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Archived updates for Thursday, October 14, 2004

Injunctive Relief Aganst Chinese Infringers

According to an explanation by Judge Lu Guoqiang of the Shanghai No 2 Intermediate People's Court, there is still some confusion in Chinese judicial practice between various types of injunctive relief against trademark infringers.

In broad terms, "injunctions" prevent or to stop alleged infringements of rights, while "preliminary attachment" preserves evidence of infringement. Sometimes a party has been petitioned for preliminary attachment of evidence, but the court made rulings for both injunctions and evidence attachment, thus going beyond the scope of the petitioner's request. In other cases, one ruling was made for both coercive measures.

There are major differences between injunctions and attachment measures. Firstly, the former is a measure adopted when infringements of intellectual property rights are being committed or threatened, while the latter is adopted in order to secure satisfaction of the judgment. Secondly, the former is directed against infringing acts and infringing products, while the latter is the seizure of disputed property. Thirdly, the former cannot be lifted even if the respondent offers a counter bond, while the latter should be vacated when the respondent posts a bond. Finally, the former cannot be adopted without a petition by the party concerned, while the latter can be adopted in the absence of a petition if the court deems it necessary.

"Preliminary execution" is yet another term that refers to a ruling made by the court with respect to the petition of one party, after the filing of a civil case but before the final conclusion of such a case, for requesting the other party to pay a certain sum of money to the petitioner or to perform or stop performing certain acts. There are also major differences between injunctions and preliminary execution. For instance, the former is adopted in order to stop infringement of intellectual property rights, while the objective of the latter is to press for payment, in emergency cases, of alimony, cost of upbringing, educational expenses, pension for the disabled or for the family of the deceased, or remuneration for work done. Another example is that the former is adopted when infringing acts are being threatened, while with the latter the focus of consideration is on the facts that there is a clearly defined relationship of rights and obligations between the parties, that the petitioner's life or production and business operation will be seriously affected without adoption of such measures, and that the respondent has the ability to perform the obligations.
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