Amidst the escalating focus on online counterfeiting, piracy and patent infringement, online social media, such as WeChat are also becoming a source of infringing products, as documented in a Wall Street Journal article and other journals.
James Luo (罗正红), a prominent IP lawyer in China, has been following these developments in his blog, where he recently reported on a Supreme People’s Court promoting of ten model cases that promote “core socialist values” (最高人民法院关于弘扬社会主义核心价值观典型案例). One model case involved a couple that sold counterfeit goods through WeChat Moments, which was held to constitute the crime of selling commodities bearing counterfeit registered trademarks （微信朋友圈销售假冒注册商标的商品案）。
The reason for the insertion of the case according to the court, was to promote “honesty in business.” As the court noted:
“The case was a typical case of selling via microchannel marketing circle of friends, goods bearing counterfeit trademarks. …Compared with the traditional IPR criminal cases, the perpetrators of such crimes use relatively covert means, but the scope of their promotion and sale of counterfeit goods is broad with an adverse social impact. …Currently, the “Consumer Protection Law” and the “Rules for Network Transaction Management” do not have specific provisions addressing microchannel shopping, and microchannel marketers do not have to register their business with the State Administration for Industry and Commerce. The relevant laws and regulations need further improvement in this area. “
As the accused had intentionally sold a relatively large amount of counterfeit goods, the defendants were found guilty of the crime of selling commodities bearing counterfeit registered trademarks by the Shaoguan Zhengjiang District People’s Court of Guangdong Province. Sentences were imposed of 6 – 7 months and a fine of RMB 15,000.
In my opinion, this case appears to be headed in the right direction in terms of addressing the use of social media to commit IP crimes. The court suggests that the case was important to fill in the gaps in the current legislative regime based on technological changes – the way in which criminals do business online. This is a typical evolution for IP-related case law in the United States, where courts have a record of using existing statutory provisions to address emerging technologies or ways of doing business.
Why this case was categorized as promoting core socialist values? Perhaps it promotes socialist core values because it addresses problems in the market of unscrupulous unlicensed individuals who transact business without basic principles of good faith and fair dealing and is thus intended to send a policy signal to other courts and the legislative agencies.
How do these cases compare to other types of cases that the court is promoting? In my opinion, China is paying more attention to cases to guide judicial decisions and create a more predictable legal environment, with 20,000,000 court cases available on line and new regulations on publishing cases in effect. China is seeking to develop a Chinese style system of precedent, and has elicited much government and academic involvement, including scholarship in journals. These cases need to be compared to the efforts to become more transparent, promote “model cases”, the system of guiding cases, judicial interpretations, etc., which are all part of an evolving system intended to insure greater consistency of judicial decision making and address emerging issues.
Addendum of 1/1/2017: Here is a useful blog by Jeremy Daum from 31 August 2016 on the Beijing IP Court’s experiment in precedent, which lines up nicely with the perspective in my blog.