On April 21, 2009, China’s Supreme People’s Court promulgated its “Opinion on Several Issues Concerning Trials of IP Cases to Serve the Public Interest under the Current Economic Environment” In this Opinion, the Supreme People’s Court first clarifies that injunctive relief should not necessarily be granted in all intellectual property infringement cases. Under certain circumstances, the Court stated that an award of reasonable or sufficient damages can be an effective substitute for claims of injunctive relief.


Xu Jing, Partner, Intellectual Property


In the Opinion, the Supreme People’s Court notes that if, “[t]he injunctive order, if granted, would significantly harm the interests of one of the parties concerned; or is contrary to the public interest; or would be impractical to enforce, the Court may, after considering the specific circumstances of the particular case, not grant the injunctive relief, but instead settle the dispute by awarding sufficient compensation, economic damages or through other alternative means.”

Traditionally, injunctive relief was available in all cases where infringement is established. The abovementioned guidelines offered by the Opinion will likely change such commonly-accepted practices under the premise of economic stability. The Supreme People’s Court also emphasized that the courts shall evaluate the losses suffered by the rights holder and award damages so as to sufficiently compensate for such losses. The Supreme People’s Court proposes to strike a balance between the public interest in economical stability and the private rights of Intellectual property right holders by suggesting that “sufficient compensation” is a viable alternative for injunctive relief.

As the Opinion is newly-issued, its implementation and its impact upon judicial practice in China will need to be further monitored.

最高人民法院于2009年4月21日 发布《关于当前经济形势下知识产权审判服务大局若干问题的意见》(以下简称“意见”)。最高人民法院在该《意见》中首次明确,对于知识产权民事侵权案件,停止侵害不再是必须的救济方式。最高人民法院认为,在一定条件下,可以以合理的赔偿代替停止侵害的诉求。最高院在《意见》中指出,“如果停止有关行为可能造成当事人利益失衡,或有悖社会公共利益,或实际上无法执行,可以根据案件具体情况进行利益衡量,不判决停止有关行为,而采取更充分的赔偿或者经济补偿等替代性措施了断纠纷”。