Suspended Prison Sentence in Shanghai for Criminal Trademark Infringement For Repackaging of Authentic Ferrero Rocher Chocolates
China IP Law Update
On August 19, 2021, the Shanghai Third Intermediate Court released a ruling on Weibo holding that the repackaging of authentic Ferrero Rocher chocolates that included printing of Ferrero Rocher labels without authorization is criminal trademark infringement. The defendant Liu procured high-count boxes of chocolates with low unit prices (e.g., 96 count) and repackaged the chocolates into smaller count boxes having higher unit prices (e.g., 8 count). While the chocolates themselves were authentic, Liu hired others to manufacture Ferrero Rocher packaging bearing their Ferrero Rocher trademarks without their authorization.
From July to September 2020, the police seized more than 490,000 items suspected of counterfeiting “Ferrero” chocolate outer packaging, involving more than 800,000 “Ferrero” related trademarks. After investigation it was determined that the seized products involved in the case were not authorized by the right holder and used the same trademark as the right holder’s registered trademarks. However, the investigation showed the actual chocolates to be authentic.
Further investigation showed that from 2018 to July 2020, the defendant Liu hired others to forge packaging materials bearing the registered trademark of Ferrero Rocher generating more than 5.65 million labels and paying more than 1.7 million RMB for them. On July 13, 2020, the defendant Liu was arrested and confessed the above-mentioned criminal facts.
The Court ruled that Liu was guilty of the crime of illegally manufacturing products bearing registered trademarks. This was a joint crime but the defendant Liu was the principal offender and should be punished in accordance with all the crimes in which he participated. The defendant Liu was punished lightly with a suspended sentence as he voluntarily pleaded guilty, paid compensation to the right holder, and paid a 300,000 RMB fine to the court.
The Judge said,
the defendant did not have licenses for food packaging, and could not guarantee that the hygienic environmental conditions of the packaging process and the health of the packaging personnel. There was a food safety risk, which brought safety hazards to the health of consumers. Therefore, the defendant’s behavior is of great social harm and meets the constitutive requirements of the crime of illegally manufacturing products bearing registered trademarks, and should be convicted and punished in accordance with the law.