Nipples and bottles are one of the most intimate companions of babies and infants in their growth. When babies drink milk, nipples are in direct contact with their mouths, so the safety of nipples should not be ignored. Recently, Minhang District People¡¯s Court in Shanghai (hereinafter referred to as ¡°Minhang District People¡¯s Court¡±) heard a case involving the sale of counterfeit bottles and nipples.

[Case Review]

According to the Defendant Chen XX, in early 2021, he bought a nipple for his baby, but unexpectedly it was counterfeit. He was angry at buying a counterfeit and shoddy commodity, but at the same time, he had an ¡°evil idea¡±: ¡°If I find a source of counterfeit commodities and buy counterfeit nipples and bottles at a low price, and sell them at a high price, then I can make a lot of money.¡±

After that, Chen XX bought counterfeit ¡°Pigeon¡± brand products at a price of RMB 4 for a nipple and RMB 25 for a bottle on a website, stored them in a warehouse outside the city, and sold them through the online store registered by him, with a sales volume of more than 3,000 orders. As of the case, the defendant Chen XX sold counterfeit brand bottles and nipples totaling more than RMB 150,000.

In February 2023, Minhang Branch of Shanghai Public Security Bureau searched the warehouse of Defendant Chen XX in accordance with the law, and seized a number of counterfeit Pigeon nipples and bottles at the scene. Upon identification by Shanghai Institute of Quality Inspection and Technical Research, the seized products did not comply with the national safety standards for food.

At the review and prosecution stage of the case, Chen issued a warning announcement in national media and made a public apology, promising to take measures such as recall, harmless disposal and destruction. During the trial of this case, the defendant Chen XX pleaded guilty and has withdrawn his illegal income.

[Case Study]

Minhang District People¡¯s Court held that the Defendant Chen XX knew that the commodities bear a counterfeit registered trademark but sold them, and the illegal income amounted to RMB 150,000, which was a serious circumstance, so his behavior constituted the crime of selling commodities bearing a counterfeit registered trademark.

Defendant Chen XX conceived the idea of purchasing counterfeit ¡°Pigeon¡± nipples from other channels at a price nearly three-quarters cheaper than that of normal products and selling them, so the Defendant subjectively knew that the commodities bear a counterfeit registered trademark. Pigeon Corporation is the right holder of registered trademarks such as ¡°Pigeon¡±, and the products approved for use of registered trademarks (Class 10) include teat nipples; baby bottles; nipples. The Defendant Chen XX used unauthorized registered trademarks such as ¡°Pigeon¡± on the nipples and bottles sold by his store registered on Taote. In view of the fact that Defendant Chen XX purchased the said commodities from a third party channel without labeling and assembling, and that the said illegal income amounted to more than RMB 50,000, which was a serious circumstance, so his behavior constituted the crime of selling commodities bearing a counterfeit registered trademark.

Comprehensively considering the nature, circumstances, degree of social harm, and remorse of the Defendant¡¯s criminal conduct, Minhang District People¡¯s Court sentenced the Defendant Chen XX to 10 months imprisonment and a fine of RMB 80,000 for the crime of selling commodities bearing a counterfeit registered trademark.

Parents attach great importance to the health of their babies. Some sellers are driven by interests to sell counterfeit baby and maternal products. The counterfeit, inferior and substandard products have an impact on famous and similar products, infringe on the trademark registrant¡¯s exclusive right to use the trademark, and at the same time disrupt the market order, harm the rights and interests of consumers, and most importantly, pose a huge hidden danger to the health and safety of babies.

According to Article 214 of the Criminal Law of the People¡¯s Republic of China, whoever knowingly sells commodities bearing counterfeit registered trademarks shall commit the crime of selling commodities bearing a counterfeit registered trademark. To constitute this crime, the following conditions shall be met:

First of all, the perpetrator must be subjectively aware, that is, knowing that the commodities bear a counterfeit registered trademark, but still selling them to obtain illegal benefits therefrom.

Secondly, the perpetrator objectively commits the act of selling commodities known to bear a counterfeit registered trademark. The ¡°sale¡± here should be broadly defined, including wholesale, retail, consignment, sales and other sales links.

Finally, the sales volume must be large. According to the Interpretation I of the Supreme People¡¯s Court and the Supreme People¡¯s Procuratorate Concerning Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights of 2004, whoever knowingly sells commodities bearing a counterfeit registered trademark shall, if the amount of illegal income is more than RMB 50,000, which is relatively large as defined in Article 214 of the Criminal Law of the People¡¯s Republic of China, be prosecuted.

The quality and safety of baby and maternal products is of paramount importance, and guarding the health of babies requires the efforts of all walks of life.

The People¡¯s Court reminds:

The parents: Baby and maternal products are related to the growth and development of infants and young children, and it is very important to buy maternal and infant products correctly. It is recommended to buy nipples and bottles from official channels and regular sellers. When buying, it is necessary to check whether it has the corresponding qualifications, read the content on the label carefully, see whether the material meets the national food safety standards and whether it reaches the level of infant use or consumption, and scan the anti-counterfeiting QR code on the outer packaging.

Sellers of baby and maternal products: The maternal and baby market is a very special consumer market, and safety and quality are always the core concerns of parents. On the one hand, it is important to purchase commodities from formal channels, and make sure that the higher-level distributors can provide business licenses, documents, and vouchers. On the other hand, it is necessary to adopt a ¡°zero tolerance¡± attitude towards the ¡°counterfeits¡± that infringe on the vital interests of distributors and consumers in the market. Once a counterfeit channel is discovered, it is necessary to make a complaint as soon as possible to ensure the integrity of the evidence and avoid interests of more consumers from being compromised.

[Relevant Laws and Regulations]

I. Criminal Law of the People¡¯s Republic of China

Article 214 Whoever knowingly sells commodities bearing a counterfeit registered trademark shall, if the amount of illegal income is relatively large or there is any other serious circumstance, be sentenced to fixed-term imprisonment of not more than 3 years, and/or shall be fined; or if the amount of illegal income is huge or there is any other especially serious circumstance, he shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years and shall also be fined.

II. Interpretation I of the Supreme People¡¯s Court and the Supreme People¡¯s Procuratorate Concerning Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights of 2004

Article 2 Whoever knowingly sells commodities which bear a counterfeit registered trademark shall, if the illegal income is more than RMB 50,000, which is ¡°relatively large¡± as stipulated in Article 214 of the Criminal Law, be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined.

If the amount of illegal income is more than RMB 250,000, which is ¡°huge¡± as stipulated in Article 214 of the Criminal Law, he shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 7 years and shall also be fined.

(Case prepared by: Xu Jieyun, Wang Yiyong, Chen Lingqing, and Li Yujie from Minhang District People¡¯s Court)