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JIA LAWYER Law Firm senior partner Mr. Xu Fadong and Mr. Bi Huabao successfully handled a counterfeiting registered trademark crime and the related series of cases through hardships, the case has been reversed several times, thrilling, and recently obtained a Chinese-style acquittal (the Procuratorate withdrew the case and did not prosecute) in a near-perfect ending.

This is a long journey from five and a half years of imprisonment to face life imprisonment prosecution, and then to innocence, but also a period from despair to hope and then to the inspirational poetry of the desperate, or a period of Jedi reversal of the criminal defense legend. It witnesses JIA LAWYER's relentless pursuit of justice, and also witnesses JIA LAWYER's pivotal role in the realization of fairness and justice.

I. Woe from heaven: sentenced to five and a half years in prison in the first instance

2022 In August, the haze of the epidemic has not yet dissipated. Zhang Moumou (a pseudonym), who has been in the medical equipment distribution industry for many years, was suddenly wanted on the Internet. He was full of doubts, he has been law-abiding business, how could he be suspected of a crime? So, accompanied by his family, he resolutely to the local public security organs, trying to clarify the facts. However, fate has played a cruel joke on him, this go, he was detained for nearly three years (1025 days).

After arriving at the case, Zhang Moumou learned that he was involved in the purchase, sale and export of gloves during the 2020-2021 epidemic and was reported by his partner, Company A, for counterfeiting a registered trademark, with the amount of money involved amounting to more than 20 million yuan. He hastened to explain to the public security authorities that it was his brother's Company B that was engaged in the business, and that there was a cooperation agreement between his brother's Company B and the reporting party, Company A, with authorization for the use of the brand, and that it would never be possible to counterfeit the registered trademark. However, the informant Company A insisted that the gloves they packaged and sold in the late stage of cooperation were not reported to it, which belonged to the unauthorized consent of counterfeiting, and produced the product identification report. In front of the so-called “ironclad evidence”, the authorities believe that even if there is no confession can be determined, and ironclad case! Zhang Moumou's several lawyers have also advised him to plead guilty and admit punishment in order to seek a lighter penalty. In desperation, he had to bow before the reality, but in exchange for a year of imprisonment is not a fantasy, but five and a half years in prison, and a huge amount of fine sentence. When he received the first instance verdict of the moment, his head as if it was exploded, originally thought to be safe and sound, but for no reason to get into trouble; originally thought it would be lenient punishment, but the result is difficult to accept the disaster of imprisonment.

Second, a shocking reversal: the second trial remanded for retrial

In the face of five and a half years of imprisonment verdict, Zhang Moumou heart is really reluctant, he can not accept such a result, and even more unable to face the expectations of his wife and children and elderly parents. He asked his wife to find the best lawyer to continue the appeal. Wife around, consulting a number of lawyers and friends, the answer is almost all “ironclad” like a mountain, appeal is hopeless, simply serve the sentence under the prison. In her almost in despair, ready to give up, JIA LAWYER law firm of XuFaDong lawyers, BiHuaBao lawyers into her vision.

At this time, the two lawyers have not yet seen the file materials, but with years of experience and professional sensitivity, they believe that if the person himself insisted on appealing, which must have grievances, we must respect his own views. Appeal is not only the right of the party, but also his last chance, only appeal may turn the tide. If this time to give up, once the case has a problem, the future of the opportunity to retrial will also be in vain, regret will be accompanied by the rest of his life. In the two lawyers patiently persuade, ZhangMouMou and spouse decided to entrust them to intervene in this case.

