Temporary Injunction Of Intellectual Property Rights And Inspiration

The injunction was originally a unique relief system in the common law, rootedin the rules of equity，as the supplement of damages relief. According to injunctionissued during the proceedings in which the different stages can be divided into thepreliminary injunction, the injunction during the proceedings and permanentinjunction, which the preliminary injunction and the injunction during theproceedings collectively referred to as the temporary injunction. The temporaryinjunction also known as the interlocutory injunction means a requirement made bythe judge during the proceedings, requiring the infringer for or not for a certainbehavior. As a prior preventive relief, this system is quite effective in the preventionof infringement and to stop the infringement to further expand. In the field ofintellectual property, protection of the rights is so unique that compensation reliefmeasures can not provide effective protection. Then the temporary injunction systemis able to fill the blank period of protection of the rights and to prevent infringement,to avoid damage to expand.After long-term development in common law countries, the temporaryinjunction system is relatively mature and widely applicable. For example, thetemporary injunction in the United States includes temporary restraining order andpreliminary injunction. In civil law countries, the temporary relief measures as acivil preservation measures, similar to the temporary injunction on the common lawsystem. Temporary measure in the TRIPS Agreement includes temporary injunction,evidence preservation and property preservation. Throughout the relevant provisionsin different countries, mainly in the following in common: first, the temporaryinjunction is a common civil law remedies. Second, the temporary injunction can beapplied before the proceeding begins, can also be applied in the course of theproceedings. Third, Temporary injunction standard of review for different countries usually consider the following factors, for example, the applicant is qualified, therisk of damage, the interests of applicants and the public interest. Fourth, the reviewprocess for preliminary injunction is usually relatively simple, but the proceduralrights of the parties can basically guarantee.In the current legislation, the temporary injunction system to introduce a shorttime, and applies only to the field of intellectual property protection. And this systemhas played an important role, but the problem still exists: first, the scope ofapplication is limited to the field of intellectual property, and there is no uniformlegislation. Second, the injunction type is not complete, and there is no distinctionbetween the preliminary injunction and complaint ban. Third, under the jurisdictionof the case and accepted there is certain confusion. Fourth, the current legislationdoes not provide a clear standard of review. Fifth, the relevant provisions require theapplicant to provide security, lack of flexibility. Sixth, the provisions on the reviewprocess requires only that choose to apply to the inquiry procedure, the lack of basicprotection of the parties procedural rights. Seventh, the current provisions providethat the rights of applicants apply for reconsideration, but the specific provisions yetto be improved.Learn from the mature foreign legislative experience, I believe, should be fromthe following four aspects to perfect the system of temporary injunction: First,uniform provisions concerning the system of temporary injunction in the CivilProcedure Law, as damages for relief supplement; It should also be a cleardistinction between the ban types, including preliminary injunctions, the injunctionduring the proceedings and permanent injunction. Second, a clear standard of reviewof the temporary injunction, I believe that the following three aspects should beconsidered, such as the likelihood of success, the measure of damages, the publicinterest. Third, it should be relaxing the collateral requirements of the temporaryinjunction in order to better respond to changing circumstances. Fourth, improve thereview and execution of the temporary injunction, on the one hand, the establishmentof a special review of department to resolve the applicant’s jurisdiction andadmissibility; on the other hand, improve procedural safeguards mechanism,increasing the program of hearings and court debate, in order to protect the procedural rights of the parties, at the same time improve the review procedures.