*CPT Selected Articles

Criminal Penalty for IP Right Infringement under the Chinese Criminal Law

Liu Xiaohai

As Article 61 of the TRIPS Agreement requires, members shall provide for criminal procedure and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale; members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular, where it is committed willfully and on a commercial scale. Section 7 of Chapter III Crimes of Disrupting the Order of the Socialist Market Economy of the Criminal Law as revised in 1997 has provided for seven crimes of and penalties for IP infringement. The crimes are: the crime of counterfeiting registered trademarks (Article 213), crime of selling goods bearing counterfeit registered trademarks (Article 214), crime of illegally making registered trademark representations and selling registered trademark representations illegally made (Article 215), crime of passing off patents (Article 216), crime of copyright infringement (Article 217), crime of selling infringing reproductions (Article 218), and crime of trade secret infringement (Article 219). Directing to the inadequate handling of crimes of IP infringement in practice and intending to enhance criminal penalty for such infringement, the Supreme People's Court and the Supreme People's Procuratorate issued in December 2004 the Interpretation of Several Issues Relating to Specific Application of Law to the Treatment of Criminal Cases of Intellectual Property Infringement, (the Interpretation for short), which comprises 17 Articles elaborating the provisions of the Criminal Law for the crimes of IP infringement. Following is an exploration of the criminal penalty for IP infringement under the Chinese Criminal Law made according to the provisions of the Criminal Law and the Interpretation.

1. Crime of Counterfeiting Registered Trademarks

Under Article 213 of the Criminal Law, the crime of counterfeiting registered trademarks refers to acts of "using, without permission from the owner of a registered trademark, a trademark which is identical with the registered trademark on the same class of goods with serious circumstances". The Interpretation has defined the "identical trademark" and "use". Under Article 8, paragraph two of the Interpretation, the word "use" shall mean "use of a registered trademark or a counterfeit registered trademark on goods, packages or containers and product specifications, goods trading instruments, or use of a registered trademark or a counterfeit registered trademark in advertisement, promotion, exhibition and other business activities". According to this, use of a registered trademark is an active use, excluding passive non-use. For example, "reverse trademark counterfeiting", which constitutes civil infringement, does not constitute the "use" in the crime of counterfeiting registered trademarks.

Under Article 8, paragraph one of the Interpretation, "the 'identical trademark' shall refer to a trademark that is exactly identical with or is not so visually different in a substantially way from the counterfeited registered trademark and that it is sufficient to mislead the public". Therefore, the identical trademark should not be merely construed as a trademark exactly the same in words, form, meaning, colour and device, and a trademark, without substantial visual difference, and sufficient to mislead the public, is also an identical trademark. However, it is worth mentioning that the Interpretation further requires that the identical trademark without substantial visual difference be sufficient to mislead the public". This is equal to saying that it is possible for trademarks without substantial visual difference not to "be sufficient to mislead the public". Hence, it is also necessary to examine whether a trademark is sufficient to mislead the public, which is worth looking into. As far as trademark infringement is concerned, "being sufficient to mislead the public" is always the standard for judging "similar trademarks", not for judging "identical trademarks".¹ Adding "sufficient to mislead the public" when judging whether a trademark is identical or not is apt to confuse "identical trademarks" with "similar trademarks".²

Article 1 of the Interpretation states the specific standards for defining "serious circumstances" ³ and "especially serious circumstnaces"⁴ as a condition for heavier penalties, but the standards are not exhaustive, and still leave room for "other serious circumstances" and "other especially serious circumstances". As this Article shows, whether the circumstances are serious or especially serious is closely related to the amount of illegal business turnover or illegal profit. What remains unclear is whether counterfeiting a well-known trademark would fall within the two circumstances not defined when it is impossible to prove that the illegal business turnover or illegal profit is the prescribed amount.

It should be pointed out that the Interpretation has not spelt out a new interpretation of the "same class of goods". As Article 52 (1) of the Trademark Law shows, the same class of goods does not include similar goods. The same class of goods should be judged according to the International Classification of Goods and Services for the Purpose of the Registration of Marks. Goods in respect of which a registered trademark is approved to be used are those of "the same class"⁵. However, the Research Office, the Third Civil Tribunal and the Second Criminal Tribunal of the Supreme People's Court hold in the Investigation Report on Issues Relating to Criminal Protection of the Intellectual Property that judgement on the same class of goods should be made by the judges on the basis of the comprehensive examination "according to the relevant public's general awareness of the goods and the International Classification of Goods and Services for the Purpose of the Registration of Marks". In the light of this view, it seems that the judges may decide that goods in the same class are not goods of the same class, or vice versa, on the basis of the facts in a case. The view that a judge's subjective will is imposed in the presence of objective standards is open to question since it makes the clear definition unclear. This is something not desirable in the criminal law.

Besides, according to the mainstream viewpoint in the jurisprudential community, "goods" here do not include "services".⁷ Broadly speaking, goods also include services, and services are also goods. Article 4, paragraph three of the Trademark Law provides that the provisions relating to trademarks also apply to service marks. Article 59, paragraph one of the Trademark Law also provides that "where any party, without the authorisation from the trademark registrant, uses a trademark that is identical with a registered trademark in respect of the same goods, if it constitutes a crime, the party shall be prosecuted, according to law, for his/its criminal liabilities in addition to compensating the losses the infringee suffers". However, this does not show that counterfeiting service mark also constitutes a crime of counterfeiting registered trademark for these reasons. First, the Trademark Law has made a distinction between the trade marks and service marks; and second, it is impossible to determine under the Trademark Law whether trade mark infringement constitutes a crime. Article 213 of the Criminal Law must be referred to again. For that matter, the act of counterfeiting a service mark does not constitute a crime of counterfeiting a registered trade mark.

