法释[2002]2号

(Promulgated by the Supreme People's Court on 9 January 2002 and effective as of 22 January 2002.)

颁布日期：20020109 　实施日期：20020122 　颁布单位：最高人民法院

The following interpretation of several questions concerning the application of law to pre-litigation injunctions to cease infringement of exclusive rights to use trademarks have been formulated pursuant to the PRC, Civil Law General Principles, the PRC, Trademark Law (the Trademark Law) and the PRC, Civil Procedure Law (the Civil Procedure Law), in order to protect the lawful rights and interests of trademark registrants and interested parties:

Article 1　Pursuant to Articles 57 and 58 of the Trademark Law, a trademark registrant or interested party may apply to the people's court for a pre-litigation injunction to cease infringement of the exclusive right to use a registered trademark or for the preservation of evidence.

Interested parties that may apply include licensees under trademark licensing contracts and lawful successors to registered trademark property rights. Among licensees under registered trademark licensing contracts, those under exclusive licensing contract may independently apply to people's courts whereas those under sole licensing contract may only apply if the trademark registrant does not apply.

Article 2　An application for a pre-litigation injunction to cease infringement of the exclusive right to use a registered trademark and for the preservation of evidence shall be submitted to the people's court with jurisdiction over trademark cases in the place where the infringement occurred or in the place of abode of the applicant.

Article 3　A trademark registrant or interested party applying to the people's court for a pre-litigation injunction to cease infringement of the exclusive right to use a registered trademark shall submit a written application. The application shall state clearly: (1) the parties and their basic details; (2) the specific content and scope of the application; and (3) the reason for the application, including a detailed description of the damage to the lawful rights and interests that the trademark registrant and the interested party would incur, and that would be difficult to remedy, if the relevant act were not promptly halted.

A trademark registrant or interested party applying to the people's court for a pre-litigation preservation of evidence shall submit a written application. The application shall state clearly: (1) the parties and their basic details; (2) the specific content, scope and whereabouts of the evidence to be preserved; (3) what the evidence to be preserved can prove; and (4) the reason for the application, including a detailed explanation of why the evidence may be destroyed or difficult to obtain later, and that the applicant and his representative, due to objective reasons, are unable to collect it themselves.

Article 4　When applying for a pre-litigation injunction to cease infringement of an exclusive right to use a registered trademark, applicants shall submit the following evidence:

1. trademark registrants shall submit the trademark registration certificate, and interested parties shall submit the trademark licensing contract, the supporting materials placed on the record with the trademark office, and a copy of the trademark registration certificate. If the applicant is the licensee under a sole licensing contract and applies independently, he shall submit proof that the trademark registrant waived his right to apply. If the applicant is the successor to registered trademark property rights, he shall submit evidence that he has succeeded or is in the process of succeeding to the rights.

2. evidence that the respondent is infringing or about to infringe upon the exclusive right to use the registered trademark, including the alleged infringing commodities.

Article 5　The rulings by the people's court in issuing pre-litigation injunctions to cease infringement of exclusive right to use registered trademarks or for the preservation of evidence shall be limited in scope to those for which the trademark registrant or interested party made his application.

Article 6　When applying for a pre-litigation injunction to cease infringement of an exclusive right to use a registered trademark, applicants shall provide security.

If an application for pre-litigation preservation of evidence may involve a loss of property to the respondent, the people's court may order the applicant to provide an equivalent security.

If the security provided in the form of a guarantee, mortgage, etc. by the applicant is reasonable and valid, the people's court shall admit the same.

If an applicant fails to provide security, the application shall be rejected.

When determining the scope of the security, the people's court shall take into account the sales income from, and reasonable costs for the storage, custody, etc. of the commodity concerned that would be involved in the event of issuance of an injunction to cease the relevant act, and the reasonable losses that may be caused by ceasing the relevant act, etc.

Article 7　If in the course of enforcement of a ruling to cease the relevant act of infringement the respondent may incur greater losses as a result of such measures, the people's court may order the applicant to correspondingly increase his security. If the applicant fails to increase his security, the relevant measures taken to enforce cessation of the act may be lifted.

Article 8　Measures taken under a ruling to cease infringement of the exclusive right to use a registered trademark shall not be lifted by the provision of security by the respondent, except where the applicant consents.

Article 9　The people's court shall render a written ruling within 48 hours after it has received an application for an injunction to cease infringement of the exclusive right to use a registered trademark submitted by a trademark registrant or interested party and finds that such application, on examination, complies with Article 4 hereof. If the ruling orders the respondent to cease infringement of the exclusive right to use the registered trademark, it shall be enforced immediately.

The people's court that rules on a pre-litigation injunction to cease the relevant act shall notify the respondent in a timely manner and no later than within five days.

Article 10　If either party is dissatisfied with a ruling on an injunction to cease infringement of the exclusive right to use a registered trademark, he may submit a one-time application for review within 10 days of the date of receipt of the ruling. The enforcement of the ruling shall not be suspended during the period of the review.

Article 11　When examining an application for review submitted by a party, the people's court shall investigate the following:

1. whether the act effected or about to be effected by the respondent constitutes infringement of the exclusive right to use the registered trademark;

2. whether refraining from taking the relevant measures would cause damage to the lawful rights and interests of the applicant that would be difficult to remedy;

3. whether the provision of security by the applicant; and

4. whether ordering the respondent to cease the relevant act would cause harm to the public interest.

Article 12　If the trademark registrant or interested party fails to institute an action within 15 days after the people's court has taken measures to halt the relevant act or to preserve evidence, the people's court shall lift the measures it ruled be taken.

Article 13　If the respondent incurs loss due to the applicant not instituting an action or due to the wrongfulness of the application, the party may institute an action with a competent people's court claiming compensation from the applicant, or he may claim damages during the action of infringement of the exclusive right to use the registered trademark instituted by trademark registrant or interested party, in which event the people's court may handle such claim together with the infringement action.

Article 14　The effect of a ruling ordering the cessation of an infringement of the exclusive right to use a registered trademark shall in general last until the legal instrument of the court of last instance enters into effect.

The people's court may, in accordance with the circumstances of the case, determine a specific period for the cessation of the relevant act. At the expiration of such period, a ruling ordering a continued cessation of the relevant act may be rendered on the basis of a petition by a party or an increase in the security.

Article 15　If the respondent violates the people's court's ruling ordering the cessation of an infringement of the exclusive right to use a trademark or the preservation of evidence, the violation shall be handled in accordance with Article 102 of the Civil Procedure Law.

Article 16　If the trademark registrant or interested party at the beginning of, or in the course of, a trademark infringement action with a people's court, files a petition for a preliminary injunction to cease infringement of the exclusive right to use the registered trademark, the people's court may render a preliminary ruling thereon. Matters stipulated in the preceding paragraphs related to applications, submission of evidence, determination of security, enforcement of rulings and reviews shall be handled in accordance with the provisions of this judicial Interpretation.

Article 17　Applicants in a case involving a pre-litigation injunction to cease infringement of the exclusive right to use a registered trademark or to preserve evidence shall pay charges in accordance with the Court Costs in People's Courts Procedures and the supplementary provisions thereto.