In our previous blogs (here and here), we stated that the question whether the infringement of the trademark owner’s rights constitutes an infringement or criminal case will be determined by virtue of the damage amount arisen out of such action, and also that there are different sanctions to each scenario.
In order to determine whether this action is the crime of ‘Violation of the rights of trademark owner and geographical indication” stated in Article 18.16, the damage incurred out of the action of confusing consumers through production, storing, transportation, sales and crossing of the state frontier by using trademark or geographical indication shall be more than 300,000 MNT (115 USD)and above.
If it is proven that the damage amount equals or exceeds the amount stated in the Criminal procedure law of Mongolia, the following measures with regard to criminal case filing may be taken.
- The owner of trademark or geographical indication shall file a complaint and information about the crime to the police inspector. For such purpose, there should be a sufficient proof that the activities of the infringers are indeed a crime with loss/damage with more than 300 000MNT (115USD). The police inspector may take the following inspection measures to determine if the case stated in the compliant and information contains the elements of a crime within 5 days upon the receipt of the complaint and information:
- Examination
- Lab inspection of samples and finger prints
- Take testimony from witness
- Seizure of the crime-related transportation, money and products
- Confiscation
of properties and belongings
- After the receipt of the complaint immediately or after the conduct of the inspection operations stated above the inspector shall make one of the decisions:
- To initiate a criminal case
- To submit a proposal to the prosecutor on the refusal to initiate a criminal case
- To submit a proposal to the prosecutor to the transfer the case according to the jurisdiction of the case and the law does not provide the duration
- In case the inspector decided to initiate the case, he/she shall immediately inform the prosecutor about the decision and register the case at the central registry of the prosecutor and introduce the resolution to the prosecutor within 72 hours after the registry of the case at the central registry of the prosecutor. This shall be deemed as justification for the conduct of the criminal procedure. The general time for the criminal case filing, i.e. operations starting from initiating the case until the prosecution of the accused shall be one month and may be extended for up to three months by the prosecutor.
Also, we have to take into account that in case the prosecutor decides that the initiation of the criminal case by the inspector is not justified, he/she shall invalidate the case filing.