- Sold my own making counterfeit products with the logo of the famous brand. Got arrested by the Saitama Prefectural Police and detained on a charge of violation of Trademark Act (infringement action)…
- At auction sold a brand bag that I purchased abroad. The bag was fake. Got arrested by the police officer of the Hisamatsu Police Station of the Metropolitan Police Department and detained…
1. Violation of Trademark Act
“Trademark” means a mark which is used by business operators to distinguish their products or service. The trademark has the business operator’s brand image. Thus, the trademark right is to protect such a brand’s “mark” or “naming” as property.
The holder of trademark right and exclusive licensee (who can use trademark right exclusively as well as the holder of trademark right) can use the trademark exclusively.
An act of selling counterfeit brand-name products or counterfeit products and having them for a sale purpose violate the Trademark Act as the acts infringe on the trademark right or exclusive right to use of the famous brand.
An infringer of a trademark right or an exclusive right to use is to be punished by imprisonment with work for a term not exceeding ten years or a fine not exceeding 10,000,000 yen or combination thereof. (Article 78 of Trademark Act)
Any person who has committed an act that shall be deemed to constitute infringement of a trademark right or an exclusive right to use is to be punished by imprisonment with work for a term not exceeding five years or a fine not exceeding 5,000,000 yen or combination thereof. (Article 78(2) of Trademark Act)
Article 82(1)(1) of Trademark Act provides dual liability: where a representative of a judicial person or an agent, employee or other staff member of a judicial person or an individual has committed, in the course of performing social activities for the judicial person or individual, any act in violation of the Trademark Act mentioned above is to be punished by a fine not exceeding 300 million yen.
2. Bringing Counterfeit Brand-Name Products / Counterfeit Products to Japan – Violation of Customs Act
The act of buying counterfeit products / counterfeit brand-name products abroad and bringing them to Japan is the act of importing products that infringes the intellectual property right. This act violates the Customs Act.
In this case, an infringer of an intellectual property right is to be punished by imprisonment with work for a term not exceeding ten years or a fine not exceeding 10,000,000 yen or combination thereof. (Article 109(2) & (3) of Customs Act)
The products that infringe the intellectual property right such as counterfeit products / counterfeit brand-name products are to be suspended at the Customs to forfeit and dispose.
Not only when one went abroad and brought counterfeit products / counterfeit brand-name products wearing them but also when one bought counterfeit products / counterfeit brand-name products on an online shopping site and those products sent were found at the Customs, the act is a breach of the Customs Act as the act concerned constitutes the act of importing the products that infringe an intellectual property right.
▼Summary of Punishment Regarding Counterfeit Products / Counterfeit Brand-New Products
| Act that may constitute a crime | Punishment |
| Infringement of a trademark right such as selling counterfeit (brand-name) products (Article 78 of Trademark Act) | Imprisonment with work for a term not exceeding ten years or a fine not exceeding 10,000,000 yen or combination thereof |
| Constructive infringement such as having counterfeit (brand-name) products for sale (Article 78(2) of Trademark Act) | Imprisonment with work for a term not exceeding five years or a fine not exceeding 5,000,000 yen or combination thereof |
| Act of importing counterfeit (brand-name) products (Article 109 (2) of Customs Act) | Imprisonment with work for a term not exceeding ten years or a fine not exceeding 10,000,000 yen or combination thereof. |
In cases where a violation of Trademark Act matters regarding counterfeit products / counterfeit brand-name products, there is a possibility that fraud against a purchaser of the products may establish. Punishment of fraud is imprisonment with work for a term not exceeding ten years. (Article 246 (1) of the Penal Code)
Where a violation of Trademark Act and fraud are established, these crimes have a relationship of consolidated punishments (Article 45 of the Penal Code) As a result, the term of imprisonment with work is to be up to fifteen years. (Article 48 of the Penal Code)
More recently we have come to be able to buy any products personally through the Internet. For that, the number of cases that a lay person who is not a business operator got arrested for a violation of the Trademark Act are increasing.
Where one got convicted for a violation of the Trademark Act, it is going to be more likely that he/she will receive actual prison sentence if there are the circumstances that the amount of damage is large, the perpetration was systematic, or he/she played a leading role in the perpetration.
~Defense In Case Of Violation of Trademark Act / Customs Act~
1. Claim Decision Not To Prosecute / Innocence
Cases of violation of the Trademark Act / Customs Act are crimes of intent. It can be argued that there is no intent to violation of the Trademark Act / Customs Act in cases where in Japan one sold counterfeit products or counterfeit brand-name products which he/she had bought abroad without knowing that those products were counterfeit and brought them to Japan. In this case, it is better for you to consult with lawyer as soon as possible if you got arrested or investigated by police. After hearing from you the circumstances in a precise manner, lawyers will explain persuasively that there was no intent to violate the Trademark Act / Customs Act to public prosecutors or judges to lead to non-prosecution or innocence.
Once a public prosecutor decides not to prosecute, a criminal trial will not be held. For this, you will not get criminal record. If you gain non-prosecution, you can go back into society promptly.
2. Compensation / Out-of-Court Settlement Negotiations
Where there is no dispute over the facts of a crime in cases of violation of the Trademark Act /Customs Act, it is important to start compensation or out-of-court settlement negotiation promptly after fessing up the facts. If the out-of-court settlement was made prior to indictment, there is a possibility that a case would end with non-prosecution. If the out-of-court settlement was made after indictment, a judge might consider the fact that the out-of-court settlement was made when deciding appropriate punishment and reduce a sentence.
3. Claim of Mitigating Circumstances
When prosecuted for a violation of the Trademark Act / Customs Act, a lawyer aims for commutation of the sentence by showing the circumstances in favor of the accused to a judge. The specific factors to be taken into consideration regarding the sentence include motivation for committing a crime, a crime method, financial damage, role of the accused in committing a crime, whether the out-of-court settlement was made or not. Lawyers who are good at cases of a violation of the Trademark Act / Customs Act evaluate and assert these circumstances in appropriate way after grasping the complete picture of the case.
4. Early Release
Where one got arrested or detained in cases of a violation of the Trademark Act / Customs Act, his/her physical restraint may be extended for a long period of time. If extended the term of detention, you will have to miss work or school for a long time, which affects return to society after release. For that reason, lawyers who are good at criminal cases assert that the suspect / accused would not flee nor conceal / destroy evidence persuasively aiming at early release / bail.
At AICHI Criminal Cases Law Firm, you can receive the best legal advice by criminal lawyers who have rich experience in dealing with cases in a violation of the Trademark Act / Customs Act. Those lawyers personally provide with “free consultation”. In cases where the suspect got arrested, we provide with “the first interview service” which our lawyers personally go where the suspect is, at earliest on the day.
