CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
or copies of a work have been sold or lawfully transferred, the new owner of the original or cop - ies can resell or give away the same original or copies without the need for permission from the copyright holder regarding the distribution right. Regarding non-fungible tokens (NFTs), in a recent judgment the court denied that the trad - ing of NFT digital works was subject to the con - trol of the distribution right and did not apply the “exhaustion of distribution rights” to NFTs. This decision was based on the statutory principles of the Chinese Copyright Law that the distribu - tion right in China is limited to the transfer of tangible carriers that are attached to the work. Trade mark or copyright holders have access to injunctive relief measures to protect their rights. A judge has discretion in ordering remedies based on the specific circumstances of the case. Application for a preliminary injunction can be filed with the competent court before institut - ing legal proceedings or in the middle of legal proceedings, requesting measures prohibiting infringement or preserving the assets in accord - ance with the relevant laws. The application for prohibiting infringement could be filed with the court on condition that the plaintiff has evidence proving that another party is engaged in (or will soon engage in) an act of infringement and that (unless they are stopped in a timely manner) irreparable damage will be caused to the plaintiff’s legitimate rights and interests. 10. Remedies 10.1 Injunctive Remedies Application for an Injunction
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 infringement, 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 institution of legal proceedings, the applicant must initiate an action or apply for arbitration in accordance with the law within 30 days after the people’s court has executed the preliminary injunction/preser - vation 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 that the plaintiff is not qualified to apply for an injunction, 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 infringement, enhanced damages and statutory damages. Judges have discretion in ordering remedies and will take into consideration factors such as the
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