Interpretation by the Supreme People’s Court of the Issues Relating to the Application of Law to Stopping Acts of Infringement of the Exclusive Right to Use a Registered Trademark and Preservation of Evidence prior to Litigation

(Adopted on 25 December 2001 at the 1203rd meeting of the Trial Committee of the Supreme People's Court, Fashi (2002) No. 2, promulgated on 9 January 2002 and enforced on 22 January 2002)

According to the rules of the “General Rule of Civil Law of the People' Republic of China” (hereinafter referred to as the General Rule of Civil Law), the “Trademark Law of the People' Republic of China" (hereinafter referred to as the Trademark Law) and the “Civil Procedure Law of the People' Republic of China” (hereinafter referred to as the Civil Procedure Law), the interpretation of the issue is hereby made as follows on applicable laws concerning stopping an act of infringement on the exclusive right to use a registered trademark and having evidence preserved prior to filing a lawsuit:

Article 1　

According to the provisions of Articles 57 and 58 of the Trademark Law, a trademark registrant or an interested party may, prior to filing a lawsuit, apply to the People's Court for stopping the act of infringement on the exclusive right to use a registered trademark or having evidence preserved.

An interested party that submits an application includes licensees of a trademark licensing contract or a legal successor to the property right of a registered trademark. Of the licensees of a trademark licensing contract, a licensee of a monopolist trademark licensing contract may submit a separate application to the people's court; a licensee of an exclusive trademark licensing contract may submit an application if the trademark registrant does not submit such application.

Article 2

An application for stopping an act of infringement on the exclusive right to use a registered trademark or having evidence preserved shall be submitted to the people's court in the action place of the right infringement or to the people's court in the place of the applicant's residence which has the jurisdiction over trademark dispute cases.

Article 3　

The application submitted to the people's court by a trademark registrant or an interested party prior to filing a lawsuit in order to stop an act of infringement on the exclusive right to use a registered trademark shall be delivered in writing. The applicant shall clearly state the following items in the application:
(1) the party concerned and its basic conditions, (2) the detailed content and scope of the application and (3) reasons for submitting the application, including a detailed explanation to the effect that unless a relevant act of right infringement is stopped promptly, it will cause irreparable damage to the legal rights and interests of the trademark registrant or the interested party.

The application submitted to the people's court by a trademark registrant or an interested party prior to filing a lawsuit in order to have evidence preserved shall be delivered in writing. The applicant shall clearly state the following items in the application: (1) the party concerned and its basic conditions; (2) the concrete content, scope and place of the evidence to be preserved; (3) the object which the evidence to be preserved can prove; and (4) reasons for submitting the application, including a detailed explanation to the effect that such evidence may be lost or it will be difficult to obtain later and the party concerned and its agent ad litem can not collect it on their own due to objective reasons.

Article 4　

An applicant shall submit evidence as follows when submitting an application prior to filing a lawsuit in order to stop an act of infringement on the exclusive right to use a registered trademark:

(1) A trademark registrant shall submit the trademark registration certificate and an interested party shall submit the trademark licensing contract and the photocopies of the documents filed to the Trademark Bureau and of the trademark registration certificate. An applicant who is a licensee of an exclusive trademark licensing contract shall provide evidence to show that the trademark registrant has waived the right to apply. A successor to the registered trademark property right shall provide evidence to show that it has been or is becoming a successor.

(2) An applicant shall provide evidence, including the infringing product, to show that another party is engaged in or will soon engage in acts that infringe the exclusive right to use its registered trademark.

Article 5　

The decision made by the people's court to stop an act of infringement on the exclusive right to use a registered trademark or have evidence preserved prior to the filing of a lawsuit shall be limited to the scope of the application submitted by a trademark registrant or an interested party.

Article 6　

The applicant shall provide a security when submitting an application prior to the filing of a lawsuit to stop an act of infringement on the exclusive right to use a registered trademark.

