On The "Irreparable Harm" In The Essential Elements Of Intellectual Property Interlocutory Injunction

The purpose of the behavior preservation system is to avoid the irreparable damage caused by the lag of the litigation results of the intellectual property rights holders through the “judge without trial” method,so as to protect the rights holders 'rights in time.The “irreparable damage” is one of the review standards for applicable conduct preservation.The standard originated from the Patent Law,Trademark Law and Copyright Law amended in 2000 and 2001.It was formulated after my country's accession to the WTO to better exercise its rights and perform its obligations.Facing the increasing number of cases and increasingly complex case facts,and responding to judicial demands,the standard has gone through three specific situations,from the legal concept only to the establishment of goodwill and privacy,market share,uncontrollable infringement and significant increase in damage with a pocket article.Through an empirical analysis of 56 intellectual property behavior preservation cases,it was found that cases involving infringement of goodwill or rights of publication,privacy and other personal rights accounted for 1/5 of the total,mainly based on trademark attachment,commercial slander and unauthorized actions.Cases involving infringements that are difficult to control and significantly increase damage account for 1/4 of the total,mainly in the infringement scale and timeliness.Cases involving market share accounted for 1/3 of the total,mainly based on four cases of commercial slander,sales scale,timeliness,and attachment behavior.There were 26 other irreparable damages,mainly including competitive advantages,timeliness,and trade secrets.Reasonably categorizing the "irreparable damage" situation can help guide the courts in adjudication activities,and then reasonably limit the discretion of judges,and fully protect the legitimate rights and interests of rights holders in a timely manner.Through empirical analysis,it is found that the problems in current practice are "irreparable damage".The existing standards are too vague,under-typed,and lack of general definitions.Therefore,the standard needs to be further refined to better serve judicial practice.By reviewing relevant legislative experience abroad,summarizing and analyzing practical cases,redefining the standard of "irreparable damage",with a view to providing practical and effective standards,guiding judges to judge cases that no specific standards can refer to,and further ensuring the legality of stakeholders rights and interests.Reclassify the "irreparable damage" standard,and propose four types of "one-time" rights,which cannot be measured by money,market share,and cases cannot be executed,in order to better cope with the situation where no standards can be found in judicial practice at this stage.Through the above measures,with a view to further perfecting the behavior preservation system and enhancing the credibility of my country's judicial system.