Study On Substantial Elements Of Interim Injunction In Intellectual Property Disputes

At the beginning of the 21st century,China established the injunction system.After China's accession to the WTO,it is stipulated in domestic law as required by international conventions.Due to the late start and slow development of China's intellectual property injunction system,the review standards of courts lack unity and rigor in practice.Until 2019,the judicial interpretation of the provisions on several issues concerning the application of law in the examination of the injunction cases of intellectual property disputes(hereinafter referred to as the injunction provisions)has made the most comprehensive provisions so far on the substantive examination requirements of the injunction in intellectual property cases.The above judicial interpretation of the four substantial requirements of injunction is very similar to the four elements of the United States review.Based on the study of American case law and the current predicament of China's judicial practice,the author analyzes some problems that should be paid attention to by Chinese courts when reviewing the necessity of injunction in intellectual property disputes.The first part of this paper starts from the origin and development of intellectual property injunction system,introduces the institutional framework of this system in China,as well as the international treaties acceded to and the framework of domestic law transformed by international law.In the judicial interpretation newly implemented in 2019,the four essential elements of the examination of the injunction of intellectual property are summarized in a comprehensive way,which are summarized as:likelihood of succeed,irreparable injury,the balance of hardship,and public interests.The second part is the main part of the article,mainly introduces the development of the four review elements in the American system,and compares the practice of our country's judicial practice.The United States applies the principle of reasonable probability of success in determining whether an applicant is likely to win.The US courts require the applicant to prove the reasonable possibility of winning the case from the following two aspects:the applicant proves that the action of the respondent constitutes infringement by the preponderance of evidence;The respondent cannot prove that the applicant's rights are not protected by law.In determining whether irreparable harm has been done,the majority of U.S.courts have recognized an inverse relationship between this requirement and the likelihood of succeed.However,the standards in China's judicial practice are not uniform,some of which adopt a relatively loose presumption principle of American courts in the past,while others put forward very strict requirements on the burden of proof of the applicant.In addition,American courts pay great attention to weigh the interests of both parties to the injunction application.The court will make a presumption between the parties whether the injunction is granted or not.If the bearing capacity of both parties to the issue of the injunction is too large,and the issue of the injunction will cause more damage to the respondent than the non-issue of the injunction,the court should be careful to issue the injunction.And American judicial practice focuses on the review of public interest factors.The main question in this part focuses on what public interests can be considered by judges and protected.In the third part,on the basis of the previous comparative analysis,it analyzes and summarizes some improvements and references to the essential documents of substantive examination of injunction disputes in China,in order to make contributions to solving the system problems in China.First of all,to prove the possibility of winning the case,strengthen the proof of the stability of the right.The principle of inverse proportionality shall be appropriately applied to the proof of the elements of irreparable injury.In addition,when balancing the interests of both parties,the combination with the likelihood of succeed can prevent the abuse of the injunction system.Finally,the supreme people's court should issue guidance cases to review the factors of public interest and try to unify the definition of "public interest" in judicial practice.