Mr. Xu and Mr. Bi accepted the commission, and quickly began to take action. According to the family's statement and the content of the first-instance judgment, they carefully look for preliminary arguments, draft the appeal, and meet with the person concerned to verify the modification, before the expiration of the appeal period in a timely manner to submit the appeal. In the process of carefully reading the file, they are like a sleuth with the eyes of God found the public security organs, procuratorial organs and the court of first instance, as well as a number of defense attorneys have not been aware of the major problems - all the evidence of the case in the party's use of the trademark is not a registered trademark! The informant A company to company B authorized the use of trademarks, is the informant A company will modify the registered trademark trademark, and add the registered trademark logo ®, misleading all the judicial organs and defense lawyers previously involved in the case, so that they mistakenly believe that it is a registered trademark, who did not think whether it is a registered trademark, and did not review the certificate of the rights of registered trademarks. The so-called appraisal report was also based on the modified trademark of the reporting party, Company A, compared with the modified trademark, not at all compared with its registered trademark. It should be known that the criminal law provides for the protection of counterfeiting of registered trademarks is the object of protection of registered trademarks, trademarks are not registered is not protected by criminal law. This case does not constitute a crime at all! At this point, the case relies on the so-called “ironclad evidence” of conviction in the Xu lawyer, Bi lawyer's revelation, instantly shattered!

The two lawyers immediately to the client, family, prosecutors, judges to inform and communicate. However, whether the parties, families, or prosecutors, judges, can not believe this fact. The parties and their families even doubt that the lawyer is not a mistake, is not the retrieval is not in place, the work is not meticulous enough, the prosecutor, the judge, the original lawyer will not even this is also wrong, right? And the prosecutor, the judge is also difficult to accept this subversive discovery. In order to prove their point of view, the two lawyers will be the informant A company's name of all the trademarks for a comprehensive search, all the relevant evidence in the case of one by one excerpts, and will be repeatedly compared to the prosecutor, the judge has conducted a number of in-depth communication, and strongly apply for the second instance of the public trial, to rectify this major error.

Finally, the second instance judge listened to the two lawyers, decided to hear the case. The prosecutor also accepted the views of the two lawyers and agreed to remand the case for retrial. The court of second instance ruled in accordance with the law, reversed the original judgment and remanded the case for retrial. At this moment, Zhang Moumou and his family seemed to see the dawn of hope, a ray of light in the darkness began to shine into their hearts.

Third, another thunderbolt: retrial and three additional offenses

Just when Zhang's family was immersed in the joy of the case being sent back for retrial, fate gave them a heavy blow again. On this side, the case of Zhang Moumou's counterfeiting of registered trademarks was just sent back for retrial by the court of second instance, and on the other side, another thunderbolt came out of the sunny sky! The Procuratorate notified that Zhang Moumou had a new case transferred by the public security authorities for review and prosecution, and the suspected charges were as many as three, which were the crime of selling counterfeit registered trademarks, the crime of producing and selling fake and shoddy products, and the crime of contract fraud, in which the contract fraud case involved more than 20 million yuan, and if it constituted a crime, Zhang Moumou would be sentenced to life imprisonment.

More distressing is that the bad news continues to come, Zhang Moumou's brother was arrested, also suspected of the same four crimes, namely, the crime of counterfeiting registered trademarks, the crime of selling counterfeit registered trademarks, the crime of producing and selling counterfeit and shoddy products, the crime of contract fraud, the two are classified as co-defendants.

Life imprisonment means a long and endless prison career, means isolation from the world, means complete despair for the future. Zhang Moumou's family in despair nearly collapsed, the originally fragile heart again suffered a heavy blow, as if by the relentless waves again and again beat on the reef of despair.

Fourth, the peak turnaround: the new charges are not prosecuted

The three new additional charges are like a big mountain, which presses Zhang Moumou's family breathless. The crime of selling counterfeit registered trademarks and the crime of counterfeiting registered trademarks belong to the same case, the public security organs are difficult to identify, transferred to the Procuratorate for review and decision. The case of production and sale of counterfeit and shoddy products and the contract fraud case are cases associated with the counterfeiting of registered trademarks. Company B, owned by Zhang's younger brother, entered into a partnership with Company A to sell gloves labeled as Company A to Company C. The company's business was to sell gloves labeled as Company A to Company C. However, when the epidemic worsened in 2021, Zhang's brother's company collected the payment and purchased the gloves externally, but the supplier failed to supply the gloves in time, and it was difficult to return the funds. company C received neither the supply nor the refund from company B. Company C reported that Zhang's brother had committed the crimes of contract fraud, production and sale of fake and shoddy products, and sale of counterfeit and registered trademarks, in an attempt to recover the losses through criminal means.

