Criminal judgment regarding alleged violations of the Trademark Law and Fair Trade Law by Ch'en Chao-t'ung
Chinese Taipei
Case:
Criminal judgment regarding alleged violations of the Trademark Law and Fair Trade Law by Ch'en Chao-t'ung
Key Words:
counterfeiting; abolishment of punishment for a criminal offense; exemption from prosecution
Reference:
Criminal judgment by the High Court of Taichung Branch, (88) Shang Yi Tzu No. 1152
Industry:
Relevant Laws:
Summary:
Ch'en Chao-t'ung (the defendant), a sidewalk vendor of leather products and apparel, knew that applications had been filed with the National Bureau of Standards (now the Intellectual Property Office) of the Ministry of Economic Affairs for registration of the Prada, Moschino, and Gucci trademarks by the Italian companies of the same names, and that the companies had subsequently been granted the rights of exclusive use of the trademarks, and the trademarks were still in their period of exclusive use and had not been licensed for local manufacture. Despite being so aware, Ch'en Chao-t'ung nevertheless began in April 1998 to purchase, with malicious intent, counterfeits of the above leather products from wholesalers. He subsequently sold the counterfeit products for profit at prices ranging from NT$1,500 to NT$2,500 in front of the Han Shen Department Store in Taichung
For the above
violation, the defendant was originally sentenced to 30 days' imprisonment.
Although the initial punishment imposed was not without basis, it was too
light in view of the more than 200 counterfeit products seized in the police
raid. In his appeal, the public prosecutor claimed that the original court
decision was thus improper, and that the defendant also violated Article
20(1)(i) of the Fair Trade Law ("the Law"), and so should be punished
pursuant to Article 35 of the Law. In its original decision, the court decided
in respect of the latter allegations that unlawful acts had not been constituted.
However, the prosecutor claimed that the act in question was in fact a violation
of the pre-amended Law. The court that made the original decision had held
that these charges should be exempt from prosecution since the Law had subsequently
been amended to remove punishment for such acts. The prosecutor claimed
that the original judgment was therefore improper in this regard as well,
and that the High Court should set it aside and make a new one.
The actions of the defendant Ch'en Chao-t'ung constituted the crime of selling
counterfeit products under Article 69 of the Trademark Law. The defendant
committed in rapid succession repeated offenses constituting multiple like
crimes that were obviously based on general criminal intent. The acts should
thus be deemed one continuous violation, and the punishment increased pursuant
to law. Although selling counterfeit products obstructs trading order and
social and economic development, the defendant admitted to the unlawful
acts. Taking into account the motives, actions, and resultant damage, the
defendant was sentenced to six months' imprisonment, and the standard for
commutation of the prison sentence to a fine was pronounced. The products
seized in the case were pronounced confiscated pursuant to Article 64 of
the Trademark Law. Other items used by the defendant in the unlawful acts
were pronounced confiscated pursuant to Article 38(1)(ii) of the Criminal
Code.
The public prosecutor
asserted that the actions of the accused also violated Article 20(1)(i)
of the Law and should be punished pursuant to Article 35 of the Law. However,
an amendment to Article 35 was announced on February 3, 1999 and took effect
on February 5, 1999. Pursuant to the provisions of Article 35(1) of the
amended Law, when handling violations of Article 20(1) of the Law, the central
competent authority shall first specify a time period within which the person
shall cease or rectify his conduct or adopt corrective measures, pursuant
to Article 41. Criminal liability shall be imposed only if the person fails
to cease or rectify his conduct or adopt corrective measures within the
specified time period, or commits the same or a similar offense again thereafter.
In this case, though, the central competent authority did not specify a
time period within which the defendant was required to cease or rectify
his conduct or adopt corrective measures. Thus, criminal punishment pursuant
to Article 35 of the Law cannot be imposed. Since after the violation was
committed the law was subsequently amended to abolish punishments for such
acts, a judgment of "exempt from prosecution" should be pronounced
in accordance with Article 302 of the Criminal Law. However, since the public
prosecutor held that the offense in question constituted one and the same
offense as the aforesaid offense on which the defendant was judged guilty,
no separate pronouncement of "exempt from prosecution" is made.
Summarized by Ch'iu
Shu-fen
Supervised by Hsu Chao-ying