Tianjin Xinhaifu Food Trade Co., Ltd. Purchased food without inspecting the qualified certification documents and selling the goods that infringed on the exclusive right of registered trademarks. Penalty decision letter

　　Tianjin Municipal Market Supervision and Administration Commission　　Tianjin Municipal Market Supervision and Administration Commission


　　Administrative penalty decision　　Administrative penalty decision


　　Tianjin Municipal Supervisory Punishment [2021] No.
41　　Tianjin Municipal Supervisory Punishment [2021] No.
41

　　Party: Tianjin Xinhai Fu foodmate.
net/tag_3748.
html" class="zdbq" title="Food related food information" target="_blank">Food Co.
, Ltd.
foodmate.
net/tag_3748.
html" class="zdbq" title="Food related food information" target="_blank">Food

　　Subject qualification certificate name: business license

　　Unified Social Credit Code: 91120112MA06T6MH6N

　　Address: No.
2, Chongqing Street, Jinnan Economic Development Zone (West District), Tianjin

　　January 14, 2021, law enforcement officers on the parties to foodmate.
net/tag_4658.
html" class="zdbq" title="Check relevant food information" target="_blank">check in the party premises and warehouse for sale found identification Nanjing foodmate.
net/tag_78.
html" class="zdbq" title="Pepsi related food information" target="_blank">Pepsi -Cola foodmate.
net/tag_2227.
html" class="zdbq" title="Beverage related food information" target="_blank">beverages , Ltd.
production specifications for the 20L * 1 bag / box of Pepsi foodmate.
net/tag_3560.
html" class="zdbq" title="Concentrated food information" target="_blank">concentrated foodmate.
net/tag_1817.
html" class="zdbq" title="Syrup-related food information" target="_blank">syrup 277 boxes ( foodmate.
net/tag_1614.
html" class="zdbq" title="Food information related to production date" target="_blank">production date syrup 20,201,204 boxes of 77, the production date syrup 20,210,106 of 200 cases), the foodmate.
net/tag_4202.
html" class="zdbq" title="Trademark-related food information" target="_blank">trademark right holders foodmate.
net/tag_2463.
html" class="zdbq" title="U.
S.
related food information" target="_blank">the United States PepsiCo PepsiCo, Inc authorized by PepsiCo ( foodmate.
net/tag_5027.
html" class="zdbq" title="China-related food information" target="_blank">China ) Co.
, Ltd.
of Tianjin designated and authorized in conjunction with Pepsi-Cola beverage Co.
, Ltd.
Nanjing Pepsi-Cola beverages Appraisal by a limited company, not produced by Nanjing PepsiCo, is a product that infringes the exclusive right to use a registered trademark.
On January 14, 2021, the Commission made a report in accordance with Article 62, Paragraph 1, Item (4) of the "Trademark Law of the People's Republic of China" Provisions for the above-mentioned syrup to be seized.
The case was filed for investigation on January 20, 2021.
foodmate.
net/tag_4658.
html" class="zdbq" title="Check relevant food information" target="_blank">Check foodmate.
net/tag_78.
html" class="zdbq" title="Pepsi related food information" target="_blank">Pepsi foodmate.
net/tag_2227.
html" class="zdbq" title="Beverage related food information" target="_blank">Beverage foodmate.
net/tag_3560.
html" class="zdbq" title="Concentrated food information" target="_blank">Concentrated foodmate.
net/tag_1817.
html" class="zdbq" title="Syrup-related food information" target="_blank">Syrup foodmate.
net/tag_1614.
html" class="zdbq" title="Food information related to production date" target="_blank">Production Date foodmate.
net/tag_4202.
html" class="zdbq" title="Trademark-related food information" target="_blank">Trademark foodmate.
net/tag_2463.
html" class="zdbq" title="U.
S.
related food information" target="_blank">United States foodmate.
net/tag_5027.
html" class="zdbq" title="China-related food information" target="_blank">China

　　Upon investigation, the parties involved purchased 500 boxes of the above syrup twice at a price of RMB 205 per box from December 2020 to January 2021.
The parties did not check the supplier’s food business license and food when purchasing the above syrup.
Qualification documents and other materials.
The above-mentioned actions of the parties satisfy the constitutive requirements of the unchecked qualification certificates for the purchase of food and the sale of commodities that infringe on the exclusive right of registered trademarks.
As of January 14, 2021, the parties have sold 223 boxes of the above syrup, but have not sold 277 boxes.
Based on the average price of the same type of products sold by the parties, the average price of the infringing goods is 262.
17 yuan per box.
The value of the goods and the illegal business volume in this case are both 131,085 yuan.
.
In addition, to investigate the quality of infringing goods, the Commission entrusted Tianjin Food Safety Inspection Technology Research Institute to conduct quality inspections on 12 boxes of goods involved in the case, and the inspection results were in compliance with the regulations.


　　The above facts are mainly proved by the following evidence:

　　1.
A copy of the party’s business license, food business permit, and a copy of the legal representative’s ID card;

　　2.
On-site inspection transcripts and on-site photos;

　　3.
The transcript of the inquiry and investigation of the delegate, a copy of the delegate's ID card, and the letter of authorization;

　　4.
Materials such as product identification certificate, copy of business license, copy of trademark registration certificate issued by relevant authorized person of trademark right holder;

　　5.
The parties’ purchase transaction records, sales records, and illegal business turnover calculation table.


　　On March 18, 2021, the Commission served the "Administrative Punishment Hearing Notice" (Jinshi Jianzhi Hearing [2021] No.
11) to the parties in accordance with the law, and informed the parties that they have the right to make a statement and defense, and can request to hold For the right to a hearing, the parties did not submit a statement or defense within the statutory time limit, nor did they request a hearing.


