CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
ple’s court may order the applicant to increase the guarantee correspondingly. 7.2 Measures of Damages The amount of compensation for business oper - ators that have suffered damage due to unfair competition shall be determined according to the actual loss suffered due to the infringement. If the actual loss is difficult to calculate, the compensation shall be determined according to the profits obtained by the infringer due to the infringement. The amount of compensation shall also include the reasonable expenses spent by the operator to stop the infringement. In order to obtain the above compensation, the plaintiff shall provide corresponding evidence. In order to determine the amount of compensa - tion, the people’s court may order the infringer to provide the account 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 reference to the claims of the plaintiff and the evidence provided. If it is difficult to determine the actual losses suf - fered by the right-holder due to the infringement and the profits obtained by the infringer due to the infringement, the people’s court shall make a judgment to compensate the right-holder less than five million yuan according to the circum - stances of the infringement. If an infringer maliciously commits an act of infringing 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 dam - ages, 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 plaintiff cannot ask the defendant to recall the products. Since employees have the freedom of employment, it is generally impossible to restrict their subse - quent employment; employers can only restrict the subsequent 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 gener - ally has no time limit until the invalidation of the trade secret. 7.4 Attorneys’ Fees Generally, the plaintiff can claim for the reason - able expenses to stop the infringement, includ - ing reasonable attorney fees, notarisation fees, translation fees, appraisal fees, etc. Claims for such expenses require relevant evidence, usu - ally including contracts, payment vouchers and invoices. 7.5 Costs Successful plaintiffs can obtain compensatory and punitive damages and reasonable expenses, including reasonable attorney fees, notarisation fees, translation fees, appraisal fees, etc. The plaintiff shall list the above claims in the indict - ment, and the judge will hear the case according to the claims. Successful defendants generally cannot obtain compensation unless the plaintiff abuses intellectual property rights.
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