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Judicial enforcement of Intellectual property laws
The TRIPS Agreement provides, for the first time, detailed requirements for the enforcement of intellectual property rights. In the third part, nearly one fourth articles of TRIPS are use to stipulate in detail the procedures and judicial remedies for the enforcement of intellectual property rights. Specifically, Art. 41(1) of the TRIPS Agreement provides: “ Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.” [89]
It’s important to point out that according to article 142 of General Principles of the Civil Law of the People’s Republic of China, which provides that “ if any international treaty concluded or accepted to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply.” TRIPS may be used to as a criterion law to settle disputes rising from intellectual property rights considering the differences between TRIPS and intellectual property rights protection law of china in commercial and civil field. Certainly there are different opinions as for how to apply WTO law in china now among legal experts, directly or indirectly? We have to wait for the judicial explains for this to be issued by the Supreme Court of the People’s Republic of China. Consequently to study TRIPS deeply and amend our intellectual property rights law based on it are more urgently.
China’s intellectual property laws do address infringements of intellectual property rights. According to China’s laws and regulations of intellectual property, punishment against illegal actions may be imposed by administrative and juridical means, with the latter having final adjudicatory authority.[90] For the first administrative approach, the related offices have the power to enter premises and seize goods, to order infringing acts to be stopped, to order delivery to authorities or destruction of infringing products, to order an accounting of profits and to levy fines. The administrative approach is frequently selected because it is readily available and fast, culminating in a raid within days of the filing of a complaint. However, The administrative approach is burdensome to the party seeking relief and often does not have lasting benefits. the administrative approach all too frequently results in only temporary relief in that the source of the infringing product is usually not the victim of the raid, which is typically the distributor. In addition, there is no damage available through this avenue and administrative sanctions are light.[91]
The other course of redress is the judicial approach. This avenue may be taken as an alternative to administrative action, or it may be undertaken simultaneously with or subsequent to such action.
It is useful to know the China’s legislative body which is divided into three different level. The first level is National People’s Congress and Standing Committee. The laws and rules published at this level overrule legislation published at other level if the latter conflicts with the former. The second level is the State Council. The State Council publishes what are called “ administrative statues.” It is important to point out that the Chinese courts decide cases relying only the legislation published by these two level. The third level consists of departments under the State Council. These departments may also publish rules, orders, regulations and circulations from time to time. The court may also make reference to these rules as necessary, but courts will not rely on them when deciding cases.[92]
Trial system
In intellectual property infringement cases, the domicile of the defendant or the place where the infringement actions took place determines which court has jurisdiction. According to the Constitution and other law, Chinese courts have the power and right to hear intellectual property case independently. In general, Chinese courts are divided into four levels: the Supreme People’s Court, the Provincial High People’s Courts (the level of provinces, municipalities under direct administration of central government, and autonomous regions), the Intermediate People’s Courts and District People’s Court. For example, When an American business seeks judicial relief in China, the lowest court it should go to is the Intermediate People’s Court, because American businesses are foreigners according to the Chinese Civil Procedural Law.[93]
In order to effectively enforce intellectual property laws, China has established the intellectual property rights trial division which has “ exclusive jurisdiction over all intellectual property cases not involving criminal or administrative law” in several High People’s Courts and Intermediate People’s Courts.[94] The Supreme People’s Court of China also established the Intellectual Property Rights Office.[95] It is likely that China will develop a different court system from that of the United States with special trial divisions in the People’s Courts of all levels to adjudicate cases related to intellectual property rights.[96]
In order to clarify the intellectual property litigation system, the Supreme People’s Court has published several judicial interpretations and other explanatory documents that cover many aspects of substantive and procedural law and are helpful in instructing the lower courts on how to handle intellectual property cases[97].
For the legislative relevant enforcement, the most important thing in China is the requirement of TRIPS Agreement in Article 41(4). This provision provides that almost all the final administrative decisions shall be subject to review by a judicial or quasi-judicial authority. However, according to the 1992 Patent Law, decisions issued by the Patent Office granting or rejecting a model or design patent are final and not subject to judicial review.[98] Similarly, under the 1993 Trademark Law, the decision of the Trademark Review and Adjudication Board, which is side-by-side with the Trademark Office and under the leadership of the State Industrial and Commercial Administration, approving or rejecting the registration for a trademark is also final and cannot be appealed to the judiciary.[99] As was noted in amendment of Trademark Law above, to comply with the TRIPS requirement, the Chinese Trademark Law has made judicial review available for all administrative decisions regarding determination of trademark rights. The 2000 Patent Law has addressed similar provisions under the articles 41, 46, 55 as well.
In addition, another fundamental changes to the intellectual property laws including current Copyright Law, Trademark Law and Patent Law, which have allowed property preservation system and the evidence preservation system taken by Chinese People’s Court according to Art. 44 and 50(b) of TRIPS Agreement.[100] Under such provisions, intellectual property rights holders may now seek a preliminary injunction to halt the activities of violators, rather than having to wait for the outcome of litigation.
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