Abstract：Conventionally,intellectual property rights (IPR) are regarded as″property″and injunctive relief is required as automatical when infringement occurs,just like trespass upon property . This approach,however,would make intellectual property rights disproportionally strong and remedies improperly rigid .While intellectual property rights are absolute and can be asserted against anyone in the world,infringement does not happen in this highly generalized way .Rather,IPR infringement involves the interests of the IPR holder,the infringer,third parties and the public .When formulating remedies for IPR infringement,it is not always a good idea to permit injunctive relief regardless of the interests other than those of the IPR holder .In fact,injunctive relief is not the only and sole remedy for trespass upon real property .It should be noted that the creation of a right is distinct from the provision of remedies for violations of that right .When considering injunctive relief,courts should weigh all material interests with a view to remedying the legal order harmed by the infringement .Where courts lose sight of the big picture and allow permanent injunctions mechanically,IPR enforcement runs the risk of unmooring from the genius of IPR laws . The denial of injunctive relief,unlike compulsory licensing,statutory licensing and exceptions to IPRs,is not equal to confining the IPR involved .This relief should be denied where the enforcement would cause the infringer or the public to suffer harm disproportional to possible benefits to the right holder .In those cases,pecuniary damages along with corrective measures can be sufficient to remedy the IPR infringed .In this event,the interests of the IPR involved is not confined but fully recognized .Only the way to make it whole again is changed,not through injunctive relief,but through creative measures . Under the Chinese legal system,IPRs are not subsumed to the property paradigm .Statutorily speaking,courts are not required to allow injunctive relief when copyright,patent or trademark is infringed .Article 118 of the General Principles of Civil Law of P .R .China explicitly provides that the right holders″may″ask for injunctive relief .The Chinese Copyright Law,Patent Law and Trademark Law do not counteract this general principle . This does not mean,however,that there are no rules of law for courts to look at in considering denial of injunctive relief .Where infringement occurs,the infringer has obligations to the IPR holder,including the obligation to desist from infringement .Injunctive relief is the IPR holder's right to ask the court to enforce obligations arising from IPR infringement .In denying injunctive relief,courts should look at the rules of law under the General Principles of Civil Law (GPCL),Tort Liabilities Law (TLL) and Contract Law (CL) which apply generally to performance of obligations .Specifically,Art .4 GPCL provides that excise of rights should be in good faith and Art .7 GPCL forbids any excise of rights that would harm public interest or interfere with general economic order .Moreover,Art .110 CL permits exemption from specific performance of non-pecuniary obligations under the following circumstances : (1) performance is impossible de jure or de facto;(2) the obligation is unsuited for specific performance or the cost of specific performance is excessive;(3) the obligee fails to request specific performance within a reasonable period of time . In practice,Chinese courts do deny injunctive relief in special IPR infringement cases .While they did not explicitly cite those legal provisions mentioned above,case studies show that their legal reasoning can be subsumed to those statutes .Furthermore,in those cases,Chinese courts awarded ongoing royalties in combination with corrective measures in order to remedy the infringed rights vigorously,following the genius of Art .107 CL,which aims to make contract obligation whole upon breaching . Therefore,it is fair to conclude that the general rules of law applicable to performance of obligations in Chinese civil laws should serve as the principles for denying injunctive relief for IPR infringement . Where the relief is denied,damages and corrective measures should be awarded to adequately remedy the IPR infringed .
何怀文 陈如文. 我国知识产权停止侵害请求权限制的法律原则[J]. 浙江大学学报(人文社会科学版), 2015, 1(2): 133-150.
He Huaiwen Chen Ruwen. Principles for Limiting Injunctive Relief for Infringement on Intellectual Property under Chinese Laws. JOURNAL OF ZHEJIANG UNIVERSITY, 2015, 1(2): 133-150.