2. Crime of Selling Goods Bearing Counterfeit Registered Trademarks

Under Article 214 of the Criminal Law, the crime of selling goods bearing counterfeit registered trademarks refers to acts of knowingly selling goods bearing counterfeit registered trademarks, with the amount of sales relatively large". Article 2 of the Interpretation specifies that "the relatively large amount" is RMB 50,000 yuan or more, and that the "huge amount" for imposing heavier penalty is RMB 250,000 yuan or more. Article 9 of the Interpretation has defined the "amount of sales" and "knowingly", under paragraph one of which the amount of sales refers to "all the illegal income that has been made or should obtain after selling goods bearing counterfeit registered trademarks". Here, the amount of sales includes the income an actor has obtained and the income he/it may obtain under a contract or as agreed, but the mere value or price of the goods in stock is not the amount of sales,⁸ which has nothing to do with whether the actor has made his/its profits or how much the profits are. As long as the amount of sales is large, the actor has committed a crime even if he/it suffers a loss. Under Article 9, paragraph two, "knowingly" means the circumstances where:

"(1) one knows that the registered trademark on the goods he sells has been altered, replaced, or covered;

(2) one who has been imposed administrative penalty or civil liability before for selling goods bearing a counterfeit registered trademark sells the same goods bearing the counterfeit trademark again;

(3) one forges or alters a trademark registrant's authorizing document or knows that said document has been forged or altered; and

(4) any other circumstances where one knows or should have known that the goods are those bearing a counterfeit registered trademark....".

Importance should be attached to (1) and (4) since (1) refers to how to understand "counterfeiting registered trademarks"; (4) how "should have known" and "knowingly" are related to each other. The relation between "should have known" and "knowingly" will be discussed under subtitle 8. We only deals with (1) for the time.

While the provision of (1) refers to one of the circumstances of "knowingly", it relates to the meaning of "counterfeiting registered trademarks" in the crime of selling goods bearing counterfeit registered trademarks. According to the provision of (1), the "counterfeiting registered trademarks" under Article 214 of the Criminal Law includes not only the act of counterfeiting registered trademarks provided for in Article 213 of the Criminal Law, but also acts of erasing, altering, replacing or covering others' registered trademarks. In other words, the "counterfeiting registered trademarks" has a wider meaning in Article 214 than in Article 213, which should be said to be a breakthrough.¹⁰ The resulting legal consequence is that while the acts of erasing, altering, replacing or covering others' registered trademarks do not constitute the crime of counterfeiting registered trademarks. For Article 213 of the Criminal Law expressly provides that constitution of the crime of counterfeiting registered trademarks requires the use of a trademark identical with a registered trademark on the same class of goods. However, acts of knowingly selling goods bearing erased, altered, replaced or covered others' registered trademarks may constitute the crime of selling good bearing counterfeit registered trademarks. Then, are there legal grounds for the different interpretations of "counterfeiting trademarks" in relation to the crime of counterfeiting registered trademarks and the crime of selling goods bearing counterfeit registered trademarks? The answer is affirmative. Under Article 52 (4) of the Trademark Law as revised in 2001, such act constitutes an infringement of the trademark right as replacing another party's registered trademark, without authorisation, and selling goods bearing such a replaced trademark. That is to say, under the Trademark Law merely changing trademarks does not constitute an infringement of the trademark right, and only marketing goods bearing changed trademarks infringes the registered trademark owners' right to use their registered trademarks. Now that the act of changing trademarks does not constitute an infringement of the trademark right, there is not the issue of crime of counterfeiting registered trademarks. However, it cannot be concluded that merely erasing, altering, replacing or covering others' registered trademarks does not constitute a crime under all circumstances. If a person who erases, alters, replaces or covers others' registered trademarks knows his entruster is going to commit the crime of infringement of the IP right and helps him do so, he may be prosecuted as an accomplice for committing the crime of selling goods bearing counterfeit registered trademarks under Article 16 of the Interpretation.¹¹

It should also be mentioned that before the Interpretation was issued, Article 4 of the Records of the First Meeting Held in 2002 among the Economic Crime Investigation Bureau of the Ministry of Public Security the Trademark Office, Fair Trade Office of the State Administration for Industry and Commerce, and the Co-ordination Division of the State Intellectual Property Office have listed the circumstances of "knowingly": 1) altering or replacing trademarks on goods one sells is caught on the spot; 2) where a punished crime is committed again; 3) where one refuses to make rectification despite advance warning; 4) where one intentionally buys in goods from undue supplier at much lower price than that of the known certified goods; 5) where one practices fraud in financial records, such as sales slips and account books; 6) where a specialised business sells, on a large scale, goods bearing counterfeit registered trademarks or goods bearing infringing trademarks; 7) where one destroys material evidence, and/or provides false proofs and information when one's wrongdoing is revealed; and 8) any other circumstances where it is possible to determine that an interested party has done it knowingly.¹² Article 2, paragraph two of the Notice on Printing and Issuing the Records of the Forum on Issues of Application of Law to Handling Criminal Cases Involving Counterfeit and Shoddy Tobacco Products issued by the Supreme People's Court, Supreme People's Procuratorate, the Ministry of Social Security and State Tobacco Administration in December 2003 has listed the circumstances of "knowingly" in crime of selling counterfeit and shoddy cigarette and tobacco products as follows: 1) where buying in goods at a price obviously lower than the market price; 2) where selling at a price obviously lower than the market price; 3) where transferring, destroying material evidence or providing false proofs and information after selling tobacco products bearing counterfeit registered tobacco trademarks is discovered; 4) any other circumstances where it is possible to determine that an interested party has done it knowingly.¹³ By contrast, Article 9, paragraph two of the Interpretation has listed only four circumstances of the nature. Does this mean that the other circumstances are no longer deemed those of "knowingly"? One point that seems certain is that the preceding other circumstances do not unconditionally constitute those of "knowingly" any more, and determination must be made according the specific facts of a case.

Finally, the different meaning of "counterfeiting registered trademarks" resulting in the crime of selling goods bearing counterfeit registered trademarks and "counterfeiting registered trademarks" in the crime of counterfeiting registered trademarks in the provision of Article 9 of the Interpretation has naturally given rise to a question: must the "goods" in the crime of selling goods bearing counterfeit registered trademarks be the "goods of the same class" as those in the crime of counterfeiting registered trademarks? They are generally held in the jurisprudential community to be the goods of the same class because logically, the goods sold by an actor referred to in Article 214 of the Criminal Law are the goods bearing counterfeit registered trademarks under Article 213 of the Criminal Law.¹⁴ However, this relation is broken in Article 9 of the Interpretation: since acts of knowingly selling goods bearing altered, replaced or covered registered trademarks may constitute the crime of selling goods bearing counterfeit registered trademarks, the "goods" here may not be the same class of goods designated by registered trademarks; well-known registered trademarks may even not be limited to similar goods.

