Interpretation by the Supreme People’s Court Concerning the Laws Applicable to the Temporary Restraint Order on the Infringement of Exclusive Right of Registered Trademarks and Evidence Preservation
(Adopted at the 1203rd Meeting of the Trial Committee of the Supreme People’s court on December 25, 2001)
(2002) Fashi No.2
Bulletin of the Supreme People’s Court of the People’s Republic of China
Interpretation by the Supreme People’s court Concerning the Laws Applicable to the Temporary Restraint Order on the Infringement of Exclusive Right of Registered Trademarks and Evidence Preservation, adopted at the 1203rd meeting of the Trial Committee of the Supreme People’s court of the People’s Republic of China on December 25, 2001, is now promulgated and put in force as of January 22, 2002.
January 9, 2002
Issues concerning the laws applicable to the temporary restraining order on the infringement of registered trademarks and evidence preservation are interpreted as follows pursuant to the provisions of the General Principles of Civil Law of the PRC, Trademark Law of the PRC (Trademark Law), and Civil Procedure Law of the PRC (Civil Procedure Law) to ensure the protection of the legal rights and interests of the trademark registrants and the interested parties:
Rule 1. In accordance with the provisions of Article 57 and Article 58 of the Trademark Law, trademark registrant or the interested parties may apply with the people’s court for temporarily restraint of the infringement of registered trademarks’exclusive right or for evidence preservation.
The parties entitled to the application include the licensee of the trademark license contract and legal heirs of the property right of registered trademarks. Of the licensees of the license contracts of registered trademarks, licensee of exclusive license contract may file the application with the people’s court on his own part, while the licensee of the sole license contract may file the application on the conditions that the trademark registrant does not file the application.
Rule 2. The application for the temporary restraint of infringement of a registered trademark’exclusive right and evidence preservation shall be filed with the people’s court with jurisdiction over trademark cases where the infringement is executed or where the applicant is domiciled.
Rule 3. In the application with the people’s court for temporary restraint of infringement of a registered trademark’exclusive right, the trademark registrant or the interested parties shall submit a written application form which carries: (a) the interested party and its basic information; (b) specific content and scope of the application; (c) reasons for the application, including detailed description of the irreparable damages on the legitimate rights and interests of the trademark registrant or the interested parties if the related acts are not duly prohibited.
In the application with the people’s court for evidence preservation, the trademark registrant or the interested parties shall submit a written application form which carries: (a) the interested party and its basic information; (b) specific content, scope and location of the evidence preservation application; (c) object that the evidence applied for preservation can prove; (d) reasons for the application, including detailed description that the evidence is possible to be destroyed or difficult to be obtained later, and the interested party and its attorney are incapable of collecting the evidence by themselves for impersonal reasons.
Rule 4. In the application for the temporary restraint of the infringement on exclusive right of registered trademark, the applicant shall submit the following evidences:
(a) The trademark registrant shall submit trademark registration certificate. The interested parties shall submit duplicates of the trademark license contract and its recordal certification with the Trademark Office and trademark registration certificate. Where the licensee of the sole license contract files the application on his own part, he/it shall submit evidences to prove the trademark registrant disclaims the application. The heir of the property right of a registered trademark shall submit evidences to prove that he is inheriting or has already inherited the said right.
(b) The evidences to prove the applied party is executing or is to execute infringement of the exclusive right of a registered trademark, including the prosecuted infringing goods be submitted.
Rule 5. The items in the adjudication made by the people’s court on the temporary restraint of infringement on exclusive right of registered trademark or evidence preservation shall be restricted to the scope of the application made by the trademark registrant or the interested parties.
Rule 6. The applicant shall provide guarantee for the application for the temporary restraint of infringement of exclusive right of a registered trademark.
Where the application for evidence preservation might involve the property losses of the applied party, the people’s court may order the applicant to provide relevant guarantee.
