CMS Expert Guide on Preliminary Injunctions in IP in China

PIs apply to claims involving the infringement of intellectual property rights including patents, trademarks, copyrights, geographical indications, trade secrets, integrated circuit layout designs, new plant varieties and other objects specified by law.

No. While there is no requirement for a letter before action, in certain circumstances, such a step may be useful to demonstrate the reasonable conduct of the applicant and/or urgency and necessity of the application.

No. However, it is important to note that timing may impact the court’s assessment of urgency and necessity.

In an urgent situation (subject to discretion of the court), PIs shall be issued within 48 hours.

Suspension of PI proceedings is not explicitly provided for under statutory laws.   However, there are certain circumstances and practical considerations under which the proceedings may effectively be suspended or delayed.  PI proceedings may be terminated or withdrawn. 

1. Evidence to prove the identity of the applicant. The applicant shall be the right holder or an interested party.
2. Evidence to prove the existence of the right on which the application is based. For example, where an applicant applies for a PI on the basis of a utility model or design patent, the applicant shall submit a search report or a patent evaluation report made by the patent administrative department, or a decision of the patent reexamination board to maintain the patent.
3. Evidence to prove the urgency of a PI.
4. Evidence to prove irreparable harm to legitimate rights and interests or hard execution of the act preservation measures if a PI is not taken. “Irreparable harm” may mean irreversible damage to the applicant, difficulty to control the infringement action and aggravation of damages, evident reduction of the applicant’s relevant market share, or otherwise cause the applicant to suffer any irreparable injury.
5. Evidence of provision of a security deposit or reasons why deposit is not required.

Yes. In exceptional cases of urgency or where an inter partes inquiry may affect the execution of the preservation measures, an ex parte PI may be obtained, subject to the discretion of the court.

In China, the costs associated with PI proceedings are potentially recoverable from the counterparty if the applicant ultimately prevails in the underlying litigation, but with some important limitations, including:

1. Recovery of costs requires winning the underlying IP infringement lawsuit, not just obtaining the PI.
2. The applicant must formally request the recovery of costs as part of the final judgment and provide supporting documentation to substantiate the costs incurred.
3. The court has discretion in determining the allocation of costs.
4. There are no statutory provisions specifically addressing cost recovery for preservation proceedings, so recovery follows general principles for litigation costs.

Generally, a security deposit is required, unless reasons can be provided to show a deposit is not required.

The court has discretion in setting the amount, and the security amount provided by the applicant shall be equivalent to the loss that the respondent may suffer as a result of the enforcement of the injunction, including reasonable loss of sales proceeds and custody expenses, etc., of the products involved in stopping the infringement.

In certain exceptional cases, the court may waive the requirement for a security deposit, but this is at the discretion of the court and is not common practice.

Yes. It is possible to appeal against a PI, but it will not suspend the effect of the PI during the period of the appeal. 

Where the respondent is objecting to the PI and applies for a reconsideration, the court shall examine the application and make a ruling within 10 days from receipt of the application for reconsideration.

A PI will be effective and implemented immediately on issuance. 

If a party refuses to perform a PI ordered against them, a court may fine or detain, (in the case of an individual, that individual, or in the case of an entity, the head of a company/responsible person,) depending on the seriousness of the case. In serious cases, criminal sanctions will be pursued.

Yes. If the PI was issued wrongfully, the applicant shall compensate the counterparty for any loss incurred as a result of the PI.

Yes.  Further proceedings on the merits are essential for the court to grant a final injunction. The process involves continued evidence collection, court hearings, and a thorough evaluation of the merits of the case. The court's final judgment, based on a comprehensive assessment of the evidence and legal standards, determines whether a final injunction is warranted to permanently stop the infringing activities. This ensures that the plaintiff's IP rights are protected following a final determination of the case