3. Crime of Illegally Making Registered Trademark Representations and Selling Registered Trademark Representations Illegally Made

Under Article 215 of the Criminal Law, the crime of illegally making registered trademark representations and selling registered trademark representations illegally made refers to acts of "forging or making, without authorisation of another person, representations of the person's registered trademark or selling such representations, with serious circumstances". Here, as for the crime of selling registered trademark representations illegally made, the representations of involved registered trademarks must be those illegally made; illegally selling registered trademark representations legally made, say with the authorisation from the rightholders, but obtained illegally, should not constitute such a crime.

Article 3 of the Interpretation states the specific standards for defining "serious circumstances" and "especially serious circumstances" as a condition for imposing heavier penalties, but the standards are not exhaustive, still leaving room for "other serious circumstances" and "other especially serious circumstances". What is unclear is whether the circumstances of illegally making or selling well-known registered trademark representations without the impossibility to prove how many the registered trademark representations have been illegally made, and whether the amount of sales or illegal profits have reached the standards under the Interpretation could be established as the "other serious circumstances" or "other especially serious circumstances".

Are registered service mark representations trademark representations as mentioned in Article 215 of the Criminal Law? The Interpretation fails to make it clear. Jurisprudentially, illegally making and selling registered service marks are also infringing acts. Article 215 also fails to clearly provide that they must be representations of registered trademarks, and it is quite plausible that the Interpretation's covering registered service marks does not go beyond the provision.¹⁷ In practice, however, it is almost impossible for illegally making registered trademark representations and selling registered trademark representations illegally made to be the "serious circumstances".¹⁸ It is hard to imagine that the illegally made and sold registered trademark representations reach the number of 20,000 or more, or the amount of illegal business turnover reaches RMB 50,000 yuan or more, or the amount of illegal profit reaches RMB 30,000 yuan or more. Quite the contrary, it is possible for illegally making registered service mark representations to be the "serious circumstance" of the crime of counterfeiting registered trademarks. But, the crime of counterfeiting registered trademarks under the Criminal Law is merely related to trade marks, not to service marks.

Must illegally made registered trademark representations be exactly identical or be not visually substantially different from registered trademarks? The answer to the question is affirmative since similar trademark representations should not be deemed representations of others' registered trademark. It is allowable for a rightholder to use a similar mark as a registered trademark. For it is an act of "self-alteration of registered trademark, and the act is contrary to the provision of Article 44 (1) of the Trademark Law.

4. Crime of Passing off Patent

Article 216 of the Criminal Law provides that the crime of passing off patent is an act of "passing off another person's patent, with serious circumstances". Article 10 of the Interpretation lists all the acts of passing off others' patents as follows:

(1) indicating, without authorisation, another person's patent number on the goods or packages of products one makes or sells;

(2) using, without authorisation, another person's patent number in advertisement or other promotional material so as to make people mistake the involved technology for another person's patented technology;

(3) using , without authorisation, another person's patent number in contract so as to make people mistake the technology covered in the contract for another person's patented technology; and

(4) forging or altering another person's patent certificate, patent documents or patent application documents.

It is shown that in essense, the crime of passing off patent is passing off others patent numbers. For that matter, acts, other than unauthorised use of others' patent numbers, such as unauthorised exploitation of others' patents, do not constitute the crime of passing off patent. It is irrelevant whether an involved product and a patented product are identical or similar. What is essential is illegal use of another person's patent number. Knowingly selling goods passing off a patent does not constitute the crime of passing off patent. The provision of Article 10 of the Interpretation is consistent with Rule 84 of the Implementing Regulations of the Patent Law as revised in 2001. As for the said act under (1), as long as another person's patent number is indicated, no matter how a third person understands it and whether the products are the patented products or those made with the patented process, the actor has passed off another person's patent; as for the above (2) and (3), it is required that an actor's use of another person's patent number cause people to mistake an involved technology for another person's patented technology. If others mistake it for the actor's own patented technology, one who uses another's person's patent number does not intentionally pass off another person's patent. However, acts of others' passing off patent are different from acts of passing any non-patented product off as patented one. If an act is not intentional to pass off another person's patent, and he merely indicates a patent number. Even if the patent number happens to be the same as another person's patent number, it should not be held to be an act of passing off another person's patent. It is merely an act of passing off a non-patented product off as patented one.

Article 4 of the Interpretation lists the specific standards for defining the "serious circumstances", which is also inexhaustive, leaving room for "other serious circumstnaces".¹⁹ For all the expressly listed circumstances there are requirement for the amounts, which may be those of illegal business turnover, illegal profit, or those of losses directly inflicted to a rightholder. However, Article 216 of the Criminal Law does not set forth any provision on additional penalty for "especially serious circumstances" of passing off others' patents, which is something different from the provision on the crimes of infringing other IP rights.

5. Crime of Copyright Infringement

Under Article 217 of the Criminal Law, the crime of copyright infringement refers to acts done "for the purpose of making profits, with one of the following circumstances of infringement of copyright, with the amount of illegal profit being relatively large, or with any other serious circumstances:

(1) reproducing and distributing a literal work, musical work, motion picture, television programme or any other visual work, computer software or any other work without permission of the copyright owner;

(2) publishing a book of which the exclusive right of publication is enjoyed by another person;

(3) reproducing and distributing an audio-visual recordings produced by another person without permission of the producer; or

(4) producing or selling a work of fine art with forged signature of the painter." Under Article 5 of the Interpretation, "the relatively large amount of illegal profit" means that the illegal profit is RMB30,000 yuan or more, and the "huge amount of illegal profit" means that the illegal profit is RMB 50,000 yuan or more.

