CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
7.5 Costs Successful plaintiffs can obtain compensatory and punitive damages and reasonable expenses, including reasonable attorney fees, notarisation fees, transla- tion fees, appraisal fees, etc. The plaintiff shall list the above claims in the indictment, and the judge will hear the case according to the claims. Successful defend - ants generally cannot obtain compensation unless the plaintiff abuses intellectual property rights.
books and materials related to the infringement when the plaintiff has tried their best to furnish evidence and the account books and materials related to the infringement are mainly in the possession of the infringer. If the infringer fails to provide or provides false account books and materials, the people’s court may determine the amount of compensation with ref - erence to the claims of the plaintiff and the evidence provided. If it is difficult to determine the actual losses suffered by the right-holder due to the infringement and the profits obtained by the infringer due to the infringe - ment, the people’s court shall make a judgment to compensate the right-holder less than five million yuan according to the circumstances of the infringe - ment. If an infringer maliciously commits an act of infring - ing trade secrets and the circumstances are serious, the amount of compensation may be determined at an amount between one and five times the amount determined in accordance with the above methods. 7.3 Permanent Injunction Trade secret cases in which plaintiffs win usually result in a cessation of infringement and damages, unless the trade secret has already been disclosed so that any judgment prohibiting the disclosure of the trade secret is meaningless. Generally, unless the case is settled through settlement or mediation, the plain - tiff cannot ask the defendant to recall the products. Since employees have the freedom of employment, it is generally impossible to restrict their subsequent employment; employers can only restrict the subse - quent employment of a departing employee through a non-compete agreement for a period of no more than two years and for a fee. An injunction to cease infringement generally has no time limit until the invali - dation of the trade secret. 7.4 Attorney’s Fees Generally, the plaintiff can claim for the reasonable expenses to stop the infringement, including reason - able attorney fees, notarisation fees, translation fees, appraisal fees, etc. Claims for such expenses require relevant evidence, usually including contracts, pay - ment vouchers and invoices.
8. Appeal 8.1 Appellate Procedure
Either the plaintiff or the defendant, or both, if they are dissatisfied with the first-instance judgment, may appeal to the higher court. As explained in 5.4 Juris- diction of the Courts , first-instance civil cases involv - ing trade secret infringement are generally under the jurisdiction of intermediate people’s courts. Hence, for most cases, the appellate court is the correspond - ing provincial high court overseeing the intermediate court. For judgments, the appeal period is 15 days from the date of receipt of the judgment; for rulings, the appeal period is ten days from the date of receipt of the ruling, and for a party that has no domicile in China, the appeal period is 30 days from the date of receiving the judgment or ruling. The trial period of the second instance is three months, which can be extended. The appeal procedure will not vary between courts. 8.2 Factual or Legal Review The court of second instance focuses more on legal issues, but usually also ascertains factual issues. If the second-instance court finds out that the basic facts determined by the first-instance judgment are unclear, it will usually send it back to the first-instance court for retrial; if other facts are unclear, the second- instance court can also revise the judgment after finding out the facts. Usually, the second instance is not de novo and will be tried according to the appel - lant’s grounds of appeal. For issues that need to be reserved, the appellant should clearly record it in the grounds of appeal. For most trade secret cases, the court of second instance does not merely conduct a written hearing; instead, it usually gives both parties an opportunity to present and debate.
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