Frontier legislation of behaviour preservation regarding IP rights

Fuzhou Intermediate People’s Court issued an injunction during the litigation to prohibit a number of Apple affiliates to import, sell or offer to sell a number of Apple mobile phones involved with the patent at issue on 10 December 2018. Afterwards, the Supreme People’s Court promulgated the Provisions on Several Issues Concerning the Application of Laws in Adjudication of Behaviour Preservation Cases Involving Intellectual Property Disputes on 12 December 2018 in order to improve and standardize behaviour preservation in intellectual property (IP) disputes.

Two such successive incidents made injunctions on IP rights a hot topic in China’s judicial practice on intellectual property. Referring to the previous relevant legislation and representative cases, the authors believe that the above-mentioned provisions show obvious improvements and progress in the following aspects.

The provisions specify the scope of causes of action of IP cases in which the injunctions are applied. Articles 100 and 101 of the Civil Procedure Law provide for behaviour preservation and preliminary injunctions. In addition, the Patent Law, the Copyright Law and the Trademark Law respectively provide the injunctions on infringements of patents, copyrights and trademarks. The current Anti-Unfair Competition Law does not provide for injunctions. Article 1 of the provisions clarifies that these provisions shall apply to “disputes related to intellectual property rights and competition”, which clarifies the issue of behaviour preservation in unfair competition disputes.

You Minjian is the founding partner, and Li Yuan is an associate, at Co-effort Law Firm

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