自动投案，后均如实供述了上述事实。赵某玲退出赃款145万元；彭某退出赃款30万元；赵某东退出赃款50万元；张某芳退出赃款40万元；胡某锋退出赃款136850元。
The People's Court of Zhenjiang Economic and Technological Development Zone in Jiangsu Province held in the first instance that the defendant organization Huaye had sold goods that it knew were counterfeit products of a registered trademark with a huge amount of sales, and that the defendants, Jiang *hua, as the person directly in charge, and Zhao *ling, as the person directly responsible, had committed the crime of selling counterfeit goods of registered trademarks. The defendant organization Fengyi had sold goods that it knew were counterfeit products of a registered trademark with a huge amount of sales, and the defendants Peng * as the person directly in charge had committed the crime of selling counterfeit goods of registered trademarks. The defendants Jiang *hua, Zhao *ling, Zhang *fang, Zhao *dong, and Hu *feng had sold goods that they knew were counterfeit goods of a registered trademark; the sales volumes of Jiang *hua, Zhao *ling, Zhang *fang, and Zhao *dong were huge, and that of Hu *feng was large, so they should be held criminally responsible for the crime of selling counterfeit goods of registered trademarks. Therefore, the crime of the defendant organizations and defendants prosecuted by the public prosecution organ was established. The defendants Jiang *hua and Zhao *ling had played a key role in the joint crime, so they were treated as the key offenders and should be punished in accordance with the extent of their participation in the entire crime. The two defendants voluntarily pleaded guilty to the crime and accepted the fines, so they could receive lenient punishments according to the extent allowed by law. The court comprehensively took into account the nature of the crime, the circumstances and the repentance of the defendants Zhao *ling, Peng, Zhang *fang, Zhao *dong and Hu *feng, and held that they could be applied with sentences on probation.
江苏省镇江经济开发区人民法院一审认为，被告单位华业公司销售明知是假冒注册商标的商品，销售金额数额巨大，被告人蒋某华作为直接负责的主管人员、赵某玲作为直接责任人员，其行为构成销售假冒注册商标的商品罪。被告单位丰溢公司销售明知是假冒注册商标的商品，销售金额数额巨大，被告人彭某作为直接负责的主管人员，其行为构成销售假冒注册商标的商品罪。被告人蒋某华、赵某玲、张某芳、赵某东、胡某锋销售明知是假冒注册商标的商品，蒋某华、赵某玲、张某芳、赵某东销售金额数额巨大，胡某锋销售金额数额较大，应当以销售假冒注册商标的商品罪追究其刑事责任。公诉机关对各被告单位和被告人指控的罪名成立。被告人蒋某华、赵某玲在共同犯罪中起主要作用，是主犯，应当按照其所参与的全部犯罪处罚。两被告单位及六被告人均自愿认罪认罚，依法可对其从宽处理。法院综合考量被告人赵某玲、彭某、张某芳、赵某东、胡某锋的犯罪性质、情节、悔罪表现，认为对其可适用缓刑。
Based on the above, the court ruled that (I) the defendant organization Huaye, and the defendants Jiang *hua and Zhao *ling were guilty of selling counterfeit goods of registered trademarks, so the defendant organization Huaye was charged with a fine of RMB 150,000, while the defendant Jiang *hua was sentenced to three years' imprisonment and a fine of RMB 150,000; and the defendant Zhao *ling was sentenced to three years' imprisonment with a probation of three years and a fine of RMB 150,000. (II) The defendant organization Fengyi had committed the crime of selling counterfeit goods of registered trademarks and was charged with a fine of RMB 290,000. (III) The defendant Peng * had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of two years and four months with three years' probation and fined RMB 290,000. (IV) The defendant Jiang *hua was sentenced to imprisonment of three years and six months and fined RMB 1,490,000 for the crime of selling counterfeit goods of registered trademarks. Combined with his punishment as a corporate body, i.e. imprisonment of three years and six months and a fine of RMB 150,000, it was decided that he be applied the execution of imprisonment of three years and six months and a fine of RMB 1,640,000. (V) The defendant Zhao *ling was sentenced to three years' imprisonment with three years' and six months' probation and fined RMB 1,490,000 for the crime of selling counterfeit goods of registered trademarks. Combined with her punishment as a corporate body, i.e. imprisonment of three years with three years' and six months' probation and a fine of RMB 150,000, it was decided that she be applied the execution of imprisonment of three years and six months and a fine of RMB 1,640,000. (VI) The defendant Zhang *fang had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of two years and four months with three years' probation and fined RMB 270,000. (VII) The defendant Zhao *dong had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of three months with three years' probation and fined RMB 220,000. (VIII) The defendant Hu *feng had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of nine months with one year's and six months' probation and fined RMB 50,000. (IX) The infringing products including masks and respirators seized by and held in the public security organs shall be confiscated in accordance with the law.
