Key Takeaways! The Latest Judicial Interpretation on Intellectual Property Crimes is Here — These Red Lines for the Gaming Industry Cannot Be Crossed!

Big news in intellectual property protection!

A successful game, whether it’s unique art design, brand trademarks, or core gameplay mechanics, has always been the crystallization of the team’s countless efforts. However, infringement activities such as trademark counterfeiting, game piracy, material infringement, and trade secret leakage have always been the “dark clouds” hovering over popular games, sometimes even targeting indie games. Fortunately, on the 24th, the Supreme People’s Court and the Supreme People’s Procuratorate jointly released the “Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Infringing Intellectual Property Rights” (Fa Shi [2025] No. 5, hereinafter “the Interpretation”), which will take effect directly on April 26, 2025 (tomorrow). This new regulation not only consolidates multiple past judicial interpretations but also details the standards for determining infringement and sentencing guidelines for trademarks, copyrights, patents, trade secrets, and more. Below, we sort out the core points of this new regulation relevant to the gaming industry:

This article represents only the author’s personal views and does not constitute legal advice or legal opinion.

I. Severe Punishment for Trademark Counterfeiting, Leaving No Room for Knockoff Games

Game names and logos (ICONs) are the core identifiers of a game brand and the bridge for players to identify with and form emotional connections to a game. A classic game trademark often grows up with players, becoming a “white moonlight” in their memories.

However, “knockoff games” often exploit players’ familiarity by directly stealing or highly imitating the trademarks of well-known games, attempting to confuse and ride on the coattails of legitimate games for profit.

This “Interpretation” provides a more detailed definition of the crime of counterfeiting registered trademarks (Article 213 of the Criminal Law).

It refines the认定 of “identical goods or services” in the criminal law sense. It will no longer merely look at whether the specific names of goods or services are identical. As long as the two are identical or basically identical in terms of “function,用途, main raw materials, consumers, sales channels, etc.” or “in the purpose, content, method, object, place, etc. of the service,” and the relevant public considers them the same type of goods or service, they can be deemed “identical goods or services.”

Note: Whether under the now-repealed “Interim Measures for the Administration of Online Games” or the possibly “stillborn” “Measures for the Administration of Online Games (Draft for Comment),” the definition of a game is “a game product and service composed of software programs and information data, provided to the public via information networks for download or online interactive use.” I believe that for single-player games, the definition leans more toward a product (goods); for online games, cloud games, etc. (“GaaS” — Games as a Service), the definition may lean more toward a “service.”

For example, if a knockoff mobile game imitates the trademark of a legitimate console game, traditional defenses might argue that “mobile game” and “console” players are different audiences, and the two are not the same type of goods. However, after the “Interpretation” is released, they are considered the same type of thing.

In determining “identical trademarks,” it is no longer limited to pixel-perfect copying. Minor alterations to a well-known game trademark (whether name or image trademark), such as adjusting fonts, changing color combinations (without affecting core识别 features), or adding non-distinctive words like “Nostalgic Edition,” “Upgraded Edition,” “Standalone Edition,” “BT Edition” next to the trademark, as long as the overall visual effect is “basically indistinguishable” from the legitimate trademark and sufficient to mislead players, may be legally recognized as using an “identical trademark.”

Additionally, the “Interpretation” more clearly quantifies the threshold for criminal prosecution, providing clearer “targets” for rights enforcement. Taking the example of counterfeiting a goods trademark, illegal income reaching 30,000 yuan or illegal business volume (i.e., total revenue) reaching 50,000 yuan triggers the “serious circumstances” criminal red line. If two or more different game trademarks are counterfeited simultaneously (e.g., using the name of Game A and also imitating the ICON trademark of Game B), this threshold is further lowered to illegal income of 20,000 yuan or illegal business volume of 30,000 yuan.

If the counterfeiting is deemed to be counterfeiting a service, the “serious circumstances” illegal income threshold for the former scenario is 50,000 yuan or more, and for the latter scenario, the illegal income threshold is 30,000 yuan or more.

