Study On The Temporary Injunction In The Field Of Intellectual Property Rights

Temporary Injunction System is a main relief for equity law in the countries ofAnglo-American law system, which seeks to prevent threatened wrong or to restrain thecontinued commission of an ongoing wrong. Compared with the traditional means ofrelief-after-damages, the injunction system has a natural strength, which prevents violationsbefore the occurrence of the damage results to achieve relief earlier than the right. But, at thesame time, because an injunction is granted before a court trial is made and is usually basedon the argument of one party without debating or declaring, it would normally be consideredas against procedural justice. So the use of this kind of so-called “Against Procedural Justice,For Substantial Justice” relief should be strictly and judiciously restricted.Being different from civil rights, intellectual property has the peculiarities of intangibleobjects, strict time limit and relative internationalism. Therefore, when intellectual property isviolated, it is difficult to protect the rights of oblige through the traditional measure ofafterwards remedy, and furthermore, the long processing of litigation may hinder theacquirement and protection of the rights of oblige. Under this condition, efficient preventingof the tort is more important than afterwards remedy.By expounding Temporary Injunction system’s basic connotation, tracing its history anddeveloping, and the comparative study of the major countries’ and TRIPS’ TemporaryInjunction system, this article investigates legislative grounds of the Temporary Injunction.Based on the above analysis, it concludes that there are many deep and practical problems inChina and it puts forward the solutions in procedural in nature, standard of review, thesecurity system and hearing procedures.This thesis is constituted of five parts. The first part is mainly expounded the frame ofTemporary Injunction system, which includes the concept, the development of its history, thefeatures and function, the legal nature an, the differences and relation compared with otherpreservation measures. The second part mainly elaborates the grounds and importance ofestablishing Temporary Injunction system in Intellectual Property Law, by the principle of thebalance of interests, the maximize benefits, and characteristics of intellectual property. Thethird part mainly elaborates on Temporary Injunction system of the typical countries of thetwo genealogies of law and TRIPS, and finds out the commonness and differences in thehistorical traditions and institution designs among British, USA, Germany, and Japan, and sums up the main traits and institution construction of Temporary Injunction system. Thefourth part introduces the background of legislation of interlocutory injunction system and itssources of law in China. It points out the drawbacks in the theoretical basis, system buildingand practical implementation of the contemporary institutions. The fifth part attempts toperfect China’s intellectual property contemporary institution system. Based on the aboveanalysis, we should establish a clear standard of review by law, relax the requirements toguarantee, and further promote the applicable to perfect the system of temporary injunction.In addition, we should set the hearing procedure by learning from foreign and TRIPS toensure the fairness and justice of the. Finally, it investigates the problems of the die out of thetemporary injunction in order to limit the abuse of right, which includes the lifting of thejunction and the relief of error junction.