综上，法院判决：（一）被告单位华业公司、被告人蒋某华、被告人赵某玲犯销售假冒注册商标的商品罪，判处被告单位华业公司罚金十五万元。判处被告人蒋某华有期徒刑三年，并处罚金十五万元；判处被告人赵某玲有期徒刑三年，缓刑三年，并处罚金十五万元。（二）被告单位丰溢公司犯销售假冒注册商标的商品罪，判处罚金二十九万元。（三）被告人彭某犯销售假冒注册商标的商品罪，判处有期徒刑二年四个月，缓刑三年，并处罚金二十九万元。（四）被告人蒋某华犯销售假冒注册商标的商品罪，判处有期徒刑三年六个月，并处罚金一百四十九万元，与单位犯罪中判处被告人蒋某华有期徒刑三年，并处罚金十五万元数罪并罚，决定执行有期徒刑三年六个月，并处罚金一百六十四万元。（五）被告人赵某玲犯销售假冒注册商标的商品罪，判处有期徒刑三年，缓刑三年六个月，并处罚金一百四十九万元，与单位犯罪中判处被告人赵某玲有期徒刑三年，缓刑三年，并处罚金十五万元数罪并罚，决定执行有期徒刑三年，缓刑三年六个月，并处罚金一百六十四万元。（六）被告人张某芳犯销售假冒注册商标的商品罪，判处有期徒刑二年四个月，缓刑三年，并处罚金二十七万元。（七）被告人赵某东犯销售假冒注册商标的商品罪，判处有期徒刑二年三个月，缓刑三年，并处罚金二十二万元。（八）被告人胡某锋犯销售假冒注册商标的商品罪，判处有期徒刑九个月，缓刑一年六个月，并处罚金五万元。（九）扣押于公安机关的口罩、面罩等侵权产品，依法予以没收。
Typical Significance
典型意义
This case is one related to the COVID-19 pandemic. The court comprehensively took into consideration the circumstances, nature and harmful consequences of the offense and crime of each defendant, sentenced the several defendants to substantial punishments, and found that they had constituted crimes as organizations and sentenced them to fines, which has vigorously stricken the illegal and criminal acts of selling counterfeit masks of registered trademarks and seriously disrupting the normal order of pandemic prevention and control and social order, safeguarded the overall situation of pandemic prevention and control, economic and social development and people's health, and achieved good social and legal effect.
本案系涉疫情案件。法院结合各被告人的违法犯罪情节、性质及危害后果等因素，对多名被告人判处实刑，并认定构成单位犯罪、判处罚金，有力打击了售卖假冒注册商标的口罩、严重破坏正常防疫秩序和社会秩序的违法犯罪行为，保障了疫情防控、经济社会发展和人民群众健康生活的大局，取得较好的社会效果和法律效果。
This case was selected as one of the "Top Ten Typical Cases of Judicial Protection of Intellectual Property Rights of Jiangsu Courts in 2020".
本案入选“2020年江苏法院知识产权司法保护十大典型案例”。
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