The sales link is also strictly regulated. Knowingly selling counterfeit game products (e.g., knowing that the game name submitted by the developer is infringing but still marketing it, or knowing that the software copyright certificate provided by the other party is photoshopped) with illegal income (game revenue share) of 30,000 yuan or more also constitutes a crime.

If the infringement amount reaches ten times the above standards, it constitutes “especially serious circumstances,” which will result in more severe penalties.

“Illegal income” as used in this Interpretation refers to all illegal revenue obtained and receivable by the perpetrator from selling infringing intellectual property products, minus the purchase cost of raw materials and the products sold; for providing services, minus the purchase cost of products used in that service. Income obtained through service fees, membership fees, or advertising fees shall be recognized as “illegal income.”

Note: Generally speaking, “serious circumstances” = less than 3 years; “especially serious circumstances” = 3 to 7 years.

A turnover of 500,000 yuan in the gaming industry may not even make a splash, but it corresponds to a maximum of seven years in prison.

When buying user acquisition, you must be extremely careful.

II. Combating Copyright Infringement, Protecting Original Content

Game software code, art resources, music and sound effects, storyline text, etc., form the core content of a game. Their copyright is the cornerstone of a game company’s value, and copyright infringement is also the most common form of infringement in the gaming industry.

Unauthorized reproduction and distribution of game software (whether physical discs or digital versions), cracking games and providing downloads, using leaked or reverse-engineered code to set up and operate private servers, and even大量 “borrowing” copyrighted text, art materials, or code from others in one’s own “original” game are all clearly acts of copyright infringement.

This new regulation reiterates that illegal income reaching 30,000 yuan or illegal business volume reaching 50,000 yuan meets the criminal case filing standard for “relatively large illegal income” or “other serious circumstances.”

Don’t worry if the amount hasn’t been reached yet.

The “Interpretation” keeps pace with network development by providing specific quantitative standards for online infringement. For example, disseminating infringing games, pirated games, or operating private servers through information networks, if the number of illegal copies (the infringing game本体, cracked game本体, private server client, etc.) reaches 500 (copies) or more, or the total illegal downloads reach 10,000 or more, or the cumulative clicks on related infringing pages (e.g., game landing pages, private server promotional pages) reach 100,000 or more, or the number of registered members in a membership-based service reaches 1,000 or more, even if the illegal income or business volume has not yet reached the aforementioned standards in the short term, it still constitutes “other serious circumstances” and criminal liability can be pursued.

At the same time, knowingly providing technical tools or services such as cracking encryption or bypassing verification to infringers, when certain standards are met (e.g., illegal income of 50,000 yuan or more), will be treated as an accomplice.

500 copies, 10,000 downloads — can be reached within a day of server launch, punishable by up to 3 years.

III. Protecting Trade Secrets, Safeguarding Core Technology and Creativity

In the fiercely competitive market, unique game engines, core algorithms, key数值 systems, user behavior data analysis models, as well as undisclosed game content and major operational plans, are often the most core competitiveness of a game company — the heart of R&D and the crystallization of wisdom. Once leaked, competitors can quickly imitate, and the competitive advantage may instantly collapse.

However, “internal moles” are hard to eliminate.

Whether it’s stealing source code through hacker attacks (electronic intrusion) or employees violating confidentiality agreements by leaking core technical documents and key operational data to competitors, it may constitute the crime of infringing trade secrets.

The new regulation clarifies that the standard for “serious circumstances” is direct loss amount to the rights holder (the game company) or illegal income amount of the infringer reaching 300,000 yuan or more. If the infringement directly leads to the failure of a game project, the company facing major operational difficulties or even bankruptcy, or if the relevant amount reaches ten times the above standard, it is recognized as “especially serious circumstances.”

Whether “closed beta,” “internal test,” or “experience server” players leaking game content (e.g., the appearance, skills, stats of characters not yet released) without authorization constitutes trade secret infringement — I believe it “does”, but only for civil liability. It is genuinely difficult for a company to calculate losses of over 300,000 yuan due to “internal mole” behavior, and the chances of case filing are also low.

