CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
will soon engage in) an act of infringement and that (unless they are stopped in a timely manner) irrepara - ble damage will be caused to the plaintiff’s legitimate rights and interests. The application for preserving the assets could be filed with the court on condition that the plaintiff has evidence proving that another party might conceal its property or the illegal profits obtained from infringe - ment, and that, even if the plaintiff wins the lawsuit, there is no property for enforcement. Timeline The applicant may be ordered by the court to provide a bond. After accepting the application, the people’s court must issue a ruling within 48 hours in urgent situations; if it rules to take a preliminary injunction/ preservation measure, the measure will be executed immediately. For an application filed before the insti - tution of legal proceedings, the applicant must initi - ate an action or apply for arbitration in accordance with the law within 30 days after the people’s court has executed the preliminary injunction/preservation measure, otherwise the people’s court will remove the measures. Grounds for Overturning an Injunction The defendant may apply to the people’s court for reconsideration of a preliminary injunction within five days of receipt of the ruling. The grounds could be: • the plaintiff is not qualified to apply for an injunc - tion; • the preserved property does not belong to the defendant; • the amount of the preserved property exceeds the amount included in the ruling; and • there is no urgency or necessity to impose the injunction. 10.2 Monetary Remedies The available monetary remedies for trade mark or copyright owners include: • actual damages; • the account of profits derived from the infringe - ment; • enhanced damages; and
• statutory damages. Judges have discretion in ordering remedies and will take into consideration factors such as: • the extent of the infringement; • the harm caused to the plaintiff; and • the infringer’s bad faith. The calculation of damages in trade mark or copyright cases may be based on factors such as the actual losses suffered by the rights-holder or the profits the infringer has earned due to the infringement, or the appropriate royalty rate. If the damages cannot be calculated based on these three factors the court may grant compensation, in trade mark infringement cases, not exceeding CNY5 million, according to the circumstances of the act of infringement. For copy - right infringement cases, the court may grant com - pensation ranging from CNY500 to CNY5 million. If the infringement is committed in bad faith and is serious, the plaintiff may request punitive damages, which could be up to five times the amount deter - mined using the aforesaid method. The amount of the damages must also include the reasonable expenses of the rights-holder incurred in stopping the infringe - ment. 10.3 Attorneys’ Fees and Costs The plaintiff could request that the defendant bear the reasonable costs of the litigation. If the plaintiff wins the case, the judge could request that the defend - ant bear a certain amount of the reasonable costs, including the attorneys’ fees and the court fees. The amount to be reimbursed will be determined at the judge’s discretion, based on the evidence submitted by the plaintiff. 10.4 Ex Parte Relief The trade mark or copyright owner could seek relief without notifying the defendant. Notice is not required. If the trade mark or copyright owner sends a warning letter to the infringer and the infringer refuses to stop the infringing act, the warning letter could be used as evidence to prove the infringer’s bad faith in continu - ing the infringement with full awareness.
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