Uncovering the 'double coat' of selling counterfeit baby bottles
2024-07-17
Xie Li, Director of the Fifth Procuratorial Department of Nanshan District People's Procuratorate in Shenzhen, Guangdong Province (hereinafter referred to as "Nanshan Procuratorate"), has been a bit busy recently. During this period, she has received calls from colleagues in other local procuratorial organs, "Some cases have the same plot, and I hope we can refer to the interpretation and reasoning of this case, and feel that the typical case has played an exemplary role". The case she mentioned is the "Criminal and Civil Public Interest Litigation Case of Liu Selling Counterfeit Milk Bottles and Nippers" handled by Nanshan Procuratorate. In this case, in response to Liu's illegal and criminal behavior of selling baby bottles and pacifiers that he knew were counterfeit registered trademarks and did not meet national food safety standards, which seriously endangered the legitimate rights and interests of sensitive groups such as infants and young children, the procuratorial organ filed a criminal incidental civil public interest lawsuit and requested punitive damages in accordance with the law to safeguard the legitimate rights and interests of consumers and the physical health of minors. On the occasion of this year's "3.15" Consumer Rights Protection Day, this case has been selected as a typical case of consumer rights protection public interest litigation by the Supreme People's Procuratorate. I hope these people who produce and sell counterfeit goods will realize that infringing intellectual property rights is illegal, and if the quality of the infringing products sold does not meet the standards, they will also be subject to punitive damages Xie Li introduced it. Counterfeit baby bottles have been found to contain harmful substances. In recent years, with the improvement of people's living standards, the market for infant and toddler products has become increasingly prosperous. However, some criminals have extended their black hands to specialized products for infants and young children in order to make huge profits. In January 2023, the public security organs discovered during law enforcement that Liu's online store was selling a large number of counterfeit milk bottles and pacifiers from the well-known brand "Beiqin". After investigation, since February 2020, Liu has been selling counterfeit baby bottles and pacifiers to numerous consumers through the internet without obtaining authorization from the rights holder for illegal gains, totaling RMB 177623.2. Liu's criminal behavior is very deceptive. He named his online store 'Moumou Maternal and Child Direct Sales Store', and when selling counterfeit products, the price is only slightly lower than the genuine ones, focusing on 'cost-effectiveness'. For example, for a bottle priced around 100 yuan, he sells it for 80-90 yuan, and the price is not too low, making it difficult for people to recognize it as a fake at a glance. When a mother and baby store approached him for wholesale, he used low prices to 'increase volume' Xie Li told reporters from China Youth Daily and China Youth Net that after investigation, many of Liu's products were purchased by offline physical stores that operate mother and baby products, becoming one of the sources of counterfeit sales. During the process of handling criminal cases, Nanshan Procuratorate synchronously reviews clues related to civil infringement, administrative violations, and public interest litigation, guiding public security organs to conduct investigations and evidence collection work in both criminal and public interest litigation cases, and comprehensively clarifying the basic facts of the cases. Among the counterfeit milk bottles and nipples sold by Liu, there is a type of plastic bottle with the appearance labeled "Beiqin Natural Sensing Caliber PPSU Plastic Bottle, Free of Bisphenol A". In accordance with the principle of protecting the health of the people, especially infants and young children, Nanshan Procuratorate has entrusted the Judicial Appraisal Center to conduct testing on the material and composition of the involved milk bottles based on its authority. The appraisal results show that the main material of the plastic bottle involved is polycarbonate, which will decompose into toxic substance bisphenol A when exposed to high temperature, causing serious impact on human health. Data shows that bisphenol A is a raw material for various polymer materials such as polycarbonate and epoxy resin, but it can migrate into food through food packaging materials and containers, with potential reproductive toxicity that can interfere with normal sexual development in children, easily lead to precocious puberty, and affect the nervous and immune systems. As early as May 2011, the former Ministry of Health and six other departments jointly issued a notice requiring a ban on the use of bisphenol A in baby bottles starting from June of that year. In the national food safety standard "Plastic Resins for Food Contact" (GB4806.6-2016) released in October 2016, it was also required that polymers containing bisphenol A should not be used in the production of food contact materials and products specifically for infants and young children. According to statistics, the amount of PPSU plastic bottles (excluding nipples and glass bottles) sold by Liu is RMB 45150.8. The act of selling counterfeit goods infringes the legitimate rights and interests of unspecified infants and children at the same time. "As the prosecutor in charge, I don't want to limit myself to handling cases." Xie Li told the reporter of Zhongqing Daily and Zhongqing. com that at first, this case was transferred as a case of intellectual property infringement. In the handling of similar cases in the past, in many cases, only attention was paid to whether the suspect constituted trademark infringement, and identification of identity and similarity was carried out, ignoring the identification of whether the product itself contained toxic and harmful substances. She used the example of selling "fake Maotai liquor": "Maotai" is a famous trademark. Selling counterfeit Maotai liquor, if the liquor itself is not identified and only trademark infringement is identified, it may only constitute the crime of selling counterfeit registered trademark goods. But is it really inferior or fake? If the liquor itself is not a problem, there are no toxic or harmful substances, and drinking it does not harm the human body, that is not a problem. But what if it is fake liquor or industrial alcohol blended? At the same time, it is suspected of the crime of selling fake and