Article 5 of the Interpretation has spelt out specific standards for determining "other serious circumstances" ²⁰ and "other especially serious circumstances" ²¹ as the conditions for imposing heavier penalty, and kept the embracing phrases "other serious circumstances" and "other especially serious circumstances". It is worth noting that according to Article 2 (2) of the Interpretation of Several Issues Relating to Application of Law to Trial of Criminal Cases Involving Illegal Publications issued by the Supreme People's Court in December 1998, "committing one of the acts of copyright infringement as mentioned in Article 127 of the Criminal Law within two years from the date of imposition of the administrative or civil liabilities twice for copyright infringement is one of the "other serious circumstances". But, now Article 5 of the Interpretation does not set forth any provision of the nature. Under Article 17 of the Interpretation, "any judicial interpretations issued before relating to crimes of intellectual property infringement which are in conflict with this Interpretation shall no longer be applicable upon entry into force of this Interpretation". Then, is the provision of Article 2 (2) of the Interpretation of Several Issues Relating to Application of Law to Trial of Criminal Cases Involving Illegal Publications in conflict with the present Interpretation? Literally, the two cannot be said to be in conflict. If they are not, this means that the former provision is still effective. Now that the former provision remains effective, why does Article 5 of the Interpretation not expressly provide to this effect? It can be inferred that in the absence of express provision to this effect in Article 5 of the Interpretation, the former provision should not unconditionally apply: copyright infringement committed within two years from imposition of administrative or civil liabilities is not necessarily one of the "serious circumstances"; copyright infringement committed after two years may be so.

Does "for the purpose of making profits" include "indirectly making profits"? Article 11, paragraph of the Interpretation specifies that "indirectly charging and collecting fees" by way of publishing paid advertisement shall be one "for the purpose of making profits". It is particularly worth mentioning that it is provided in Article 16 (6) of the Copyright Law that gifting-giving is one form of distribution. In general, the act of gift-giving is not to make profit, but it is possible for the act to be one for indirectly making profits. It is not desirable to say that the act of gift-giving is absolutely not for making profits.

What about "without authorisation from the copyright owner"? Article 11, paragraph two of the Interpretation has defined three circumstances: (1) lack of authorisation by the copyright owner; (2) forging or altering copyright owner's authorsation or licensing document; and (3) going beyond the authorisation or license. Here, it is for the first time specified in the criminal law that reproduction and distribution going beyond authorisation are also cases of "without authorisation from the copyright owner", which is of great importance to fighting against a licensee's act of infringement of a licensor's copyright. Is it possible to make a general conclusion from these provisions that going beyond the scope of authorisation constitutes lack of authorisation by rightholders, and, hence, serves as the condition for determining the crime of counterfeiting registered trademarks and that of passing off patent? This is jurisprudentially quite possible because it is obviously not reasonable to confine the circumstances of going beyond authorisation to the scope of the copyright and to hold going beyond authorisation to be a crime of copyright infringement. It is difficult to understand, however, that the Interpretation does not set forth a separate provision for interpreting the meaning of "without authorisation", nor does it interpret the meaning of "without authorisation" from producers of audio-visual recordings in Article 11 of the Interpretation.

Besides, it is worth attach importance to is that Article 11, paragraph three of the Interpretation presents a relatively broad interpretation of "reproduction and distribution", by including act of infringement of the copyright owners' "right of communication on information network" into the scope of "reproduction and distribution". Under paragraph three, "an act of communicating to the public on information network another person's literary, music, cinematographic, television or video work, computer software or any other work shall be deemed the "reproduction or distribution" provided for in Article 217 of the Criminal Law". The interpretation made along the line is of special significance. The acts of reproduction and distribution which infringes the right of communication on information network are easy to fall into the circumstance in which the amount of illegal profit is relatively large" or "other serious circumstances". Then, does "reproduction or distribution" mean an act, or does "reproduction", "distribution" or "reproduction and distribution" refer to three acts of the nature? The Interpretation has failed to make it clear. Let's refer to Article 3 of the Interpretation of Several Issues Relating to Application of Law to Trial of Criminal Cases Involving Illegal Publications which the Supreme People's Court issued in December 1998. The "reproduction or distribution" provided for in Article 217 (1) of the Criminal Law means the three acts of "reproduction", "distribution" or "reproduction and distribution". Furthermore, the Interpretation does not interpret whether the act of rental is one of "distribution", either. In Rule 5 (5) of the former Implemting Regulations of the Copyright Law treats rental as distribution, but in Article 10 of the Copyright Law as revised in 2001, the "right of distribute" and the "right of rental" are separately provided for, and the "right of distribution" does not contain "rental". If "rental" still constitutes "reproduction or distribution" in Article 217 of the Criminal Law, the Interpretation should have made this point clear. Since the Interpretation does not clarify the point to this effect, the act of rental does not constitute the crime of copyright infringement.²²

Finally, the Interpretation does not interpret "making, selling artistic works with forged name of another person". There are two types of forging others' names: the acts of forging others' names that constitute passing off works, that is, indicating on one's own or another person's work the name of a person who has created a similar or identical work; and the acts of forging others' names that do not constitute passing off works, that is, indicating on one's own or another person's work the name of a person who has not created a similar or identical work. It is very controversial whether the both types of acts constitute the crime of copyright infringement. The key to answering the question is to determine whether they constitute acts of copyright infringement. To do so, it depends on how the law defines the copyright, which is reflected in Article 10 of the Copyright Law as revised in 2001, and has nothing to do with Articles 46 and 47 thereof, which relate only to infringement liabilities, but are not meant to define the copyright. Article 10 of the Copyright Law provides that the copyright includes 17 personal and property rights, and the right that is directly related to forging others' names is the right of authorship. Under Article 10 (2), "the right of authorship is a right to indicate the identity of the author by indicating his name on his work". According to this definition, the right of authorship is the right for the author to indicate his name on his work, and non-author naturally does not enjoy the right. The author's right of authorship includes indicating, or not indicating, his name on his work. Indicating an author's name on his work without his consent also constitutes an infringement of the right of authorship.²³ Therefore, only an act of forging another persons' name that constitutes passing off works constitute an infringement of the right of authorship in the copyright; an act of forging another persons' name that constitutes passing off works that does not constitute passing off works should not be established as an infringement of the right of authorship. If the latter act is to be established as an infringement of the copyright, we have to refer to the provision of Article 10 (17) to establish the latter act of passing off as an infringement of the "other rights that should be enjoyed by a copyright owner". Since Article 10 (17) is a blank and open provision,²⁴ without any standards for right determination, the Interpretation has failed to interpret whether an act of forging another persons' name that constitutes passing off works that does not constitute passing-off is an act of infringing the copyright, which is really something missing.