If an application submitted by an applicant prior to the filing of a lawsuit to have evidence preserved may incur property losses to another party, the people's court shall order the applicant to provide a security accordingly.

If such security provided in the form of a guarantee or pledge is reasonable and effective, the people's court shall approve it.

When determining the scope of a security, the people's court shall consider ordering the stopping of the sales profits of the product involved in a relevant act and the reasonable warehousing and storage expenses, and stop the reasonable losses which may be incurred by a relevant act.

Article 7　

During the trial process of executing the measure to stop a relevant act, if another party may suffer even greater losses as a result of the execution of the said measure, the people's court shall order the applicant to provide an additional security accordingly. If the applicant fails to provide an additional security, the people's court may rescind the protective measure.

Article 8　

A measure that has been taken as a result of a ruling regarding an act of infringement on the exclusive right to use a registered trademark shall not be rescinded because another party has provided a security, unless there is consent from the applicant.

Article 9

After accepting an application submitted by a trademark registrant or an interested party for issuing an order to stop an act of infringement on the exclusive right to use a registered trademark and finding after examination that the application falls under the above-mentioned Article 4, the people's court shall make a ruling in writing within 48 hours. If the court decides to order another party to stop its act of infringement on the exclusive right to use a registered trademark, the said order shall be enforced immediately.

A ruling made by the people's court on stopping a relevant act prior to the filing of a lawsuit shall be notified to the other party immediately, within five days at the latest.

Article 10　

If the party concerned is dissatisfied with the ruling on stopping the act of infringement on the exclusive right to use a registered trademark, it may apply for a review of the case within ten days from the date on which it receives the ruling. The execution of the ruling shall not be suspended during the period of the review.

Article 11　

The people's court shall examine the application for a review of the case submitted by a party concerned based on the following aspects:

(1) Whether or not the act being engaged in or to be engaged in by another party constitutes an infringement on the exclusive right to use a registered trademark

(2) Whether any irreparable damage will be caused to the legal rights and interests of the applicant if no protective measure is taken

(3) How the applicant has provided or will provide a security

(4) Whether or not ordering another party to stop a relevant act will cause damage to social public interests

Article 12

If a trademark registrant or an interested party does not file a lawsuit within 15 days after the people's court enforces the measure to stop a relevant act or have evidence preserved, the people's court shall rescind the measure taken according to the ruling.

Article 13　

If another party suffers losses as a result of the applicant's failure to file a lawsuit or of the mistakes in the application, the said party may file a lawsuit to the people's court which has the jurisdiction to request the applicant to make compensation or may also make a request for compensation in the lawsuit filed by the applicant or the interested party to stop the act of infringement on the exclusive right to use a registered trademark, and the people's court may make a ruling at the same time.

Article 14　

The ruling to stop an act of infringement on the exclusive right to use a registered trademark shall in general remain effective till the legal document of a final judgment takes effect.

The people's court may, according to the details of the case, also determine a particular time limit by which a relevant act is stopped. Upon the expiration of the said time limit, the court may, based on the request of the applicant or the condition of an additional security, make a ruling to continue stopping a relevant act.

Article 15

Another party which violates the ruling made by the people's court that orders the stopping of the act of infringement on the exclusive right to use the registered trademark or to have evidence preserved shall be treated according to the provision of Article 102 of the Civil Procedure Law.

Article 16　

If, at the time of filing a lawsuit to the people's court regarding the trademark infringement or during the process of the lawsuit, a trademark registrant or an interested party makes a prior request to stop the act of infringement on the exclusive right to use the registered trademark, the people's court may make a prior ruling accordingly. Matters such as relevant application, submission of evidence, determination of a security, and execution and review of the ruling shall be handled according to the relevant provisions of this judicial interpretation.

Article 17　

For a case of stopping the act of infringement on the exclusive right to use a registered trademark or to have evidence preserved prior to the filing of a lawsuit, an applicant shall pay expenses according to the “Regulations on the Payment of Legal Expenses to the People's Court”.