Supreme People’s Court Opinions Concerning Some Issues in Fully Giving Rein to the Function of Intellectual Property Rights Adjudication in Promoting the Grand Development and Grand Flourishing of Socialist Culture and Stimulating the Indigenous Economy and Coordinated Development

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FF No. (2011)18


16 December 2011


In order to deeply implement the spirit of the 6th Plenum of the 17th Party Congress and the Central Economic Work Meeting, and the requirements of the “12th Five-Year Plan” outline, fully give rein to the function of intellectual property rights adjudication in promoting the grand flourishing and grand development of Socialist culture and stimulate the accelerated transformation of economic development methods and the economy’s indigenous and coordinated development, the following opinions are put forward concerning related issues:

I, Liberating thoughts, a dynamic judiciary, realistically strengthening a sense of responsibility and a sense of mission in providing judicial intellectual property rights guarantees

1, Raising understanding, realistically strengthening the vigour and initiative for the grand flourishing and grand development of Socialist culture and stimulating the economy’s indigenous and coordinated development. The “Central Committee of the Chinese Communist Party Decision Concerning Deepening Cultural Structural Reform“ passed by the 6th Plenum of the 17th Party Congress has determined the Socialist development path with Chinese characteristics, firmly established the strategic objectives in establishing a strong Socialist culture country, has put forward the guiding ideology, objectives and tasks, important principles and main policies to promote cultural reform and development under new circumstances, and is a programmatic document in guiding our country’s Socialist culture construction in the present and future. The “12th Five-Year Plan” outline for national economic and social development has made clear that in the next five years, all work matters in our country must have scientific development as the main theme, have transforming economic development methods as main thread; persisting in having the strategic adjustment of economic structures as the direction of the main attack, having scientific progress and innovation as important support. The Central Economic Work Conference requires that we must firmly grasp this solid basis for developing the real economy, strive to create a social atmosphere encouraging being earnest and down-to earth, being industrious and enterprising, making industry and commerce grow rich; firmly grasping this strong driver for accelerating reform and innovation, grasping the opportune moment to make breakthroughs in a number of focus areas and key segments as soon as possible, putting forth effort to raise original innovation capacity, incessantly strengthening integrated innovation, introduction, absorbing, assimilation and reinnovation capacity; persisting in innovation drive, strengthening intellectual property rights protection; fostering the development of strategic burgeoning industries, stressing the promotion of major technology breakthroughs; stressing strengthening core competitiveness; accelerating the expansion of cultural industries, promoting the flourishing and development of cultural undertakings. Cultural development, scientific and technological progress and knowledge innovation, are the basic drivers for promoting the transformation of economic development methods and the economy’s indigenous coordinated development. Intellectual property rights protection is closely related to stimulating cultural development and flourishing, and the economy’s indigenous coordinated development. All levels’ courts and the broad intellectual property rights judges must fully and clearly understand the situation, realistically strengthen their consciousness of the larger picture and a sense of responsibility, persist in a dynamic judiciary, search for points to unite and points to direct efforts, and, during judicial intellectual property rights protection, stress encouraging of cultural development and scientific and technological progress even more , stress moving cultural innovation forward and developing new sorts of culture business models even more, stress promoting intellectual property rights culture development and flourishing even more, stress giving rein to the stimulating and guiding function of intellectual property rights in the real economy even more, stress fostering and developing strategic burgeoning industries and promoting the strategic adjustment of economic structures even more, stress raising our country’s comprehensive national strength and international competitiveness even more, and give rain to a constructive and guaranteeing function in promoting the grand development and grand flourishing of Socialist culture, and the economy’s indigenous and coordinated development.


2, Renewing concepts, realistically strengthening and serving the focalization and effectiveness of the grand flourishing and grand development of Socialist culture and the economy’s indigenous and coordinated development. It is necessary to strengthen and reinforce the concept of protection, fully understand the important contradictions, basic position and policy orientation that strengthening protection brings in judicial intellectual property rights protection at present, making good overall planning of both the large international and domestic pictures, using intellectual property rights laws sufficiently and well, strengthening all kinds of judicial intellectual property rights protection, realistically reducing the costs of rights defence and expanding punishment strength. It is necessary to strengthen concepts of classification and appropriate leniency or severity, pay attention to the properties and special characteristics of all sorts of intellectual property rights in judicial intellectual property rights protection, conform to the function and protection requirements of all different kinds of intellectual property rights, making judicial intellectual property rights protection even more adapted to the international and domestic development environment in which our country finds itself, conforming even more to the characteristics or our country’s new economic and social cultural development phase, conforming even more to the new requirements of our country’s cultural development and scientific and technological innovation. It is necessary to strengthen concepts of balancing interests, making balancing interests into an important starting point for judicial intellectual property rights protection, making overall planning including the interests of intelligence and creators, commercial users and the social public, coordinating well the relationships between encouraging innovation, stimulating industrial development and guaranteeing basic cultural rights and interests, making all sides jointly benefit from interests, and balancing development. It is necessary to strengthen the concept of the correct first judgment, and give high regard to raising the level of correctness of first instance trials, making the parties achieve judicial fairness early, raising judicial effectiveness and reducing the rate of appeals, stimulating social harmony and stability.