In the face of the family's despair and the great pressure of the case authorities to add three additional charges, Mr. Xu and Mr. Bi did not flinch, calm and collected themselves. With solid legal knowledge, rich experience in defense, rigorous logical reasoning and firm beliefs, they continued to defend their clients. The two lawyers pointed out from a professional point of view that the crime of selling counterfeit registered trademarks and the crime of counterfeiting registered trademarks is actually a case, and this case is not only about sales but also about production, so the crime of selling counterfeit registered trademarks is absorbed by the crime of counterfeiting registered trademarks, and there is no space and reasonableness for independent existence. The crime of production and sale of counterfeit and shoddy products must be premised on the identification of the products, but the products involved in this case have already passed the shelf life, and have long been sold overseas to be used, and cannot be identified at all, and the suspected crime is not established at all. On the contract fraud, although the evidence in the case of part of the false material, but the essence of the contract fraud is to illegal possession for the purpose of the objective behavior of illegal possession. The two lawyers take the data to speak, the case file materials in the complexity of the huge bank water, upstream and downstream contractual relations, the flow of funds for detailed combing, the party's income and expenditure on the formation of a comparative data table, clearly confirmed that the party to collect the C company's money more than 7,000,000 yuan, but all used to purchase gloves, without any private possession, illegal possession of the behavior, and the expenditure of more than 8,000,000 yuan, far greater than the collection of C company's money, but all used to purchase gloves, there is no any private possession, illegal possession behavior, and expenditure to 8,000 yuan. More than 80 million yuan, far greater than the amount of money received from Company C, there is no illegal possession of the situation and purpose, does not constitute a crime.

The two lawyers held the data and detailed defense opinions, and undertook in-depth communication with the prosecutor and members of the prosecution committee. They took great pains to explain, patiently expound the point of view, and finally the relevant data form was recognized by the procuratorate. The Procuratorate is also very serious in handling the case, on this ground, twice returned to the supplementary investigation, and extended the period of review and prosecution once, in order to investigate the facts of the case clearly, to eliminate wrongdoing, and ultimately on the three new additional charges are not prosecuted. This decision is like a ray of light in the darkness, and let Zhang Moumou family from despair to see hope.

V. Eighteen bends in the mountain road: retrial and sentenced to another four years

After the three new additional charges were not prosecuted, the retrial of the original case of the crime of counterfeiting a registered trademark continued. The Procuratorate changed the indictment, and although it recognized the two lawyers' previous argument that the trademark actually used in the case was not registered, it still insisted that the trademark not actually registered constituted the same trademark as the registered trademark, and the crime was still established. The parties and their families again into the helpless and helpless, as if just saw the dawn and instantly obscured by dark clouds.

The two lawyers firmly believe in their own judgment, that the trademark in question is not registered, and is the unauthorized change of the trademark of the informant, Company A, and is not protected by law. They comprehensively put forward the facts and reasons that this case does not constitute a crime from multiple angles, such as the Trademark Law, the Regulations for the Implementation of the Trademark Law, the Trademark Examination and Trial Guidelines, the fact that the two parties have the basis of civil cooperation, and the provisions of the Supreme People's Court's Judicial Interpretation. At the same time, they also applied to the China Trademark Association under the China Enterprise Trademark Appraisal Center for appraisal, the formation of expert opinion that the two do not constitute the same trademark. In the process of the first trial, the local market supervision department also applied for the provincial trademark examination and coordination center to issue a consulting opinion, the same does not constitute the same trademark. The two lawyers for the client to apply for bail, apply for the court suggested that the prosecutor's office to withdraw the case, the retrial can correct the error with great expectations.

However, fate played a cruel joke on them again. The retrial continued to find the client guilty, although the sentence is one and a half years less than the original, sentenced to four years in prison, but for the full expectation of acquittal of Zhang Moumou, this is still a heavy blow. He held great expectations but got endless despair, as if once again pushed into the dark abyss.

