Coming to Hong Kong for the first time, INTA this year has a specific focus on Asia. Experts with extensive experience with IP protection in China have been invited to talk about the criminal actions against counterfeiters in the country.
Trademark cases constitutes 68.4% of all the criminal IP cases in China, according to Lan Li, associate at Baker & McKenzie, who was an IP judge before joining the firm. "It is undoubted that trademark cases make the largest portion of annual IP crimes,” she says.
There have been a number of trans-city, trans-provincial campaigns on criminal prosecutions of counterfeits, says Edward Yang, senior manager, brand enforcement APAC at Microsoft.
"Comparing to the administrative measures, criminal prosecution is more deterrent to IP infringement parties,” says Steven Wang, senior IP counsel at Philips Intellectual Property & Standards (China). “Therefore, more people are interested in criminal prosecution.”
There are two approaches to initiate a criminal procedure, public prosecution and private prosecution, according to Li. She says it is more common to take the former where the police start to investigate the suspects after receiving a complaint. The People’s procuratorate will then examine the case and seek court trial if the evidence is reliable and sufficient.
Li adds administrative authorities can also transfer the case for the criminal prosecution as long as the evidence meets the statutory threshold of the criminal liability.
Despite the available legal provisions for private prosecution, it is rather rare to see a successful case as individuals or business entities lack the power for investigation, says Li.
Sharing a successful criminal prosecuted case with the audience, Wang says it is very important for brand owners to fix the evidence during the transfer process from administrative to criminal actions. It would bring more complexity if the evidence and documents are found inconsistent during the transferring process.
Brand owners play an important role in criminal prosecutions as they are in the best position to verify the authenticity of their products. It is very helpful for them to cooperate with the authorities, not only to push the case forward, but also to provide timely and full-around assistance with the investigation and seizure of counterfeits, Wang says.
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