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Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in Reviewing Cases of Behavior Preservation of Intellectual Property Disputes
date: 2018-12-13

To properly examine cases of intellectual property disputes and protect the legitimate rights and interests of the parties involved in a timely and effective manner, according to the "Civil Procedure Law of the People's Republic of China", "Patent Law of People's Republic of China ", " Trademark Law of the People’s Republic of China ", "Copyright Law of the People's Republic of China", and other relevant laws, these regulations are formulated in light of actual conditions of trial and execution.

 

Article 1 The intellectual property disputes in these Regulations refer to intellectual property rights and competition disputes in the “Provisions on the Cause of Action of Civil Cases”.

 

Article 2 Before the judgment, ruling or arbitral award comes into effect, the parties to an intellectual property dispute shall apply for behavior preservation in accordance with the provisions of Articles 100 and 101 of the Civil Procedure Law, and the People's Court shall accept the application.

 

Where the licensee of the intellectual property license contract orders to stop the infringement of intellectual property rights before the lawsuit is filed, the licensee of the exclusive licensing contract may apply to the people's court separately; if the licensee of the sole licensing contract does not apply, the application may be made separately; if the licensee of the ordinary licensing contract is authorized by the right holder to file a lawsuit in his own name, the application may be filed separately.

 

Article 3 The application for pre-litigation behavior preservation shall be submitted to the People's Court of the respondent's domicile with jurisdiction over the corresponding intellectual property dispute or the People's Court having jurisdiction over the case.

 

Where the parties agree to arbitration, they shall apply for behavior preservation of the People's Court prescribed in the preceding paragraph.

 

Article 4 To apply for behavior preservation from the People's Court, an application and corresponding evidence shall be submitted. The application should contain the following items:

(1) The identity, address and contact information of the applicant and the respondent;

 

(2) The contents and time limit for behavior preservation measures;

 

(3) The facts and reasons on which the application is based, including the specific description of the damages of the respondent's actions that would cause the applicant's lawful rights and interests to be irreparably damaged or cause the case to be difficult to enforce;

 

(4) Property information or credit certificates that provide guarantee for the conduct of the behavior, or the reasons for not providing the guarantees;

 

(5) Other matters which need to be mentioned.

 

Article 5 Prior to the People's Court decision to take behavior preservation measures, it shall inquire the applicant and the respondent, except in cases where the situation is urgent or the inquiry may affect the implementation of the behavior preservation.

 

If the people's court decides to take behavior preservation measures or decides to reject the application, it shall serve the ruling to the applicant and the respondent. If the service of the ruling to the respondent may affect the adoption of behavior preservation measures, the People's Court may, in the event of taking the preservation measures, serve the ward in a timely manner, no later than five days.

 

If the party applies for behavior preservation during the arbitration process, it shall submit an application form, a notice of acceptance of the arbitration case, and other relevant materials to the People's Court through the arbitration institution. Where the People's Court decides to take behavior preservation measures or decides to reject the application, it shall serve the ruling to the party and notify the arbitral institution.

 

Article 6 In any of the following circumstances, if behavior preservation is not sufficient to damage the interests of the applicant, it shall be deemed to be “urgent” as stipulated in Articles 100 and 101 of the Civil Procedure Law:

 

(1) The applicant's trade secret is about to be illegally disclosed;

 

(2) The applicant's right to publish, privacy, etc. will be infringed upon;

 

(3) The intellectual property rights of the dispute will soon be illegally disposed of;

 

(4) The applicant's intellectual property rights are being or will be infringed upon at a time-sensitive occasion such as a trade fair;

 

(5) The hot-spot show with strong timeliness is being or will be infringed;

 

(6) Other circumstances requiring immediate behavior preservation measures.

 

Article 7 The People's Courts shall consider the following factors when reviewing applications for behavior preservation:

 

(1) Whether the applicant's request has a factual and a legal basis, including whether the intellectual property rights of the claimed protection are stable;

 

(2) Whether the failure to take behavior preservation measures will cause irreparable damage to the applicant's legitimate rights and interests or cause the case to be difficult to enforce the damage;

 

(3) Whether the damage caused by the failure to take the behavior preservation measures exceeds the damage caused to the respondent by taking the behavior preservation measures;

 

(4) Whether taking behavioral protection measures will harm public interest;

 

(5) Other factors that should be considered.

 

Article 8 If the People's Court examines and judges the validity of the intellectual property rights claimed by the applicant is stable, the following factors shall be considered:

 

(1) the type or attribute of the rights involved;

 

(2) Whether the rights in question have been substantively examined;

 

(3) Whether the rights in question are in the invalidation or cancellation procedure and the possibility of being invalidated or revoked;

 

(4) Whether there is a dispute over ownership of the rights involved;

 

(5) Other factors that may lead to instability of the rights involved.

