Recently, a boss had a stroke of bad luck: he was fined 10,000 yuan and sentenced to one year in prison for selling counterfeit Tsingtao beer. Bosses should take this as a warning!

01 A Pile of Counterfeit Goods

Boss Ma started in the liquor business in 2011 as an individual operator. He rented a warehouse in Songjiang District, Shanghai, for wholesale and retail of alcoholic beverages.

As the saying goes, "A gentleman loves money but obtains it in a proper way." However, for personal gain, Boss Ma engaged in improper activities.

Starting in February 2015, Ma accepted, on several occasions, dozens of cases (12 bottles per case) of foreign liquor with counterfeit registered trademarks from others. These brands included Chivas Regal whisky, Black Label, Martell, Jack Daniel's, Hennessy, and Royal Salute. Ma paid in cash for all of them.

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In August of the same year, Boss Ma saw someone selling beer similar to Tsingtao beer in the market, and the business was good, so he came up with the idea of selling this kind of beer.

Thus, Boss Ma proactively called the salesperson to place an order. In total, he ordered two truckloads, amounting to 4,800 cases (24 bottles per case), at a purchase price of 45,000 yuan per truckload, which translates to about 19 yuan per case and about 0.8 yuan per bottle.

On October 22, 2015, public security officers arrested Boss Ma at his residence and seized various alcoholic beverages intended for sale: 146 bottles of Chivas Regal whisky, 98 bottles of Black Label, 72 bottles of Hennessy, 12 bottles of Martell, 24 bottles of Jack Daniel's, 6 bottles of Royal Salute, and 3,860 cases of Qingniao beer.

After appraisal, among the seized alcoholic beverages, except for 2 bottles of Black Label used for display in Ma's shop, which were genuine, all other foreign liquors and beers were products with counterfeit registered trademarks. The total market mid-price of the infringed products corresponding to this batch of goods was 470,000 yuan.

02 Complete Procedures, Not Counterfeit?

During the trial, Ma acknowledged the part concerning foreign liquor in the alleged crime of selling goods with counterfeit registered trademarks, but he disputed the facts regarding the beer.

Regarding the "Tsingtao beer" he sold, Ma argued that the beer in question was refilled by the manufacturer using recycled Tsingtao beer bottles, using the manufacturer's own registered trademark, and provided formal procedures, including business license, production permit, and inspection reports. He claimed it was beer produced by a legitimate manufacturer and therefore did not constitute counterfeit "Tsingtao beer" registered trademark goods.

According to Ma's recollection, the beer resembling "Tsingtao beer" was promoted door-to-door by the manufacturer's salesperson, who provided complete procedures and stated that the beer used recycled genuine Tsingtao beer bottles.

Although at first glance the packaging and bottle labels were similar to genuine Tsingtao beer, the bottles were in line with the state's advocacy for environmental protection and recycling, and it was a "edge-ball" (gray area) act.

Ma believed that although the beer in question was cheap, it was still regular and edible beer and did not infringe on Tsingtao Beer's registered trademark.

The Putuo Court held that whether Ma constituted the alleged crime of selling goods with counterfeit registered trademarks must be analyzed based on the statutory elements of the crime and the specific facts.

Ma claimed that the beer in question was made by affixing his own trademark on recycled bottles (which had embossed trademarks that could not be removed). This act is indeed different from those who proactively process molds and engrave "Tsingtao Beer" and embossed trademarks on beer bottles.

In this case, the paper labels on the beer bottles did not cover the embossed trademarks "Tsingtao Beer" and "TSINGTAO," and these embossed trademarks, compared with the trademarks on the paper labels, were larger in font, more prominent, and clearly visible.

Although the manufacturer of the beer in question noted on the label statements such as "The text or pattern on the container is not related to the product" and "The text on this container is not related to this product," these words were extremely small compared to the trademarks "Tsingtao Beer" and "TSINGTAO," which was sufficient to mislead the public, and it was difficult for ordinary consumers to distinguish them.

Furthermore, Ma had been engaged in liquor sales for a long time and knew the market prices and purchase channels of genuine products. Yet, he purchased and sold the beer in question knowing it was not genuine Tsingtao beer, and he should have known the approximate purchase price of genuine Tsingtao beer.

This shows that he had subjective intent to commit the crime of selling goods with counterfeit registered trademarks.

The Putuo Court pronounced the judgment in court: Ma, for the purpose of seeking illegal benefits, sold goods he knew to bear counterfeit registered trademarks, with the amount to be sold being huge, and his behavior constituted the crime of selling goods with counterfeit registered trademarks. He was sentenced to one year in prison, with one year of probation, and fined 10,000 yuan.

Bosses, this incident is a profound lesson. Don't think that selling imitations or playing edge-ball can escape criminal liability. In fact, doing so will never get away with it!

Finally, remember: don't be greedy for cheap and buy counterfeit goods!

Source: Eastday.com -END-