inferior products. Obviously, the subjective malice of the latter is more serious. "" The identification results of the involved milk bottle also confirm that toxic and harmful materials were used, seriously infringing on non-specific infants and young children. Legitimate rights and interests are another important nature of the case, "Xie Li explained. According to legal provisions, The judicial authorities shall convict and punish according to the provisions of the heavier punishment between the two charges. Therefore, the Nanshan Procuratorate has filed a public prosecution against Liu on suspicion of selling counterfeit registered trademark goods. Crimes of infringing intellectual property rights not only seriously disrupt the socialist market economy order and infringe upon the legitimate rights and interests of rights holders, but sometimes may also endanger the health of the people and harm the public interest. However, some suspect may think that going to prison has little to do with him, and they are more concerned about monetary punishment. " For this reason, the case handling team proposed the idea of bringing a civil public interest litigation attached to criminal proceedings, so that the suspect can bear punitive compensation and increase the cost of violation, thus playing a demonstration and warning effect. Whether this case belongs to the statutory field of public interest litigation has become another difficult problem encountered by Xie Li's case handling team. At present, there are 22 laws in China that provide provisions for public interest litigation, involving 14 areas such as ecological environment and resource protection, food and drug safety, state-owned property protection, and state-owned land use rights. However, intellectual property cases are not included. The investigation team conducted a detailed legal study on this matter. According to Articles 2 and 41 of the Food Safety Law and Article 106 of the Law on the Protection of Minors, the team confirmed that this case infringed upon the legitimate rights and interests of unspecified infants and young children. The procuratorial organ may file a civil public interest lawsuit in accordance with the law. The Nanshan Procuratorate believes that whether it harms the public interest should be based on whether there are potential risks to food safety for numerous non-specific consumers, including not only the damages that have already occurred but also situations with significant risks of harm. Liu Mouming knew that the goods he was selling were counterfeit registered trademarks, but he still sold them to many consumers through the internet, without providing important information such as product quality and performance to consumers truthfully and comprehensively, seriously infringing on consumers' right to know and right to choose; In addition, the involved milk bottle is a container used for food and belongs to food related products. It should comply with laws, regulations, and national food safety standards. The involved milk bottle violates relevant prohibitive regulations, seriously endangers the health of infants and young children, and damages the public interest. Based on this, the Nanshan Procuratorate believes that Liu's production and sale of counterfeit milk bottles and pacifiers not only infringe upon the legitimate rights and interests of intellectual property rights holders, but also infringe upon the legitimate rights and interests of consumers. Therefore, in accordance with the relevant provisions of the Consumer Rights Protection Law, Liu should bear punitive damages at three times the sales price. On April 11, 2023, Nanshan Procuratorate conducted a pre litigation announcement procedure for public interest litigation cases in accordance with the interpretation of the "Two Highs" on the application of laws in public interest litigation cases. If consumers or consumer associations file a lawsuit, they will prioritize it, "Xie Li explained. On September 20, 2023, the Nanshan District People's Court made a first instance judgment supporting all the claims of the Nanshan Procuratorate for punitive damages to public interests that forced the cessation of counterfeit production and sales. Liu was sentenced to ten months in prison and fined for the crime of selling counterfeit registered trademark goods. He was also ordered to bear a public interest damage compensation of RMB 135452.4 and must publicly apologize on national news media. The judgment has come into effect and the people's court has transferred it for compulsory execution. The Supreme People's Procuratorate pointed out in analyzing the typical significance of this case that the infant and toddler group is a group that requires special and priority protection according to national laws. Selling counterfeit registered trademarks and products specifically designed for infants and young children containing toxic and harmful ingredients not only disrupts the market economic order, but also endangers the physical health of infants, young children, and other minors, seriously damaging the public interest. The procuratorial organs adhere to the active performance of their duties in accordance with the law, supervise the safety of food related products, strictly grasp the criteria for determining public interest damages, accurately apply punitive damages for public interest damages, increase the cost of infringement for violators, and deter illegal activities. According to Xie Li's understanding, in the circle of producing and selling counterfeit goods, the triple punitive damages make many people have to "weigh it". The more they sell, the higher the cost of illegal activities, which forces them to stop producing and selling counterfeit goods, "she said. This public welfare compensation has been nationalized. The compensation for public welfare damages should be used for the benefit of the people. Currently, there is no specific law for public welfare litigation. Shenzhen has established an ecological environment protection fund based on the first local regulation on ecological environment public welfare litigation, the "Regulations on Ecological Environment Public Welfare Litigation of Shenzhen Special Economic Zone," to be used for ecological environment protection and restoration in Shenzhen. Xie Li said, "The procuratorial organs are also conducting research and hope to promote a special protection fund in the food field in the next step, so that this compensation can be better used to protect consumers' food and drug safety
Edit：Lubaikang Responsible editor：Chenze
Source：zqb.cyol.com
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