3, Giving rein to superiority, further strengthening the lead of the judiciary in protecting intellectual property rights. Continuing to deeply implement the concepts and objectives in the National Intellectual Property Strategy on giving rein to the leading function of the judiciary in protecting intellectual property rights, strengthening the firmness and consciousness concerning the implementation of these strategic objectives, guaranteeing the scientific nature and accuracy of implementation. It is necessary to adapt to the new requirements and new circumstances after the shaping of a Socialist legal system with Chinese characteristics, giving even more regard to judicial intellectual property rights protection, guaranteeing the implementation of intellectual property rights laws, carrying forward the concept of the Socialist rule of law. It is necessary to give even more regard to the stability and predictability of intellectual property rights law application, giving high importance to procedural guarantees and process transparency, and give high regard to the demonstration function of earlier model cases, to the larges extent providing the interested parties with stable and predictable expectations, to the largest extent letting them avoid the worry that the judicial standards to which they are subject are not uniform, vigorously create desirable legal environments, investment environments and market environments. It is necessary to give even higher regard to long-term protection mechanisms, give high regard to law enforcement pervaded by one unity, give high regard to creating a sort of persevering long-term protection mechanism, avoiding transformation for a short period of time to the point that it damage the long-term enforcement of the law. It is necessary to give even higher regard to equal protection, give high protection to the integral enforcement of intellectual property rights laws, determinedly restraining local protectionism. It is necessary to give even more regard to guiding and orienting function of arbiters, giving high regard to carrying forward the Socialist core value system during arbitration, paying attention to the organic integration of legal appraisal and moral appraisal, guiding mainstream social value systems, making safeguarding public morals to be an important pursuit of values in judicial protection, raising society’s intellectual property rights legal system culture that respects culture, venerates innovation, with sincerity, honesty and that abides the law.


II, Strengthening the trial of intellectual property rights cases involving culture, stimulating cultural innovation and fostering new cultural business models, vigorously promoting the grand development and grand flourishing of Socialist cultures


4, Giving high regard to the trial of intellectual property rights cases involving culture, strengthening the protection of cultural intellectual property rights according to the law. Our country has already shaped a cultural legal system with laws and regulations such as the Copyright Law, Intangible Cultural Heritage Law, Compute Software Protection Regulations, the Information Network Dissemination Rights Protection Regulations, etc., as backbone, the trial of intellectual property rights cases involving culture has already become an important aspect in intellectual property rights adjudication. It is necessary to earnestly implement the Central Committee policy measures concerning forcefully developing public interest-type cultural undertakings, and accelerating the development of cultural industries, formulate and perfect relevant judicial interpretations and judicial policies, give high regard to trial work involving culture, fully give rein to the demonstration, guiding, stimulating and guaranteeing functions of intellectual property rights adjudication in cultural construction, encouraging the entire national cultural creation vitality to continue to burst forth, enriching the people’s social and cultural life, guaranteeing the people’s basic cultural rights and interests, promoting leapfrogging development in the cultural industries, raising our country’s comprehensive cultural strength and international competitiveness. It is necessary to give high regard to the protection of new kinds of intellectual property rights involving the cultural industries, vigorously promoting cultural industry development to become a pillar industry in the national economy. Especially strengthening copyright protection in industries and areas such as publishing and distribution, film and television production, advertising, performance, entertainment, design, etc., promoting the development and expansion of traditional cultural industries. Deeply researching and forcefully strengthening copyright protection for strategic burgeoning cultural industries such as cultural creation, digital publishing, mobile multimedia, cartoon games, software, databases, etc., fostering new cultural business models, expanding cultural industry development into new areas, fostering new growth points for the national economy, raising our country’s comprehensive cultural strength and competitiveness. Closely following new problems brought on by information technology development such as the “three-network” integration of telecommunications networks, radio and television networks, the Internet, etc., and at the same time as protecting authors’ rights and interests, following the development of stimulating burgeoning industries, stimulating the rise of our country’s informatization levels.