6. Crime of Selling Infringing Reproductions

Under Article 218 of the Criminal Law, the crime of selling infringing reproductions means acts of knowingly selling reproductions mentioned in Article 217 of this Law for the purpose of making profits, with huge amount of illegal profits". It is seen that, though also selling infringing goods, the crime of selling infringing reproductions, unlike the crime of selling goods bearing counterfeit registered trademarks requires the elements of "for the purpose of making profits" and "huge amount of illegal profits". ("relatively large amount" does not constitute the crime). What is "huge amount"? Under Article 6 of the Interpretation, "huge amount" means that the illegal profit reaches RMB 100,000 yuan or more. What is "illegal profit"? The Interpretation does not provide for it. Article 17, paragraph two of the Interpretation of Several Issues Relating to Application of Law to Trial of Criminal Cases Involving Illegal Publications which the Supreme People's Court issued in December 1998 provides that the "amount of illegal profit" means the amount of income. Does this amount include the amount of income that one deserves? That is, is this the due amount of income under the contract or agreement. The "amount of sales" may be included with reference to the provision on the "amount of sales" of Article 9, paragraph one of the Interpretation. This should be plausible. The "amount of sales and "amount of illegal profit" are different in that the former includes costs and other expenses, and the latter does not. For that matter, the "amount of illegal profit" should be the total of profits made plus profit that should be made. If "the illegal profit" in the crime of selling infringing reproductions is merely construed as the income deducting the costs and other expenses, it is obviously not conducive to seriously punishing the criminal act of selling infringing reproductions.

7. Crime of infringement Trade Secret

Article 219 of the Criminal Law has provided for two crimes of trade secret infringement, namely direct and indirect trade secret infringements. Article 219, paragraph one of the Criminal Law provides that the crime of direct trade secret infringement is one having one of the following acts of trade secret infringement and inflicting heavy losses to the rightholder of a trade secret: (1) obtaining a rightholder's trade secret by theft, inducement, coercion or any other unfair means; (2) disclosing, using or allowing another to use the trade secret obtained from the rightholder by the means mentioned (1); or (3) disclosing, using or allowing another to use the trade secret one has obtained in violation of the agreement on the rightholder's requirement for keeping it confidential". Article 219, paragraph two of the Criminal Law providers that the crime of indirect trade secret infringement refers to acts of a third party who obtains, uses or discloses another person's trade secrets, which he clearly knows or should have known falls under the categories of the acts mentioned in (1) and which inflicts great injury; paragraph three has provided for the concept of trade secret, which refers to technological or business information which is unknown to the public, can bring economic benefits to the rightholder, and is of practical use and in respect of which the rightholder has adopted measures to keep it confidential"; and paragraph four has defined the rightholder, which refers to the owner of a trade secrets and one who is licensed permitted by the owner to use the trade secret".

The provision of Article 219 on the crime of trade secret infringement, very different from the provisions of the Criminal Law on infringement of the other IP rights, is mainly characterised in that (1) it is directly provided that using, disclosing or allowing others to use trade secret in violation of an agreement on or the a rightholder's requirement for confidentiality may constitute the objective features of the crime of trade secret infringement.²⁵ Besides, a former employee's use or disclosure of his former employer's trade secret he has legally internalised in violation of an agreement on or the a rightholder's requirement for confidentiality may also constitute the crime of trade secret infringement, which is an extraordinarily stringent provision;²⁶ and (2) it is expressly provided that a third party who "should have known that one who has made a trade secret available to him has illegal misappropriated (侵占) the trade secret may constitute the subjective feature for the said third party to have committed the crime of infringement of the trade secret, a provision which is absent in the provisions of the Criminal Law on other IP infringement. This issue will be addressed later on, so it is not belaboured here.

Furthermore, Article 7 of the Interpretation provides that whoever inflicts losses of more than RMB 500,000 yuan to a rightholder, he/it has done an act of "having caused heavy losses to the righthoder"; and whoever causes losses of more than RMB 2,500,000 yuan to the rightholder, he/it has committed an act that has "caused especially serious consequences". It is unclear whether "especially serious consequences" are limited only to economic losses, and whether there are other injuries that may be of "especially serious circumstances".

8. "Knowingly" as the Subjective Element of the Crime of IP Infringement

Under Articles 214 and 218 of the Criminal Law, the subjective element of "knowingly" is required for both the crime of selling goods bearing counterfeit registered trademarks and the crime of selling infringing reproductions. What "knowingly" means is not separately interpreted in the Criminal Law, which has only defined "intention" and "negligence". Article 14, paragraph one of the Criminal Law provides that "an intentional crime refers to an act committed by a person who clearly knows that his act will have harmful consequences to the society and who wishes, or allows, such consequences to arise, thus constituting a crime." Article 15, paragraph one of the Criminal Law provides that "a negligent crime refers to an act committed by a person who should have foreseen that his act is likely to have harmful consequences to the society and who fails to do so through his negligence or, having foreseen the consequences, readily believes that they can be avoided, so that the consequences do arise". Meanwhile, Article 15, paragraph two of the Criminal Law provides that "criminal liability shall be borne for negligent crimes only when the law so provides". According to the definitions made in the Criminal Law, "knowingly" is related to "intention", and "should foresee" to "negligence". In the interpretation made in Article 9, paragraph two of the Interpretation of what circumstances are those of "knowingly" as mentioned in Article 214 of the Criminal Law, "should have known" is equated to "knowingly". Under Article 9, paragraph two of the Interpretation, "knowingly" means that

"(1) one knows that the registered trademark on the goods he sells has been altered, replaced, or covered;

(2) one who has been imposed administrative penalty or civil liability before for selling goods bearing counterfeit registered trademark sells the same goods bearing the counterfeit trademark again;

(3) one forges or alters a trademark registrant's authorizing document or knows that said document has been forged or altered; and

(4) any other circumstances where one knows or should have known that the goods are those bearing a counterfeit registered trademark".

