this week's Managing IP Innovation Forum in
That’s not because enforcement is routinely
terrible. Most IP practitioners we have heard from this week
say things aren’t bad and they are getting better.
People have been subjected to mass IP education campaigns,
officials are better trained and higher levels of domestic
innovation mean that China is increasingly incentivised to
crack down on IP infractions.
But IP owners do want Chinese courts to offer more
preliminary injunctions. Tough evidence rules and difficulties
in obtaining preservation orders make it hard for plaintiffs to
prove how much defendants profit from infringing IP. As a
result, many can only seek statutory damages, which are still
low. When damages orders have little deterrent effect,
preliminary injunctions take on particular significance.
So far, however, Chinese judges have been reluctant to grant
them. In 2011, for example, there were around 130 out of almost
60,000 civil IP cases (the vast majority of which were between
That is the result of guidance from the top. At the end of
2011 the Supreme People’s Court issued a judicial
interpretation setting out how lower courts should handle IP
which emphasised that judges should be cautious about granting
preliminary injunctions. That followed a
2009 judicial interpretation, which set out when courts
should consider not granting injunctive relief.
Now it seems as though the top court is rethinking its
position. We understand that members of its IP Tribunal have
been meeting IP professionals from other jurisdictions to hear
more about injunction practices in their countries –
with a view to issuing a new judicial interpretation next
Of course courts overseas don’t hand out
injunctions to anyone who wants one. Nor should they. But if
Chinese judges were encouraged to grant more, it might do much
to reconcile IP owners to low damages awards.