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Temporary
Restraining Order and Evidence Preservation on
Infringement of Registered Trademark
Interpretation by the Supreme People¡¯s Court
Concerning the Laws Applicable to the Temporary
Restraint Order on the Infringement of Exclusive Right
of Registered Trademarks and Evidence Preservation
(Adopted at the 1203rd Meeting of the Trial Committee of
the Supreme People¡¯s court on December 25, 2001)
(2002) Fashi No.2
Bulletin of the Supreme People¡¯s Court of the
People¡¯s Republic of China
Interpretation by the Supreme People¡¯s court
Concerning the Laws Applicable to the Temporary
Restraint Order on the Infringement of Exclusive Right
of Registered Trademarks and Evidence Preservation,
adopted at the 1203rd meeting of the Trial Committee of
the Supreme People¡¯s court of the People¡¯s Republic
of China on December 25, 2001, is now promulgated and
put in force as of January 22, 2002.
January 9, 2002
Issues concerning the laws applicable to the temporary
restraining order on the infringement of registered
trademarks and evidence preservation are interpreted as
follows pursuant to the provisions of the General
Principles of Civil Law of the PRC, Trademark Law of the
PRC (Trademark Law), and Civil Procedure Law of the PRC
(Civil Procedure Law) to ensure the protection of the
legal rights and interests of the trademark registrants
and the interested parties:
Rule 1. In accordance with the provisions of Article 57
and Article 58 of the Trademark Law, trademark
registrant or the interested parties may apply with the
people¡¯s court for temporarily restraint of the
infringement of registered trademarks¡¯exclusive right
or for evidence preservation.
The parties entitled to the application include the
licensee of the trademark license contract and legal
heirs of the property right of registered trademarks. Of
the licensees of the license contracts of registered
trademarks, licensee of exclusive license contract may
file the application with the people¡¯s court on his
own part, while the licensee of the sole license
contract may file the application on the conditions that
the trademark registrant does not file the application.
Rule 2. The application for the temporary restraint of
infringement of a registered trademark¡¯exclusive right
and evidence preservation shall be filed with the
people¡¯s court with jurisdiction over trademark cases
where the infringement is executed or where the
applicant is domiciled.
Rule 3. In the application with the people¡¯s court for
temporary restraint of infringement of a registered
trademark¡¯exclusive right, the trademark registrant or
the interested parties shall submit a written
application form which carries: (a) the interested party
and its basic information; (b) specific content and
scope of the application; (c) reasons for the
application, including detailed description of the
irreparable damages on the legitimate rights and
interests of the trademark registrant or the interested
parties if the related acts are not duly prohibited.
In the application with the people¡¯s court for
evidence preservation, the trademark registrant or the
interested parties shall submit a written application
form which carries: (a) the interested party and its
basic information; (b) specific content, scope and
location of the evidence preservation application; (c)
object that the evidence applied for preservation can
prove; (d) reasons for the application, including
detailed description that the evidence is possible to be
destroyed or difficult to be obtained later, and the
interested party and its attorney are incapable of
collecting the evidence by themselves for impersonal
reasons.
Rule 4. In the application for the temporary restraint
of the infringement on exclusive right of registered
trademark, the applicant shall submit the following
evidences:
(a) The trademark registrant shall submit trademark
registration certificate. The interested parties shall
submit duplicates of the trademark license contract and
its recordal certification with the Trademark Office and
trademark registration certificate. Where the licensee
of the sole license contract files the application on
his own part, he/it shall submit evidences to prove the
trademark registrant disclaims the application. The heir
of the property right of a registered trademark shall
submit evidences to prove that he is inheriting or has
already inherited the said right.
(b) The evidences to prove the applied party is
executing or is to execute infringement of the exclusive
right of a registered trademark, including the
prosecuted infringing goods be submitted.
Rule 5. The items in the adjudication made by the
people¡¯s court on the temporary restraint of
infringement on exclusive right of registered trademark
or evidence preservation shall be restricted to the
scope of the application made by the trademark
registrant or the interested parties.
Rule 6. The applicant shall provide guarantee for the
application for the temporary restraint of infringement
of exclusive right of a registered trademark.
Where the application for evidence preservation might
involve the property losses of the applied party, the
people¡¯s court may order the applicant to provide
relevant guarantee.
