The International And Comparative Law Study On The Preliminary Injunction In The Field Of Intellectual Property Rights

Through the introduction of the origin, development, traits and applicable principles of the preliminary injunction, the description of the practices in some major countries, and the analysis of the requirements of the provisional measures in TRIPS, this thesis is aimed to discuss the status of the preliminary injunction in China and to give some suggestions on improving the system of it.This thesis consists of preface and five chapters. The first chapter investigates the conception and development of the injunction, the traits of the preliminary injunction and its values in the fields of intellectual property rights. Firstly, this chapter reviews the historical backgrounds of the formation of the injunction, and points out that the injunction is an equitable remedy when compensation is not complete in common law system. Secondly, by comparing the preliminary injunction with the perpetual injunction, this chapter analyzes the former's traits and its unique value in the intellectual property rights fields.The second chapter gives a general description on the preliminary system in some major countries, including USA, UK, Germany, Japan and France. Moreover, this chapter also discusses the latest EU regulations on protecting the intellectual property rights---Richtlinie 2004/48/EG, aiming to provide helpful references to China's practices.The third chapter introduces the provisional measure in TRIPS, and points out that its protect strength is powerful, its aspect is wide and its enforcement is strong, and therefore it is a great progress in the international protection on the intellectual property rights. In addition, this chapter analyzes the relationship between the provisional measure in TRIPS and domestic laws.The fourth chapter discusses the system of preliminary injunction in China. First of all, it compares the preliminary injunction with advance execution and property preservation in China's civil procedural law. Then it makes clear definitions for some similar conceptions, such as property preservation, preliminary injunction and evidence preservation. Finally, it introduces the preliminary injunction in the fields of intellectual property rights in China.The fifth chapter gives some suggestions on improving the system of the preliminary injunction in China. On the basis of above analysis, this chapter advises that the applicable scope of the preliminary injunction should be extended; that the substantial standard for applying the preliminary injunction should be more definite; that the relating problems in guaranty system, for example, the amount and modes of guaranty, should be resolved; that the procedure of the preliminary injunction should be improved; and that the system of the revoke and the claim of the preliminary injunction should be established. Furthermore, the author also attempts to put forward some proposals in order to avoid the abuse of the preliminary injunction through analyzing a typical case.