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:

Articles 20, and 35 of the Fair Trade Law

Summary:

  1. 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

  1. 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.

  2. 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


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