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In order to earnestly protect the lawful rights and interests of trademark registrants and interested persons, we hereby, in accordance with the relevant provisions in the "General Principles of Civil Law of the People's Republic of China", the "Trademark Law of the People's Republic of China" (hereinafter referred to the Trademark Law) and the "Civil Litigation Law of the People's Republic of China" (hereinafter referred to the Civil Litigation Law), give our interpretation as follows regarding the application of law for stopping the infringement upon the right of the exclusive use of a registered trademark and evidence preservation: Article 1. In accordance with Article 57 and Article 58 of the Trademark Law, a trademark registrant or interested person may file an application to the people's court for ordering the infringer to stop the infringement upon the right to the exclusive use of a registered trademark or for preserving the evidence before filing a lawsuit. The interested persons who file an application shall include the licensees to the license contracts for the use of the trademark, and the lawful inheritors of registered trademark property rights. Among the licensees of the license contracts for the use of registered trademarks, the licensee of an exclusive license contract may file an application independently to the people's court; while the licensee of a sole license contract may file an application on the condition that the trademark registrant does not file one. Article 2. An application for ordering the infringer to stop the infringement upon the right to the exclusive use of a registered trademark or for preserving the evidence before filing a lawsuit shall be filed to the people's court at the place where the infringement is committed or at the domicile of the respondent, which has jurisdictional power over the trademark case. Article 3. Where a trademark registrant or interested person files an application to the people's court for stopping the infringement upon the right to the exclusive use of its/his registered trademark before filing a lawsuit, it/he shall submit a written petition. The petition shall state: (1) the party concerned and its/his basic information; (2) the specific contents and scope of the application; and (3) the reasons for filing the application, including the specific explanations of the circumstance that the lawful rights and interests of the trademark registrant or interested person will suffer from irretrievable damage if the relevant act is not stopped in time. Where a trademark registrant or interested person files an application to the people's court for preserving evidence before filing a lawsuit, it/he shall submit a written petition. The petition shall state: (1) the party concerned and its/his basic information; (2) the specific contents, scope and locality of the application for preserving the evidence; (3) the object which can be proven by the evidence in the request for preservation; (4) the reasons for the application, including the specific explanations of the circumstance that the evidence might be destroyed or lost, or difficult to be obtained thereafter, and neither the party concerned nor its/his agents ad litem can collect the evidence by himself due to objective causes. Article 4. An applicant shall submit the following evidence when filing an application for stopping the infringement upon the right to the exclusive use of a registered trademark before filing a lawsuit: (1) A trademark registrant shall submit the trademark registration certificate, and an interested person shall submit the contract on license for the use of the trademark, the materials to be archived in the Trademark Office, and a photocopy of the trademark registration certificate; if the licensee to a sole license contract independently files an application, it/he shall submit evidential materials to prove that the trademark registrant has waived the right to application; an inheritor of the registered trademark property rights shall submit evidential materials to prove that he has inherited or is inheriting the trademark property rights; (2) The evidence proving that the respondent is committing or is going to commit the infringement upon the right to the exclusive use of a registered trademark, shall include the goods under the charge of infringement. Article 5. The particulars ruled by a people's court on stopping the infringement upon the right to the exclusive use of a registered trademark or on preserving evidence before filing a lawsuit shall be limited to the scope of application filed by the trademark registrant or interested person. Article 6. An applicant shall provide guaranty when filing an application for stopping the infringement upon the right to the exclusive use of a registered trademark before filing a lawsuit. Where an applicant's application for preserving evidence before filing a lawsuit might lead to the respondent's loss of property, the people's court may order the applicant to provide corresponding guaranty. Where the guaranty provided by the applicant in the form of warranty or mortgage, is reasonable and effective, the people's court shall permit such guaranty. Where the applicant is unable to provide guaranty, his application shall be rejected. A people's court shall, when determining the scope of guaranty, consider the revenues from selling the goods involved in the order for stopping the relevant act, the reasonable expenses for storage and custody, and the reasonable losses resulting from stopping the relevant act. Article 7. Where, in the process of enforcement of a ruling on stopping the relevant act, the respondent might suffer from heavier losses due to this measure, the people's court may order the applicant to add corresponding guaranty. If the applicant fails to add guaranty, the people's court may cancel the relevant stopping measure. Article 8. The measure ruled to be taken for stopping the infringement upon the right to the exclusive use of a registered trademark shall not be cancelled due to the respondent's provision of guaranty, unless it is otherwise consented to by the applicant. Article 9. Where a people's court finds, after acceptance and examination, that the application filed by a trademark registrant or interested person for stopping the infringement upon the right to the exclusive use of a registered trademark conforms to Article 4 of these Provisions, it shall make a written ruling within 48 hours. If the respondent is ordered in the ruling to stop the infringement upon the right to the exclusive use of a registered trademark, the ruling shall be enforced immediately. Where a people's court makes a ruling on ordering the infringer to stop the relevant act before it fillies a lawsuit, it shall timely notify the respondent within 5 days at latest. Article 10. Where a party concerned is dissatisfied with the ruling on ordering the infringer to stop the infringement upon the right to the exclusive use of a registered trademark before it files a lawsuit, it may, within 10 days as of receipt of the ruling, apply for reconsideration for once. The enforcement of the ruling shall not be stopped during the period of reconsideration. Article 11. A people's court shall examine the following aspects of the application filed by a party concerned for reconsideration: (1) Whether the act that the respondent is committing or is going to commit has infringed upon the right to the exclusive use of a registered trademark; (2) Whether the failure to take relevant measure will cause irretrievable damage to the lawful rights and interests of the applicant; (3) Provision of guaranty by the applicant; and (4) Whether public interests will be damaged if the respondent is ordered to stop the relevant act. Article 12. Where a trademark registrant or interested person fails to file a lawsuit within 15 days after the people's court has take the measure of stopping the relevant act or preserving evidence, the people's court shall cancel the measure ruled to be taken. Article 13. Where an applicant fails to file a lawsuit or files a wrong application, thus causing any loss to the respondent, the respondent may file another lawsuit to the people's court with jurisdiction so as to claim compensation against the applicant, or may claim compensation in the lawsuit filed by the trademark registrant or interested person against the infringement upon the right to the exclusive use of a registered trademark, and the people's court may handle the matters together. Article 14. The effect of a ruling on stopping the infringement upon the right to the exclusive use of a registered trademark shall usually be sustained until the legal document of final instance becomes effective. A people's court may also, as the case may be, determine the specific time limit for suspension of the relevant act. The people's court may, at the expiry of the time limit and upon the request of the party concerned and the information on adding guaranty, make a ruling on continue stopping the relevant act. Article 15. Where a respondent violates the ruling of the people's court on ordering suspension of the infringement upon the right to the exclusive use of a registered trademark or preservation of evidence, the case shall be handled in accordance with Article 102 of the Civil Litigation Law. Article 16. Where a trademark registrant or interested person requests for advance suspension of the infringement upon the right to the exclusive use of a registered trademark when filing a lawsuit to the people's court against infringement upon the trademark right, or in the process of such a lawsuit, the people's court may make a ruling in this regard first. The relevant matters involved in the preceding paragraph such as application, submission of evidence, determination of guaranty, enforcement of rulings, and reconsideration, shall be handled with reference to the relevant provisions in this Judicial Interpretation. Article 17. With respect to a case on suspending the infringement upon the right to the exclusive use of a registered trademark or on preservation of evidence before filing a lawsuit, the applicant shall pay the fees in accordance with the "Regulation on Litigation Fees for the People's Courts" and the supplementary provisions thereof. |
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