The people¡¯s court shall accept such reasonable and
effective guarantees in the form of promise or pledge
etc. as provided by the interested party.
Where an applicant fails to provide guarantee for his
application, the application shall be refused.
In deciding the guarantee scope, the people¡¯s court
shall take into consideration the sales income of the
goods on which temporary restraining order is imposed,
the reasonable storage and safekeeping expenses,
possible losses incurred from the applied party's
cessation of the said act, reasonable expenses including
the employee's remuneration, and other factors.
Rule 7. In the enforcement of temporary restraining
order, if the applied party might suffer from greater
losses due to such measures, the people¡¯s court may
order the applicant to supplement relevant guarantees as
such. Where the applicant fails to supplement the
guarantee, the related restraining measures shall be
relieved.
Rule 8. The temporary restraining order imposed on
infringement of exclusive right of a registered
trademark shall not be relieved because the applied
party offers to provide guarantee, except as otherwise
agreed by the applicant.
Rule 9. The people¡¯s court shall make adjudication in
writing within 48 hours from acceptance of the
application filed by a trademark registrant or the
interested parties for the temporary restraining order
on the infringement of a registered trademark¡¯
exclusive right if it decides through examination the
application falls under Rule 4 of this Regulation. Where
the temporary restraining order is imposed on the
applied party for his infringement of the exclusive
right of registered trademark, it shall be executed
immediately.
The people¡¯s court shall serve its adjudication on the
enforcement of temporary restraining order on the
applied party in due course, not exceeding 5 days of the
adjudication.
Rule 10. If any interested party is dissatisfied with
the adjudication on temporary restraint of infringement
of a registered trademark¡¯ exclusive right, it may
have one chance to apply for review within 10 days from
receipt of the adjudication. The enforcement of the
adjudication shall not be suspended in the course of
review.
Rule 11. The people¡¯s court shall examine the review
application by the interested parties from the following
aspects:
(a) if the applied party's act that is executing or is
to be executed constitutes infringement of exclusive
right of a registered trademark;
(b) if the applicant's legitimate rights and interests
shall be irreparably damaged without enforcement of
relevant measures;
(c) the guarantee status of the applicant;
(d) if the public interests shall be damaged due to the
enforcement of temporary restraining order on the
applied party.
Rule 12. Where a trademark registrant or the interested
party fails to institute legal proceedings within 15
days from the enforcement of the measures in relation to
temporary restraining order or evidence preservation by
the people¡¯s court, the people¡¯s court shall relieve
the measures taken according to the adjudication.
Rule 13. Where the applied party suffers losses due to
the fact that the applicant fails to institute legal
proceedings or makes a false application, the applied
party may sue to claim damages from the applicant with
the people¡¯s court with jurisdiction, or may claim
damages in the litigation for the infringement of
exclusive right of the registered trademark proposed by
the trademark registrant or the interested parties, and
the people¡¯s court may handle them in the same case.
Rule 14. The validity of the adjudication on the
temporary restraint of infringement of a registered
trademark¡¯exclusive right shall generally be sustained
until the legal writ of final instance is effected.
The people¡¯s court is entitled to decide a specific
term of the temporary restraint order. At expiration of
the term, the people¡¯s court may adjudicate to keep on
enforcing the temporary restraining order at request of
the interested parties and with guarantee supplemented.
Rule 15. Where the applied party violates the
adjudication made by the people¡¯s court on the
temporary restraint of the infringement of a registered
trademark¡¯s exclusive right or evidence preservation,
it shall be handle in accordance with the provisions of
Article 102 of the Civil Procedure Law.
Rule 16. Where a trademark registrant or the interested
parties request for temporary restraint of infringement
of a registered trademark¡¯s exclusive right when he/it
sues to the people¡¯s court for trademark infringement
or when the case is under trial, the people¡¯s court
may make adjudication on the request first.
The issues such as application, delivery of evidence,
determination of guarantee, enforcement of adjudication,
and review shall be handled in reference to relevant
provisions in this judicial interpretation.
Rule 17. Any applicant of the cases in relation to
temporary restraint of the infringement of the exclusive
right of registered trademarks and evidence preservation
shall be responsible for the payment of fees according
to the Charges for Litigation stipulated by the
people¡¯s court and its supplementary provisions.
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