The “Interpretation” also thoughtfully refines the calculation method for the loss amount, making enforcement more operable. It comprehensively considers various factors: R&D costs, profit loss due to infringement (estimable through reduced sales or infringing product sales multiplied by reasonable profit), reasonable license fees for the trade secret, the market value of the trade secret (if it has been publicly disclosed), and reasonable remediation costs incurred to repair system security and mitigate losses.

When game companies enforce their rights, their legal departments now have clearer “official guidance” for calculating and proving their own losses.

IV. General Rules: From Severity to Leniency, Fines and Confiscation

The “Interpretation” also covers a series of general rules, such as:

Regarding joint crimes, providing assistance such as funding, raw materials, technology, venues, or network services may all be considered as accomplices.

Circumstances for heavier punishment include making infringement a profession, counterfeiting trademarks of epidemic prevention materials during special periods like the pandemic, refusing to surrender illegal income, etc.

Circumstances for lenient punishment include admitting guilt and accepting punishment, obtaining forgiveness from the rights holder, trade secrets not yet disclosed, etc.

Fines will comprehensively consider illegal income, illegal business volume, losses, etc., with a standard of 1-10 times the illegal income, or 50%-100% of the illegal business volume. When both illegal income and business volume are unclear, the fine range is 30,000-1,000,000 yuan (for sentences under 3 years) or 150,000-5,000,000 yuan (for sentences over 3 years).

Infringing items and tools (company computers, servers, various peripherals, etc.) are in principle confiscated and destroyed, ensuring the infringement chain is completely severed.

V. How Game Companies Should Respond: Proactive Defense and Active Rights Enforcement

The introduction of the “Interpretation” undoubtedly enhances the deterrent power of the law. However, “to strike hard, you must first be strong yourself.” Game companies’ own proactive defense is equally important.

For example:

Strengthen IP Portfolio Layout and Management

When registering trademarks, not only should core names and logos be registered, but consideration should also be given to covering the categories of goods and services that the game may expand into, building a comprehensive trademark firewall.

When registering trademarks, in addition to common categories like 9/41/42, consider applying for trademark categories such as Class 16 (printed matter and stationery) and Class 28 (toys and sports equipment) based on the nature of the game (e.g., anime-style games, card games).

In addition to registering software copyright for the game本体, core art works may also be considered for art copyright registration.

For core code, art resources, planning documents, etc., establish strict access权限 and confidentiality systems, and sign clear confidentiality and non-compete agreements with key employees.

Active Monitoring and Evidence Collection

Game companies can use technical means or third-party services to continuously monitor the market for counterfeit games, pirated links, and private server information.

Once infringement is discovered, immediately preserve evidence, such as the infringing game’s download data, player充值 records, private server online user numbers, member lists, promotional materials, etc.

Having sufficiently strong evidence may become the key to initiating criminal proceedings.

Make Good Use of Legal Weapons

The “Interpretation” clarifies that in private criminal prosecution cases, if the party has difficulty collecting evidence on its own due to objective reasons, it can apply to the court to collect evidence in accordance with the law.

This greatly lowers the threshold for rights enforcement.

Game companies should work closely with their legal teams or external lawyers to assess whether the infringement meets the criminal case filing standard and, after preparing sufficient evidence, file a report with the public security authorities at the appropriate time or (if not accepted) initiate a private criminal prosecution.

At the same time, administrative complaints, civil lawsuits, and criminal accusations can be pursued in parallel, forming a combination of measures to more effectively curb infringement.

VI. The Usual Elevation

The latest criminal judicial interpretation on intellectual property rights is a clear signal that China is currently and will continue to strengthen IP protection and optimize the innovation environment.

Through clearer definitions, more detailed standards, and more operable calculation methods, it has drawn red lines for the gaming industry that must not be crossed.

At the same time, for game companies that respect originality, this is not only a strong legal confirmation of their original achievements and brand value but also adds a solid legal backing for Chinese game companies on their journey of global competition.

Clearer rule boundaries, clearer prosecution thresholds, and more severe legal sanctions will effectively deter potential infringers, help purify the market environment, and encourage genuine innovation.

There is reason to believe that with the in-depth implementation of this “Interpretation,” IP protection in the gaming industry will become more standardized and efficient, injecting stronger legal impetus into the sustainable prosperity and high-quality development of the industry.