5, Expanding protection of the rights and interests of cultural creators, guaranteeing that cultural creation resources fully gush out. It is necessary to appropriately deal with the relationship between a work’s originality and a level of originality, both safeguarding the uniformity of basic standards for copyright protection of works, and pay attention to grasping the characteristics of all kinds of works and adapt to the special requirements corresponding to the area of protection, making protection strength and level of originality mutually coordinated. It is necessary to appropriately apply general provisions in the Copyright Law concerning copyright, to timely protect new rights and interests of creators. Appropriately dealing with the relationship between the works of individuals, job-related works, and works of legal persons, both protecting the rights and interests of authors to the largest extent and encouraging the vigour of creation, and protecting the lawful rights and interests of legal persons or other organizations according to the law. Appropriately utilizing the legal difference between idea and expression, paying attention to the relative difference of ideas and expressions, reasonably defining the scope for protection of works. Giving high regards to protection of disseminators’ rights and interests, fully protecting the lawful rights and interests of publishers, performers, record or video producers, radio stations and television stations, stimulating the dissemination and utilization of works. Vigorously exploring legal protection involving rights and interests concerning comprehensive arts and entertainment soirées, sports programmes, etc., reasonably balancing the interests of corresponding parties.


6, Strengthening copyright protection in a network environment, appropriately dealing with the relationship between protecting copyright and stimulating information network industry development and guaranteeing information dissemination. It is necessary to correctly grasp the spiritual essence of laws, administrative regulations and judicial interpretations relating to copyright protection in a network environment, it is especially necessary to correctly grasp balancing between the interests of rights holders, network service providers and the social public, it is necessary to both strengthen copyright protection in a network environment, and to pay attention to stimulating information network technology innovation and commercial model development, guaranteeing the interests of the social public. Correctly grasping the division between works, performances, audio and video product supply activities and network service supply activities, appropriately dealing with the relationship between exceptions and liabilities of relevant network service providers, “notice and takedown” roles and fault liability, and the difference between network service providers infringement fault and common infringement fault. For all network service provision activities conforming to statutory exemption conditions, network service providers do not bear responsibility for compensating infringement; where, even though the statutory conditions for exemption are not completely fulfilled, but the network service provider has not committed a fault, he does not bear responsibility for compensating infringement. It is necessary to correctly grasp the definition of infringement with fault for network service providers, on the basis of the characteristics and reality of the information network environment, it is necessary to both establish fault according to the fault standards for clear infringing facts, and not make network service providers bear general advance examination duties or a relatively high duty of care, and to suitably muster the vigour of network providers in actively preventing infringement and to cooperate with rights holders in preventing infringement. It is necessary to safeguard the basic value of “notice and takedown” rules, and apart from circumstances in which clear facts of infringement are able to establish that the network service provider clearly know or should have clearly known of them, “notice and takedown” rules shall be applied first as presuppositions in investigating the infringement compensation liability of network service providers, it is necessary to both prevent lowering the fault establishment standards for network service providers and make “notice and takedown” rules into empty vessels; and to prevent that network service providers are passive and slack against third parties using their network service for infringement, and abuse the “notice and takedown” rules.


7, Appropriately dealing with the relationship between technology neutrality and the establishment of infringement activity, realizing the harmonization and unification of effectively protecting copyright and stimulating technological innovation and industrial development. It is necessary to both correctly grasp the value neutrality and multi-use nature that technology has as tools and methods, and to fully understand the activities and goals of technology providers that technology reflects and embodies. We can neither have the responsibility for the consequence of infringement brought on by technology fall on the technology provider unconditionally, suffocating technological innovation and development; we can also not make technology neutrality absolute, and simply make technology neutrality into an inappropriate pretext for avoiding infringement liability. Concerning technology having substantive non-infringing commercial use, strictly grasping the conditions under which the technology provider bears joint liability, where it cannot be inferred that technology providers clearly knew of the existence of concrete acts of direct infringement, he will only bear joint liability together with the direct infringe under the condition that there are other acts of assistance or abetting; concerning technology that is mainly used to infringe copyright and has no other substantive commercial use, it may be inferred that technology providers clearly know the existence of concrete acts of direct infringement, and shall bear joint liability together with the direct infringer. When trying copyright cases involving network copyright or burgeoning industries such as “three-network integration”, etc., it is especially necessary to grasp the spirit of technology neutrality, both benefiting the stimulation of scientific, technological and commercial innovation, and preventing the committing of infringing acts in the name of technology neutrality.