 

Article 9 Where an applicant applies for behavior preservation on the basis of a utility model or a design patent right, it shall submit a search report, a patent right evaluation report made by the Patent Administration Department under the State Council, or a decision of the Patent Reexamination Board to maintain the patent right. If the applicant refuses to submit this information without justifiable reasons, the People's Court shall reject the application.

 

Article 10 In the case of intellectual property rights and unfair competition disputes, if one of the following circumstances occurs, it shall be deemed to be “unrecoverable damage” as stipulated in Article 101 of the Civil Procedure Law:

 

(1) The behavior of the respondent will infringe upon the applicant's right to goodwill or the right to publish, privacy, etc. and cause irreparable damage;

 

(2) The behavior of the respondent will lead to uncontrollable violations and significantly increase the damage to the applicant;

 

(3) The respondent’s infringement will result in a significant reduction in the relevant market share of the applicant;

 

(4) causing other irreparable damage to the applicant.

 

Article 11 Where an applicant applies for preservation of a behavior, it shall provide a guarantee according to law.

 

The amount of guarantee provided by the applicant shall be equivalent to the loss suffered by the respondent as a result of the execution of the behavior preservation measures, including the reasonable loss of sales proceeds and custody expenses of the products involved in order to stop the infringement.

 

In the process of implementing the behavior preservation measures, if the respondent may suffer losses exceeding the amount of the applicant's guarantee, the People's Court may order the applicant to add corresponding guarantees. If the applicant refuses to do so, he may decide to release or partially cancel the preservation measures.

 

Article 12 The measures of behavior preservation taken by the People's Courts shall generally not be released due to the guarantee provided by the respondent, unless the applicant agrees.

 

Article 13 If the People's Court decides to take measures for the behavior preservation, it shall reasonably determine the time limit for the preservation measures according to the applicant's request or the specific circumstances of the case.

 

The validity of the ruling to stop the infringement of intellectual property rights should generally be maintained until the time the case is taken into effect.

 

The People's Court may decide to continue to take preservation measures according to the applicant's request, additional guarantees, etc. Where the applicant requests to renew the preservation measures, it shall file within seven days before the expiration of the time limit.

 

Article 14 If a party refuses to accept behavior preservation and applies for reconsideration, the People's Court shall review and make a ruling within 10 days after receiving the application for reconsideration.

 

Article 15 The People's Courts shall adopt methods and measures for behavior preservation in accordance with the relevant provisions of the implementation procedures.

 

Article 16 In any of the following circumstances, it shall be deemed that the “application is wrong” as stipulated in Article 105 of the Civil Procedure Law:

 

    (1) The applicant does not file a lawsuit or apply for arbitration within 30 days after taking the behavior preservation measures;

 

    (2) The behavior preservation measures are improper from the beginning because of the invalidation of the intellectual property claimed to be protected;

 

    (3) The application is ordered to stop the infringement of intellectual property rights or unfair competition, but the effective judgment does not constitute infringement or unfair competition;

 

    (4) Other cases where the application is completed in error.

 

Article 17 Where a party applies for dissolution of behavior preservation, the People's Court shall, after receiving the application, comply with the circumstances as stipulated in Article 166 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China and lift the ruling within five days.

 

If the applicant withdraws the application for behavior preservation or applies for behavior preservation, it shall not be exempted from the liability for compensation as stipulated in Article 105 of the Civil Procedure Law.

 

Article 18 The respondent shall file a lawsuit for compensation in accordance with Article 105 of the Civil Procedure Law. If the applicant has not filed a lawsuit after applying for pre-litigation behavior or the parties have agreed to arbitration, the applicant shall have jurisdiction over the People's Court that has taken the preservation measures; The indictment shall be under the jurisdiction of the People's Court that accepts the indictment.

 

Article 19 Where an applicant applies for behavior preservation, property preservation or evidence preservation at the same time, the People's Court shall separately examine whether the different types of preservation applications meet the conditions and make a ruling.

 

In order to prevent the respondent from implementing the transfer of property and destroying the evidence, the purpose of preservation may not be realized, the People's Court may decide the order of execution of different types of preservation measures according to the specific circumstances of the case.

 

Article 20 The applicant's application for behavior preservation shall be subject to the application fee in accordance with the provisions of the “Measures for Payment of Litigation Fees” regarding the application for behavioral preservation measures.

 

Article 21 These Provisions shall come into force on January 1, 2019. Where the relevant judicial interpretation previously issued by the Supreme People's Court is inconsistent with these Provisions, these Provisions shall prevail.


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