Sixth, goodbye dawn: retrial second trial and then remanded

Experienced the front of the first trial, second trial, retrial of new charges, retrial and sentenced to four years, the parties and their families are really tortured organs, like falling into the eighteen layers of hell. The family has been desperate to the extreme, thought maybe can only accept the reality, at least the sentence is less than a year and a half, and then stay more than a year will be able to come out. But Zhang Moumou himself resolutely refused to accept, he firmly believe that he is not guilty, asked to continue to appeal. The two lawyers according to the evidence in the case and defense experience analysis, also think that this case is a case of innocence, where the fight is not afraid. They encouraged Zhang Moumou firmly believe in justice, insist on continuing to appeal.

After another appeal, the two lawyers did not slacken off. They in the original defense on the basis of the opinion, the actual use of trademarks, registered trademarks in this case again for comparison and analysis, and attach the relevant evidence of the case materials, and the contractor judge for serious and careful repeated communication, achieved good results, and strive to the second trial session. Before the trial, the two lawyers again apply in writing to the trademarks constitute the same trademark identification, but the presiding judge replied by the panel deliberations that the naked eye can identify the difference, no need to identify. On this basis, the two lawyers and the original two appraisal combined with new evidence again submitted to the second instance panel, and combined with China's authoritative textbooks in the field of trademark law, the classic cases to the panel elaborated on the fact that this case does not constitute a crime reasons and legal opinions. The presiding judge was also very serious, and asked them many times about the details of the case. The two lawyers in the trial on the basis of defense opinions and supplemented three written opinions and related evidence materials and more than a dozen similar cases.

They are looking forward to the second trial can make a verdict of not guilty. However, finally waited for is again remanded for retrial. Retrial of the second trial and remand, the party Zhang Moumou both confused and helpless, both happy and terrified. Pleased that the original sentence was not upheld, terrified, is not the program in the idle, is not remanded and additional charges? They were once again caught in the endless anxiety. However, the two lawyers always firmly believe that this case is the case of innocence, they with firm belief, encourage the client and family members must adhere to the end, believe in justice.

VII. The light at the end of the tunnel: the case was eventually withdrawn and not prosecuted

After the case was remanded for a second time for retrial, the two lawyers' confidence in the case being corrected according to the law after the remand was further strengthened. They submitted the application for bail to the retrial court and the legal opinion suggesting the prosecutor's office to withdraw the case, and communicated with the vice president in charge of criminal affairs in depth.

This time, justice finally came. The Procuratorate made a decision to withdraw the case on the grounds of insufficient evidence, changed facts and circumstances, and did not meet the conditions for prosecution, and the court ruled that the case should be withdrawn. The moment they received the news, the family could not believe it, so excited that even the water cup fell to the ground. And the person himself can not believe, he was ready to go to prison for execution, finally waited for the light of innocence. After the court ruled to allow the withdrawal of the prosecution, the Procuratorate finally made the case of four crimes (counterfeiting registered trademarks, the sale of counterfeit registered trademarks, the production and sale of shoddy products, the crime of contract fraud) are not prosecuted decision, so the case is closed, Zhang Moumou brothers were acquitted.

From the first trial was sentenced to five and a half years to the remand, to the retrial of the additional three new charges, and then to the retrial of the first trial, the retrial of the second trial, and then remanded for retrial (withdrawn), not prosecuted, the parties experienced seven procedures, which lasted nearly three years, was detained for 1,025 days. The case is constantly reversed and then reversed, the person Zhangmoumou and his family's mood is like riding a roller coaster again and again. This way, it is too difficult, too hard. This is not only a criminal prosecution and defense of the contest, but also a party to the judicial fairness and justice to maintain and uphold. In this process, the parties deeply appreciate the lawyer's professionalism, dedication, due diligence is so important. At the same time, it is equally vital to have responsible judges and prosecutors. Although the Zhang brothers suffered nearly three years of imprisonment, but to be able to have such an end, they are still grateful to the relevant judicial officers can be objective and impartial case, and expressed deep respect for them. We all hope that every member of the judiciary will be able to handle each case objectively and impartially in a highly responsible spirit, to make each case a real iron case, so that justice will not be late.