8, Appropriately utilizing the provisions on limitations and exceptions in copyright, correctly judging the lawfulness of defendants’ infringing activities, stimulating commercial and technological innovation, fully guaranteeing the people’s basic cultural rights and interests. Correctly establishing fair use and statutory licensing activities, protecting the proper use and dissemination of works according to the law. Under the special circumstances of the necessity to stimulating technological innovation and commercial development, considering factors such as the nature and objective of the activity in which the work is used, the nature of the used work, the quality and quality of the used part, the influence of the use on the potential market or value of the work, etc., if the act of use does not conflicts with the regular use of the work, and also is unlikely to result in unreasonable damage to the proper rights and interests of the author, it may be established as reasonable use. Where a copy, drawing, photo or video recording is made of art works set up or displayed outdoors in social public spaces, and reuse is made of the results thereof in a reasonable manner and scope, regardless of whether or not that act of use has a commercial goal, it shall always be established as reasonable use.


9, Comprehensively utilizing many kinds of legal methods to vigorously promote the protection, inheriting, exploitation and use of intangible cultural heritage, stimulating our country’s rich cultural resources to transform into strong cultural competitive strength. Intangible cultural heritage is an important basis and link for concentrating the nation’s spirit, inheriting the nation’s culture, safeguarding cultural diversity, stimulating social harmony and sustainable development, and is an important source for cultural innovation. In line with the principles of merging inheriting with innovation, protection and use, according to the spirit of present laws and legislation, vigorously protecting intangible cultural heritage such as folk literature and art, traditional knowledge, hereditary resources, etc., fairly and reasonably coordinating and balancing the relationship between the interests of all sides and parties in the process of excavation, arrangement, inheriting, protection, exploitation and use. Persisting in the principle of respect, when using intangible cultural heritage, its form and content shall be respected, and intangible cultural heritage may not be used in distorting or criticizing ways. Persisting in the principle of disclosing the source, when using intangible cultural heritage the sources of the information shall be explained in an appropriate manner. Encouraging informed consent and benefit sharing, intangible cultural heritage users shall as far as possible obtain the informed consent of preservers, providers, possessors or related protecting entities, and share the benefits from use with them in an appropriate manner. Comprehensively utilizing many kinds of methods such as copyright law, trademark law, patent law, anti-unfair competition law, etc., to vigorously protect the inheriting, commercial exploitation and use of intangible cultural heritage.


10, Fully utilizing copyright protection methods to protect folk literature and art works according to the law. Folk literature and art works copyright protection must benefit the inheriting of folk literature and art, and give rein to its function in concentrating the nation’s spirit and bring together a national spirit garden, and must benefit innovation and use, raising the influence of Chinese culture. Copyright over folk literature and art works may be shared by the specific ethnicity producing and inheriting those works or the local community, the government departments corresponding to that specific ethnicity or locality has the right to represent them in exercising rights protection. Concerning the preservers and arrangers of folk literature and art works, their right of paternity shall be respected in an appropriate manner. Using folk literature and art elements or source materials to conduct successive creation, regardless of obtaining permission or paying costs; where a n original work is shaped, the author may obtain complete copyright protection according to the law, but shall indicate the source of the materials for the work. Where inappropriate use of folk literature and art works creates damage to the moral rights and interests of the specific ethnicity or local community, the People’s Courts may order the inappropriate user to bear corresponding civil liability.


11, Effectively using legal methods such as trademark law, patent law, etc., to protect the commercial value of intangible cultural heritage, stimulating the superiority of natural or human resources having local characteristics to transform into real productive capacity. Letting intangible cultural heritage names, symbols, etc., apply for trademark registrations, where inappropriate acts of use constitute distortion, criticism, misleading, etc., of intangible cultural heritage, damaging the moral rights and interests of the specific ethnicity or local community, or where it is established that there are other harmful influences, it is prohibited to use them as trademarks; where they are already used and bring about harmful influence, the People’s Courts may, according to the concrete circumstances of the case, judge that the user bears civil liability for ceasing the use, making a formal apology, eliminating the influence, etc. Where the name, symbols, etc., of intangible cultural heritage constitutes a geographical indication, it may act as a former right granting protection, taking consideration of the concrete situation. Where traditional knowledge and hereditary resources in intangible cultural heritage constitute commercial secrets, it is prohibited for other persons to steal, illegally disclose and use them. Patent holders that have gained or used hereditary resources in violation of the provisions of laws and regulations, completed inventions or creation relying on those hereditary resources and obtained patent licensing, where they accuse other persons of infringing his patent, it is permitted to not grant support.