　　The party’s failure to inspect the food qualification documents when purchasing the above-mentioned syrup violates Article 53 Paragraph 1 of the foodmate.
net/show-186186.
html" target="_blank">Food Safety Law of the People’s Republic of China.
The provisions of the inspection certificate or other certificate of conformity (hereinafter referred to as the certificate of conformity)” constitute the provisions of Article 67 (1) of the “Regulations for the Implementation of the Food Safety Law of the People’s Republic of China”.
The serious circumstances stipulated in Article 123 to Article 126 and Article 132 of the Security Law and Article 72 and Article 73 of the Regulations: (1) Illegal Act The value of the product involved is more than 20,000 yuan or the illegal act lasts for more than 3 months.
" foodmate.
net/show-186186.
html" target="_blank">Food Safety Law Food Safety Law

　　The parties actively cooperate with the administrative agency to inspect, truthfully state the illegal facts and proactively provide evidence materials, in line with the "Guiding Opinions of the State Administration for Market Supervision on Regulating the Administrative Penalty and Discretion of Market Supervision and Administration" "3.
Rules for the application of administrative sanctions and discretion (7) Administrative Penalties Discretionary circumstances.
3.
In any of the following circumstances, administrative penalties may be lightened or mitigated: (1) Actively cooperate with the market supervision department to investigate, truthfully state illegal facts and actively provide evidence materials.
The act of inspecting food qualification documents shall be given a mitigated punishment.
 

　　The party’s act of selling goods that infringe on the exclusive right to use a registered trademark constitutes Article 57 (3) of the "Trademark Law of the People's Republic of China".
"Any of the following acts shall be an infringement of the exclusive right to use a registered trademark: Commodities with the exclusive right to use registered trademarks” refers to illegal acts.


　　In response to the party’s purchase of food without checking the food conformity certification documents, in accordance with Article 27, Paragraph 1, Item (4) of the "Administrative Punishment Law of the People’s Republic of China," “If the party has one of the following circumstances, he shall be treated lightly or in accordance with the law.
Mitigation of administrative penalties: (4) Other lighter or mitigated administrative penalties in accordance with the law" and Article 126, Paragraph 1 (3) of the Food Safety Law of the People’s Republic of China "violating the provisions of this law, in the following circumstances In one case, the food safety supervision and administration department of the people’s government at or above the county level shall order corrections and give warnings; those who refuse to make corrections shall be fined not less than 5,000 yuan but not more than 50,000 yuan; if the circumstances are serious, they shall be ordered to suspend production and business until the license is revoked: (3) Producers and operators of foods and food additives fail to inspect licenses and related certification documents when purchasing goods, or fail to establish and comply with the provisions of “purchase inspection records, ex-factory inspection records and sales records systems”, and order the parties to correct the purchase of food products.
Inspect the illegal acts of food conformity certification documents, and impose the following administrative penalties on the parties: warning.


　　In response to the parties’ sales of goods that infringe on the exclusive rights of registered trademarks, in accordance with the second paragraph of Article 60 of the "Trademark Law of the People’s Republic of China", when the administrative department for industry and commerce determines that the infringement is established, it shall be ordered to stop the infringement immediately, confiscated and destroyed Infringing goods and tools that are mainly used to manufacture infringing goods and forging registered trademark signs, with an illegal business value of more than 50,000 yuan, may be fined less than five times the illegal business value, and there is no illegal business value or the illegal business value is less than 50,000 yuan , May impose a fine of less than 250,000 yuan.
Those who commit more than two trademark infringements within five years or have other serious circumstances shall be severely punished.
The sale of goods that are not known to infringe the exclusive right of registered trademarks can prove that the goods are If you legally obtain and explain the provider, the administrative department for industry and commerce shall order the suspension of sales", ordering the party to stop the infringement immediately, and impose the following administrative penalties on the party: 1.
265 boxes of Pepsi-Cola concentrated syrup that infringes on the exclusive right of registered trademarks shall be confiscated ; 2.
A fine of 458,000 yuan was imposed.
 

　　The party concerned shall, within 15 days from the date of receiving this administrative penalty decision, pay the fines and confiscated funds to the Tianjin branch of the Industrial and Commercial Bank of China, the Tianjin branch of the Agricultural Bank of China, the Tianjin branch of the Bank of China, the Tianjin branch of the China Construction Bank, the Bank of Tianjin, etc.
Designate non-tax income collection bank to public branch.
If the fine is not paid due, in accordance with the provisions of Article 51 (1) of the "Administrative Punishment Law of the People's Republic of China", this agency will impose a fine of 3% of the fine amount on a daily basis and apply to the people in accordance with the law.
Court enforcement.


　　If you are dissatisfied with this administrative penalty decision, you can apply to the State Administration of Market Supervision and Administration or Tianjin Municipal People’s Government for administrative reconsideration within 60 days from the date of receipt of this administrative penalty decision; you can also apply to the Tianjin Heping District People’s Government within six months according to law.
The court filed an administrative lawsuit.
During the period when an administrative reconsideration is applied for or an administrative lawsuit is filed, the execution of the administrative penalty shall not be suspended.


　　(seal)

　　March 24, 2021

　　(The market supervision and management department will publicize the administrative penalty decision information to the public in accordance with the law)

　　This book is in duplicate, with one serving and one filing.