The Supreme People's Court has issued the Opinions on Intensifying Punishment for the Intellectual Property Rights Infringement According to Law (the "Opinions").
The Opinions centrally stipulate act preservation, evidence preservation, obstruction to the burden of proof, cessation of infringement, punitive damages and other contents. Shanghai Dongjin finds the below as main points.
I. Strengthening the Application of Preservation Measures
- If an obligee applies for the pre-judgment about the cessation of infringement in a lawsuit about the intellectual property rights infringement and for act preservation, the court shall timely make examinations together according to law.
- Where an accused infringer arbitrarily damages or transfers any alleged infringing product for which any preservation measure has taken or any other evidence, making any infringement fact impossible to be ascertained, the court may presume that the claim of the obligee about proof issues under the said evidence is tenable.
II. Ordering the Cessation of Infringement according to the Law
Except for special circumstances, counterfeit and pirated commodities as well as materials and tools primarily used to produce or manufacture such commodities shall be destroyed as per the request of an obligee.
III. Intensifying Compensation according to the Law
People's courts shall actively use the relevant data provided by the parties from departments of industry, commerce and tax, third-party commercial platforms, infringers' websites, publicity materials or legally disclosed documents, and industry average profit margins, to determine the infringement profits according to the law.
IV. Intensifying Criminal Crackdowns
Any person, primarily engaged in the business of the intellectual property rights infringement, counterfeiting any registered trademark of commodities such as rescue and relief work and epidemic prevention supplies in a specific period or infringing upon any intellectual property right again and therefore constituting a crime after receiving administrative punishment for the intellectual property right infringement, shall be subject to heavier punishment according to laws, and will generally not be granted with probation.
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Mr. Mike Chang
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