The people’s court shall accept such reasonable and effective guarantees in the form of promise or pledge etc. as provided by the interested party.
Where an applicant fails to provide guarantee for his application, the application shall be refused.
In deciding the guarantee scope, the people’s court shall take into consideration the sales income of the goods on which temporary restraining order is imposed, the reasonable storage and safekeeping expenses, possible losses incurred from the applied party's cessation of the said act, reasonable expenses including the employee's remuneration, and other factors.
Rule 7. In the enforcement of temporary restraining order, if the applied party might suffer from greater losses due to such measures, the people’s court may order the applicant to supplement relevant guarantees as such. Where the applicant fails to supplement the guarantee, the related restraining measures shall be relieved.
Rule 8. The temporary restraining order imposed on infringement of exclusive right of a registered trademark shall not be relieved because the applied party offers to provide guarantee, except as otherwise agreed by the applicant.
Rule 9. The people’s court shall make adjudication in writing within 48 hours from acceptance of the application filed by a trademark registrant or the interested parties for the temporary restraining order on the infringement of a registered trademark’ exclusive right if it decides through examination the application falls under Rule 4 of this Regulation. Where the temporary restraining order is imposed on the applied party for his infringement of the exclusive right of registered trademark, it shall be executed immediately.
The people’s court shall serve its adjudication on the enforcement of temporary restraining order on the applied party in due course, not exceeding 5 days of the adjudication.
Rule 10. If any interested party is dissatisfied with the adjudication on temporary restraint of infringement of a registered trademark’ exclusive right, it may have one chance to apply for review within 10 days from receipt of the adjudication. The enforcement of the adjudication shall not be suspended in the course of review.
Rule 11. The people’s court shall examine the review application by the interested parties from the following aspects:
(a) if the applied party's act that is executing or is to be executed constitutes infringement of exclusive right of a registered trademark;
(b) if the applicant's legitimate rights and interests shall be irreparably damaged without enforcement of relevant measures;
(c) the guarantee status of the applicant;
(d) if the public interests shall be damaged due to the enforcement of temporary restraining order on the applied party.
Rule 12. Where a trademark registrant or the interested party fails to institute legal proceedings within 15 days from the enforcement of the measures in relation to temporary restraining order or evidence preservation by the people’s court, the people’s court shall relieve the measures taken according to the adjudication.
Rule 13. Where the applied party suffers losses due to the fact that the applicant fails to institute legal proceedings or makes a false application, the applied party may sue to claim damages from the applicant with the people’s court with jurisdiction, or may claim damages in the litigation for the infringement of exclusive right of the registered trademark proposed by the trademark registrant or the interested parties, and the people’s court may handle them in the same case.
Rule 14. The validity of the adjudication on the temporary restraint of infringement of a registered trademark’exclusive right shall generally be sustained until the legal writ of final instance is effected.
The people’s court is entitled to decide a specific term of the temporary restraint order. At expiration of the term, the people’s court may adjudicate to keep on enforcing the temporary restraining order at request of the interested parties and with guarantee supplemented.
Rule 15. Where the applied party violates the adjudication made by the people’s court on the temporary restraint of the infringement of a registered trademark’s exclusive right or evidence preservation, it shall be handle in accordance with the provisions of Article 102 of the Civil Procedure Law.
Rule 16. Where a trademark registrant or the interested parties request for temporary restraint of infringement of a registered trademark’s exclusive right when he/it sues to the people’s court for trademark infringement or when the case is under trial, the people’s court may make adjudication on the request first.
The issues such as application, delivery of evidence, determination of guarantee, enforcement of adjudication, and review shall be handled in reference to relevant provisions in this judicial interpretation.
Rule 17. Any applicant of the cases in relation to temporary restraint of the infringement of the exclusive right of registered trademarks and evidence preservation shall be responsible for the payment of fees according to the Charges for Litigation stipulated by the people’s court and its supplementary provisions.
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