Supreme People's Court: Strengthen the punishment of intellectual property infringement acts!

 2020-09-16  153


                                                                                                   


The Supreme People's Court issued its Opinions on Strengthening the Punishment of IP Infringements in accordance with the Law in order to try cases impartially, to effectively deter IP infringements, and to create a sound business environment under the rule of law.

 

A. Strengthen the application of preservation measures.

1. Where an infringement or imminent infringement of an intellectual property right or any other act will cause irreparable damage, and the obligee applies for preservation of the act, the people's court shall examine and make a ruling in a timely manner according to law.

 

2. Where the holder of an intellectual property right applies for both a prior judgment for the cessation of the infringement and an application for act preservation in an intellectual property right infringement lawsuit, the people's court shall examine the two in a timely manner in accordance with law.

 

3. If the obligee has preliminary evidence proving the existence of acts of infringement of intellectual property rights and the evidence is likely to be destroyed or lost or difficult to obtain later, and the people's court applies for the preservation of evidence, the people's court shall examine and make a ruling in a timely manner according to law.The technical investigation officer may participate in the preservation of evidence involving strong professional technical issues.

 

4. The people's court may presume that the obligee's claim on the evidentiary matters involved in the evidence is established if the accused infringer, without authorization, damages or transfers the product or other evidence of which preservation measures have been taken, so that the facts of the infringement cannot be ascertained.In cases of obstruction of proceedings as prescribed by law, compulsory measures shall be taken according to law.

 

B. Judge to stop the infringement according to the law.

5. Where the facts of infringement are clear and the infringement can be ascertained to be established, the people's court may make a judgment in advance to stop the infringement in accordance with law.

 

6. With respect to counterfeit or pirated goods and materials and tools mainly used for the production or manufacture of counterfeit or pirated goods, the people's court shall support the right holder who, in civil proceedings, proves the existence of the said goods and requests speedy destruction, except in special circumstances. Under special circumstances, the people's court may order that materials and tools, which are mainly used for the production or manufacture of counterfeit or pirated goods, be disposed of outside commercial channels, so as to minimize the risk of further infringement. If the infringer requests compensation, the people's court shall not support it.

 

C. Increase compensation in accordance with the law.

7. The people's court shall make full use of such systems and methods as proof obstruction, investigation and collection of evidence, evidence preservation, professional assessment and economic analysis to guide the parties to provide evidence actively, comprehensively, correctly and honestly, improve the scientific and rational calculation of the amount of damages, and fully make up for the loss of the right holder.

 

8. The people's court shall make active use of the relevant data provided by the party concerned from the industrial and commercial tax authorities, third-party commercial platforms, websites of the infringer, publicity materials or documents disclosed in accordance with the law, as well as the average profit rate of the industry, etc. to determine the profits derived from the infringement in accordance with the law.

 

9. Where the obligee, according to law, requests to determine the amount of compensation based on the infringement profits and has provided evidence, the people's court may order the infringer to provide evidence of the infringement profits in his possession; If the infringer refuses to provide the compensation without justified reasons or fails to do so as required, the people's court may determine the amount of compensation on the basis of the claim of the obligee and the evidence on the record.

 

10.  For those who intentionally infringe intellectual property rights of others, if the circumstances are serious, the obligee shall be supported to claim punitive damages in accordance with the law, and the deterrent effect of punitive damages on intentional infringement shall be fully exerted.

 

11.  The people's court shall rationally determine the amount of the statutory compensation in accordance with the law. Where the infringing act causes heavy losses to the obligee or huge profits to the infringer, in order to fully compensate the obligee's losses and effectively deter the infringing act, the people's court may, at the request of the obligee, determine the amount of legal compensation close to or up to the maximum limit.

 

The people's court should consider when determining legal compensation from high factors include the infringer deliberate whether there is infringement, whether infringement for the main business, whether there is any repeat infringement, tort whether duration is long, whether the vast area, whether may endanger personal safety, damage to the environment resources or harm the public interests, etc.

 

12.  Where the obligee requests in the procedure of second instance to include the additional reasonable expenses paid for stopping the infringing act into the amount of compensation, the people's court may examine the matter together.

 

13.  The people's court shall, taking into account factors such as the complexity of the case, the specialty and intensity of the work, trade practices, and the guided price of the local government, reasonably determine the lawyer's fee that the obligee claims for compensation according to the evidence provided by the obligee.

 

D. Intensify criminal crackdown.

14.  The amount of illegal business operations and illegal income committed to the crime of infringing intellectual property rights through online sales shall be determined with comprehensive consideration given to electronic data of online sales, records of bank account transactions, delivery notes, records of computer systems of logistics companies, testimony of witnesses, statements of defendants and other evidence.

 

15.  In the case of counterfeiting registered trademarks of commodities such as emergency rescue, disaster relief and epidemic prevention materials during a specified period of time, or violating intellectual property rights again after being subjected to administrative punishment for infringing intellectual property rights, the offender shall be given a heavier punishment according to law, and suspension of sentence is generally not applicable.

 

16.  The illegal gains shall be strictly recovered in accordance with the law, the application of fines shall be strengthened, and the ability and conditions for criminals to infringe intellectual property rights again shall be deprived.