But what is doubtful is "should have known" does not occur in (1) and (3). Should the subjective feature of an actor in (1) and (3) be "knowingly" only? As the purpose of the Interpretation shows, the answer seems to be negative. Besides, if "should have known" is equivalent to "knowingly", it should not be limited to the crime of selling goods bearing counterfeit trademarks, but to all the crimes of IP infringement under the Criminal Law and "knowingly" per se under Article 16 of the Interpretation. The Interpretation does not specify the point. It should be pointed out that it is not only in the Interpretation of Several Issues Relating to Application of Specific Law to Handling Criminal Cases of Intellectual Property Infringement that "should have known" is equated to "knowingly". It is also the case with the Interpretation of Several Issues Relating to Application of Specific Laws to Handling Criminal Cases of Impairing Prevention and Control of Disasters such as Sudden Breakout of Contagious Diseases issued by the Supreme People's Court and the Supreme People's Procuratorate in May 2003, in Article 3, paragraph two of which the word "knowingly" in "knowingly selling medical equipment that does not confirms to the standards" is interpreted as "knowingly" or "should have known".²⁸ Besides, Article 2, paragraph two of the Notice on Printing and Distributing the Records of the Forum on Issues Relating to Application of Law to Handling Criminal Cases Involving Counterfeit and Shoddy Tobacco Products issued by the Supreme People's Court, Supreme People's Procuratorate, the Ministry of Public Security and the State Tobacco Administration in December 2003 provides that "knowly" means "know or should have known".²⁹

However, it is worth our consideration to equate "should have known" to "knowingly" by way of extended Interpretation. Firstly, the legal concept of "intention" under the Chinese Criminal Law is only related to " knowingly ", and not to "should have known". Secondly, Article 219, paragraph three of the Criminal Law expressly provides, in relation to a third party's infringement of trade secret, that "knowingly " or "should have known" are two parallel, alternative subjective elements. That is, the former does not contain the latter. This provision has its origin in Article 10, paragraph two of the Chinese Unfair Competition Law, and the latter provision has been made obviously under the influence of the Notation of Article 39 of the TRIPS Agreement. According to the Notation, the subjective feature of a third party's infringement of trade secret includes "have known", namely "knew" and "grossly negligent in failing to know". Therefore, even under the TRIPS Agreement, "should have known" should also be interpreted as being within the meaning of "negligence". Thirdly, it is the mainstream view in the jurisprudential community that "should have known" is within the meaning of "negligence",³⁰ which is consistent with the statutory definition of 搉egligence* under the Criminal Law. Fourthly, the criminal legislation of some foreign countries, even including the US Anti-Economic Espionage Act as of 1966, requires that the third party be intentional subjectively in that he/it knowingly infringes a trade secret. The US legislators emphasise that use of "knowingly" is to require that an accused actor must know or must have a firm belief that the information he or she is taking is in fact proprietary for someone to be convicted under this statute he must be aware or substantially certain that he is misappropriating a trade secret".³¹

9. Circumstances and Amounts as Objective Elements of the Crime of IP Infringement

Circumstances and amounts are what are required of the IP infringement crime. The circumstances are divided into two types: serious circumstance and especially serious circumstance, and on the especially serious circumstance are imposed heavier penalty. In general, circumstances are related to amount in that the seriousness of circumstances is determined according to the amounts. But, circumstances may involve other factors as well. As regards the crime of trade secret infringement, inflicting great losses is an ordinary serious circumstance, and inflicting especially serious consequences is an especially serious circumstance. The amounts are divided into those of illegal business turnover, illegal profit, sales and losses inflicted. The amounts are also relatively large and huge, and the huge amounts are circumstances in which heavier penalty is imposed. Normally, the relatively large amounts is required for the constitution of all the crimes of IP infringement, except the crime of selling infringing reproductions, which requires huge amount of illegal profit. The amount of sales is required for the constitution of the crime of selling counterfeit registered trademarks, and the amount of illegal profit is required for the constitution of the crime of selling infringing reproductions. Under Article 12, paragraph one of the Interpretation, the illegal business turnover "refers to the value of infringing products an actor makes, stores, transports and/or sells in the course of committing an act of intellectual property infringement. The amount of illegal business turnover is calculated specifically in three ways:

(1) the value of infringing products sold is calculated according to the actual price at which the infringing products are sold;

(2) the value of infringing products made, stored, transported and not sold is calculated according to the labeled price or the identified actual average price of the infringing products; and

(3) where the infringing products are not priced or the actual sales price is unlikely to be found, the value is calculated according to the market intermediate price of the infringing products".

As for repeated IP infringement, are the relevant amounts should be cumulatively calculated? Article 12, paragraph two of the Interpretation provides that "where repeatedly committed acts of intellectual property infringement are not administratively dealt with or criminally punished, the illegal business turnover, illegal profit or amount of sales is calculated cumulatively". According to this provision, it seems that civil ruling or civil reconciliation has no effect on the cumulative calculation of relevant amounts. For example, an actor counterfeits a registered trademark, and yields the illegal business turnover amounting to RMB 40,000 yuan. If he counterfeits the registered trademark again after his act was administratively handled and his illegal business turnover is less than RMB 50,000 yuan, it, then, should not be determined that he has committed the crime of counterfeiting the registered trademark. If he counterfeits the registered trademark again only after the civil trial or civil mediation, the amount of his illegal business turnover is cumulatively calculated, and he has committed the crime of counterfeiting the registered trademark. Thus, the administrative enforcement taken not at the request of a rightholder does harm to the protection of a rightholder's interests, and to the deterrent force of the criminal penalty. It should be stressed here that under Article 12, paragraph two of the Interpretation, what should not be cumulatively calculated in cases of acts handled administratively or punished criminally are the relevant amounts that are ascertained and serve as the basis for weighing the penalty or sentencing. If the amounts are not ascertained at the time and large amounts are found out later, the later amounts should be cumulatively calculated.

Besides, since for the crime of selling goods bearing counterfeit registered trademarks to be constituted, there must be prescribed amount of sales, and for the crime of selling infringing reproductions there must prescribed illegal profit, are there circumstances of abortive attempts to commit the two crimes? It is provided in Article 2, paragraph two of the Interpretation of Several Issues Relating to Application of Specific Laws to Cases of Making and Selling Counterfeit and Shoddy Goods issued by the Supreme People's Court and Supreme People's Procuratorate in 2001 that where counterfeit or shoddy goods are not sold and the value of the goods is three times more than the amount of sales provided for in Article 140 of the Criminal Law, the act shall be punished as (abortive) crime of making and selling counterfeit and shoddy goods". According to this provision, it is impossible to remove the possible existence of the abortive attempts to commit the crimes of selling goods bearing counterfeit registered trademarks and selling infringing reproductions. Moreover, the abortive circumstances also exist with the crime of trade secret infringement. Deliberate infringement of a trade secret, which inflicts losses amounting to RMB 500,000 yuan to the rightholder constitutes the crime of trade secret infringement. Not inflicting losses amounting to RMB 500,000 yuan to the rightholder for reasons other than that of the infringer's own will may also constitute abortive crime.³² Such abortive crime "may be imposed light or lighter penalty mutatis mutaudis committed crime under Article 23, paragraph two of the Criminal Law".

