Preliminary Injunction Over Copyright
Many legal systems recognize three types of injunctions. A permanent injunction is issued after a trial on the merits, serving as part or all of the remedy in the final judgment. A temporary restraining order (TRO) is a short-term order granted at the beginning of litigation to maintain the status quo and protect the applicant from irreparable harm. A TRO can be issued without notifying the affected party and typically lasts until a hearing can be scheduled for a preliminary injunction. A preliminary injunction, granted early in the legal process, is temporary and aims to safeguard the applicant from irreparable harm until a final order settles the parties' rights. When considering a request for a preliminary injunction, a party should explore alternative remedies provided by state laws, such as replevin, attachment, garnishment, or the appointment of a receiver. Some state franchising-related statutes may offer administrative relief. Additionally, a plaintiff with a strong case might choose to forego provisional relief altogether.
To secure a preliminary injunction, two foundational prerequisites must be met. Firstly, the court must have the authority to establish personal jurisdiction over the involved parties. If initiating the lawsuit in a preferred court could potentially lead to a jurisdictional dispute, opting to file elsewhere may be advisable to sidestep delays that could impede the issuance of the injunction. Secondly, the applicant should promptly seek preliminary relief without substantial delays. The primary objective of a preliminary injunction is to prevent irreparable harm to the applicant, and any undue delay may cast doubt on the urgency of such relief. Commencing the lawsuit promptly and submitting the motion for a preliminary injunction concurrently with the complaint or as soon as feasible is essential.
To comply with WTO obligations, China incorporated provisions related to Preliminary Injunctions (PI) into the Patent Act, Trademark Act, and Copyright Act. This was done by drawing inspiration from Article 50 of the TRIPs Agreement, enabling courts to issue pre-suit PIs that restrain parties from engaging in specific actions. This measure allows the suspension of intellectual property rights infringement before formal legal proceedings. Subsequently, the Supreme People's Court issued two judicial interpretations addressing patent and trademark infringement cases.
The current use of Preliminary Injunctions (PI) in judicial proceedings predominantly focuses on disputes related to intellectual property rights infringement, contracts, and unfair competition. The recent amendment in Article 1 of the new Provisions has broadened the application of PI to encompass all cases arising from intellectual property rights disputes, including anti-monopoly disputes. However, the specific conditions outlined in the provisions still target the types of cases commonly seen in judicial practice, lacking specific guidelines for monopoly disputes. The application of PI in anti-monopoly cases remains unexplored in specific instances, leading to cautious implementation in judicial practice compared to disputes involving intellectual property rights and contracts. The controversy during the Provisions' promulgation has contributed to a more careful approach to applying anti-monopoly provisions in legal proceedings.
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?Yang Jiang v Zhongmao Shengjia International Auction Co. Ltd.
In the legal matter of Yang Jiang v. Zhongmao Shengjia International Auction Co. Ltd., a significant development occurred in May 2013 when the court granted a preliminary injunction against Zhongmao Shengjia, preventing the scheduled auction on June 21, 2013. This legal intervention stemmed from Mr. Li Guoqiang's decision to commission Zhongmao Shengjia to auction letters exchanged over several decades between Prof. Qian Zhongshu, Prof. Yang Jiang, and their deceased daughter Qian Yuan. Prof. Yang, a renowned Chinese playwright and author and the widow of Prof. Qian Zhongshu, expressed deep emotional distress and concerns regarding potential copyright infringement. As the rightful copyright owner, she was apprehensive about the public exposure of these private letters during the planned auction, leading her to seek a preliminary injunction. The primary objective of the injunction was to safeguard her copyright, particularly emphasizing the right to control the publication of these intensely personal and sentimental letters. ?This case not only highlighted the intricate interplay between emotional harm and intellectual property rights within the legal context but also show the very first ?preliminary injunction on IP law in China.
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