10. Imposition of Criminal Penalty

For an ordinary crime of IP infringement the wrongdoer should be sentenced to the fixed-term imprisonment of not more than three years or criminal detention, and should also, or should only, be fined. On the crime of illegally making representations of registered trademarks or selling registered trademark illegally made may also be imposed surveillance, which differs from detention in that a wrongdoer under surveillance is not detained, but is merely restricted from free movement. The term of surveillance is three months to not more than two years. If one under surveillance works, he is equally paid for equal work. By contrast, a detained criminal is put in prison, and he can go home for one or two days a month. The term of detention is one month to not more than six mouths. The term is shorter than that of surveillance. If a detainee works, he is equally paid for equal work. The fixed-term imprisonment, detention, and surveillance are all criminal penalties restricting personal freedom. For an ordinary crime of IP infringement, a fine must be imposed no matter whether penalty is imposed or not for restricting personal freedom. Where the circumstances are especially serious, the amount of sales or illegal profit is huge or the consequences especially serious, the wrongdoer is sentenced to a fixed-term of imprisonment of three years to not more than seven years, and is also fined. That is to say, for a serious crime of IP infringement the wrongdoer must be both sentenced to a fixed-term imprisonment and fined.

Under Article 220 of the Criminal Law, an entity that commits the crime of IP infringement is fined, and the directly responsible leading persons or other persons directly responsible are punished according to the relevant provisions of the Criminal Law on the crime of IP infringement. Under Article 15 of the Interpretation, any entity committing the acts provided for should be established as committing a crime and sentenced with a punishment three time as serious as one that would otherwise be imposed on an individual for the crime. Fining the entity does not free the responsible person concerned from being fined. They must also be fined. In case of a crime committed by an entity, should the responsible person concerned be restricted form personal freedom? Theoretically, where an entity abortively commits a crime, its social harm is more serious than that done by an individual, so it is necessary to restrict his personal freedom.

The author: Professor of the Intellectual Property School of the Tongji University and Attorney-at-law of the Guohao Lawyers Group (Shanghai) Firm.

1. Article 9, paragraph one of the Supreme People's Court's Interpretation of Several Issues Relating to Application of Law to Trial of Cases of Civil Trademark Dispute: "the identicalness of trademarks under Article 52 (1) of the Trademark Law shall mean that the alleged infringing trademark is not essentially different in visual perception from the registered trademark of a plaintiff". Article 5 of the Opinions of the State Administration for Industry and Commerce on Several Issues Relating to Trademark Enforcement "identical trademarks refer to two trademarks that are identical in word, device or the combination of the two or lack visible differences when compared with one another". Here is not mentioned "sufficient to mislead the public".

2. For the same viewpoint see Shi Weizhong's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishign House of Law, 2004, Pp. 86-87; for the different viewpoint see Zhao Bingzhi and Tian Hongjie, A Comparative Study of Crimes of IP Infringement, the Publishign House of Law, 2004, p.118; and Gao Xiaoying, Establishment and Handling of Crimes of IP Infringement, the China Audit Publishing House, 1998, P.50.

3. Article 1, paragraph one of the Interpretation: serious circumstances "refer to (1) the illegal business turnover is more than RMB 50,000 yuan, or the illegal profit is more than RMB 30,000 yuan; (2) two or more registered trademarks are counterfeited, with the illegal business turnover being more than RMB 30,000 yuan or the illegal profit more than RMB 20,000 yuan; and (3) other serious circumstances.

4. Article 2, paragraph two of the Interpretation: "especially serious circumstances" refer to (1) the illegal business turnover is more than RMB 250,000 yuan, or the illegal profit is more than RMB 150,000 yuan; (2) two or more registered trademarks are counterfeited, with the illegal business turnover being more than RMB 150,000 yuan or illegal profit more than RMB 100,000 yuan; and (3) other serious circumstances.

5. See Shi Weizhong's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishign House of Law, 2004, Pp. 86-87; Zhao Bingzhi and Tian Hongjie, A Comparative Study of Crimes of IP Infringement, the Publishign House of Law, 2004, Pp.118---119; Geng Fali's article in Zhao Bingzhi (ed.), A Comparative Study of Crimes of IP Infringement, the China Fangzheng Publishing House, 1999, P.94; Dang Jianjun (ed.), Crimes of IP Infringement, the China People's Public Security University Press, 2003, P.13.

6. The Guide and Reference to IP-related Trial, (vol.7), the Publishign House of Law, 2004, P.122.

7. See Shi Weizhong's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishign House of Law, 2004, P.100; Zhao Bingzhi and Tian Hongjie, A Comparative Study of Crimes of IP Infringement, the Publishign House of Law, 2004, Pp.128---129; Geng Fali's article in Zhao Bingzhi (ed.), A Comparative Study of Crimes of IP Infringement, the China Fangzheng Publishing House, 1999, P.92; Dang Jianjun (ed.), Crimes of IP Infringement, the China People's Public Security University Press, 2003, Pp. 9-10.

8. See Shi Weizhong's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishign House of Law, 2004, Pp.113-114.

9. Dang Jianjun (ed.), Crimes of IP Infringement, the China People's Public Security University Press, 2003, P. 32.

10. It is generally held in the jurisprudential community that counterfeiting registered trademarks as mentioned in Article 214 of the Criminal Law refers to such circumstances as provided for in Article 213 of the Criminal Law, See Shi Weizhong's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishign House of Law, 2004, P. 112; Geng Fali's article in Zhao Bingzhi (ed.), A Comparative Study of Crimes of IP Infringement, the China Fangzheng Publishing House, 1999, P. 104; Dang Jianjun (ed.), Crimes of IP Infringement, the China People's Public Security University Press, 2003, P. 31.

11. Article 16 of the Interpretation: "whoever clearly knows that another person commits a crime of intellectual property infringement and still provides him with loan, capital, bank account number, invoice, certificate, license certificate or place for production or business operation, services of transport, warehouse or import or export agency, or any other facilities or assistance, he/it shall be punished for accomplice of the intellectual property infringement".

12. The China Trademark Report (vol. 1), 2003, the CITIC Publishing House, P.125.

13. The China Trademark Report (vol. 1), 2003, the CITIC Publishing House, P.149.

14. See supra note 8.

15. The "serious circumstances" mean that "(1) the number of representations of registered trademarks forged or made without authorisation or that of sales of such representations forged or made without authorisation reaches 20,000 or more, or the illegal business turnover is more than RMB 50,000 yuan, or the illegal profit is more than RMB 30,000 yuan; (2) the number of representations of registered trademarks forged or made without authorisation or that of sales of such representations forged or made without authorisation reaches 10,000 or more, or the illegal business turnover is more than RMB 30,000 yuan, or the illegal profit is more than RMB 20,000 yuan; and

(3) there are other serious circumstances.

16. The "especially serious circumstances" mean that "(1) the number of representations of registered trademarks forged or made without authorisation or that of sales of such representations forged or made without authorisation reaches more than 100,000, or the illegal business turnover is more than RMB 250,000 yuan, or the illegal profit is more than RMB 150,000 yuan; (2) the number of representations of registered trademarks forged or made without authorisation or that of sales of such representations forged or made without authorisation reaches more than 50,000, or the illegal business turnover is more than RMB 150,000 yuan, or the illegal profit is more than RMB 100,000 yuan; and (3) there are other serious circumstances.

17. Dang Jianjun (ed.), Crimes of IP Infringement, the China People's Public Security University Press, 2003, Pp. 43-44.

18. Shi Weizhong's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishign House of Law, 2004, P.127.

19. Article 4 of the Interpretation: the serious circumstances mean that "(1) the illegal business turnover is more than RMB 200,000 yuan, or the illegal profit is more than RMB 100,000 yuan; (2) the patentee is directly inflicted economic losses of more than RMB 500,000 yuan; (3) two or more patents are passed off, the illegal business turnover is more than RMB 100,000 yuan, or the illegal profit is more than RMB 50,000 yuan; and (4) there are other serious circumstances.

20. Article 5, paragraph one of the Interpretation: "other serious circumstances" in copyright infringement mean that (1) the illegal business turnover is more than RMB 50,000 yuan; (2) the number of reproductions made or distributed without authorisation of the copyright owner of his/its literary, music, cinematographic, television or video work, computer software or other work is more than 1,000 pieces (copies) in total; and (3) there are other serious circumstances.

21. Article 5, paragraph two of the Interpretation: "other specially serious circumstances" in copyright infringement mean that (1) the illegal business turnover is more than RMB 250,000 yuan; (2) the number of reproductions made or distributed without authorisation of the copyright owner of his/its literary, music, cinematographic, television or video work, computer software or other work is more than 5,000 pieces (copies) in total; and (3) there are other serious circumstances.

22. Also see Zhao Bingzhi and Tian Hongjie, A Comparative Study of Crimes of IP Infringement, the Publishing House of Law, 2004, P.270, in which the authors believe that without revising Article 217 of the Criminal Law, the act of rental does not constitute the crime of copyright infringement.

23. See Liu Xiaohai, Act of Forging Author's Name That Does not Constitute Passing off Works, the Copyright, 1999, No. 6, Pp. 25-30.

24. As for the definition of the copyright, the embracing provision similar to the open provision of Article 10 (17) of the Copyright Law as of 2001 is missing in the Copyright Law as of 1990. Law provision of the kind should not be held to be justifiable. For it fails to specify whether "the other rights a copyright owner is entitled to" are created by law and administrative regulations or may be created by judicial interpretation or by a judge.

25. Thus, we are more justified to say that acts going beyond the scope of license or authorisation of registered trademarks, patent, or sound-recording/video-recording may also respectively be objective elements of the crimes of counterfeiting registered trademarks, passing off patents and copyright infringement.

26. As a criminal norm to protect the trade secret, the US Economic Espionage Act of 1996 and the German Unfair Competition Law do not provide that a former employee's divulging a trade secret he got to know during his employment may constitute a crime.

27. Article 16 of the Interpretation: "whoever clearly knows that another person commits a crime of intellectual property infringement and still provides him with loan, capital, bank account number, invoice, certificate, license certificate or place for production or business operation, services of transport, warehouse or import or export agency, or any other facilities or assistance, he/it shall be punished for accomplice of the intellectual property infringement".

28. Article 3, paragraph two of the Interpretation: "where a medical establishment or a person knows or should have known that the appliances for medical treatment or material for medical use are not compatible with the national and/or industrial standards set forth in the preceding provision for ensuring human health, but buy and use them with royalties paid, the act is established as a crime of selling appliances for medical use that are not compatible with the standards, and imposed heavy penalty".

29. The China Trademark Report (vol. 1), 2003, the CITIC Publishing House, P.149.

30. See Yuan Ming's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishing House of Law, 2004, Pp.319-320; Zhao Bingzhi and Tian Hongjie, A Comparative Study of Crimes of IP Infringement, the Publishing House of Law, 2004, P.338; Tian Hongjie' article in Zhao Bingzhi (ed.), A Comparative Study of Crimes of IP Infringement, the China Fangzheng Publishing House, 1999, P.308; Dang Jianjun (ed.), Crimes of IP Infringement, the China People's Public Security University Press, 2003, P.179; Su Caixia, Jurisprudential Thoughts on Criminal Protection of Trade Secret in Gao Mingxuan and Zhao Binzhi (ed.) A Criminal Study Series, the Publishing House of Law, 2000, Pp. 264-265; Zhang Mingkai, Criminal Study (Vol. Two), the Publishing House of Law, 1999, P. 679; also see Kong Xiangjun, Application and Amplification of the Unfair Competition Law, the Publishing House of Law, 1998, Pp.496-497; Liu Xiaohai, Rechtsschutz von Unternehmensgehimnissen, Vergleichende Untersuchung zum Schutzniveau des chinesischen Rechts im Vergleich mit dem deutschen und amerikanischen Recht", Peter Lang Press, 1999, P.148.

31. BNA's Patent, Trademark & Copyright Journal1996 (Vol. 52), P.624: " For a person to be prosecuted, the person must know or have a firm belief that the information he or she is taking is in fact proprietary for someone to be convicted under this statute he must be aware or substantially certain that he is misappropriating a trade secret..."

32. See Yuan Ming's article in Jiang Wei (ed.), A Study on Criminal Protection of IP Rights, the Publishing House of Law, 2004, Pp.341-342.