III, Expanding science and technology achievement protection strength, promoting scientific and technological progress and innovation, raising indigenous innovation capacity

12, Strengthening the intellectual property rights protection for science and technology categories such as patents, new plant varieties, integrated circuit diagrams and designs, etc., according to the law, vigorously promoting scientific and technological progress and innovation. According to the new tendencies of scientific and technological progress and the new requirements for economic developments, with raising our country’s primary innovation capacity and strengthening integrated innovation, introduction, absorbing, assimilation and re-innovation capacity as important objectives, correctly implementing the legislation spirit of patent law and correctly conducting infringement judgements, strengthening intellectual property rights protection for key core technologies, basic forward position areas and strategic burgeoning industries, promoting technological breakthroughs and technological innovation, moving traditional industry optimization and upgrading forward, accelerating the fostering and development of strategic burgeoning industries, accelerating the shaping of front running and pillar industries, strengthening enterprise and national core competitiveness. Expanding intellectual property rights protection strength for science and technology categories relating to the cultural area, giving rein to the driving function of scientific and technological innovation in cultural development, promoting the raising of cultural industry technology equipment levels, strengthening the cultural industries’ core competitiveness, promoting Chinese culture to march towards the world.


13, Correctly grasping judicial policies on appropriate leniency and severity in patent rights protection, forcefully raising indigenous innovation capacity. When determining the concrete patent rights protection scope and strength, it is necessary to appropriately consider the characteristics and innovation reality of patent rights in different technology areas, conform to the innovation requirements, innovation characteristics and development reality in different technology areas. Persisting in the principle that the explanation of the scope of invention and utility model patent rights takes the middle road, correctly defining the protection scope of patent rights. Giving high regard to the limiting function of patents’ invention objective in the patent rights protection scope, shortcomings or inadequacies in present technology to be overcome by patents should not be brought into the scope of protection. Original inventions with a high level of innovation, large research and development input, that have a breakthrough and driving function in economic growth, shall be granted relatively high protection strength and relatively broad equivalent protection scope correspondingly; the equivalent protection scope of improving inventions of which the innovative level is relatively low will be appropriately limited.


14, Correctly utilizing patent infringement judgement methods, expanding restraining strength against patent infringement acts. Correctly grasping judgement rules such as the overall technological characteristics and contrasts, the prohibition of coming back on promises, contributions, etc., in invention and utility model patent infringement judgements, continuing to explore and perfect equivalent infringement application conditions. Equivalent infringement shall have the basic similarity of methods, functions and effects, and the evidence to the normal technical person skilled in the field as essential conditions, preventing simple mechanistic application of equivalent infringement or inappropriate expansion of its scope of application. The defence rule of presently known technology may be applied both in equivalent infringement and literal infringement. Correctly grasping the judgement methods of comprehensive inspection of design characteristics and comprehensive judgement of overall look, feel and effect in external design patent infringement judgements, taking the normal consumer of the designed product as determining subject, taking the differentiating design characteristics of the external design as the core, taking the similarity or closeness to the overall look, feel and effect of the product’s appearance and design as a basic standards to establish a judgement of infringement. Correctly utilizing the present technology and design defence, where the alleged infringer maintains a present technology or present design defence with a present technology plan or a present design recorded in the literature composed of evident public knowledge or customary design, it shall be granted support. Where the alleged infringer maintains that it does not constitute patent infringement to use technology plans of exterior designs in implemented conflicting applications, it may be judged upon with reference to the examination and judgement standards for the present technology or present design defence.


15, Appropriately hearing product manufacturing method invention patent infringement cases, protecting method invention patent rights according to the law. At the same time as appropriately considering the real difficulties of rights protection for method patent rights holders, also protecting the lawful rights and interests concerning commercial secrets of the alleged infringer. Reversing the burden of proof of to suit new product manufacturing methods according to the law, where the products achieved by the application of patented methods as well as the technological plans used to produce that product were not openly known to the public before the patent application date, the alleged infringer producing corresponding products shall bear the burden of proof that his product manufacturing method is not similar to the patented method. Where the products achieved by applying a patented method are not new products, the patent holder is able to demonstrate that the alleged infringer has produced similar products, and it is impossible to prove with reasonable efforts that the alleged infringer has really applied a patented method, but according to the concrete circumstances of the case, integrating the already known facts as well as daily life experience, it possible to establish that the probability that the similar products are produced with a patented method is very large, it is permitted to not further require the patent holder to provide further evidence, according to the relevant provisions of judicial interpretations on civil procedure and evidence, and the alleged infringer will provide evidence that his manufacturing methods are not similar to the patent method. It is necessary to counter the reality of the difficulties of method patent infringement evidence, adopt evidence preservation measures according to the law, and appropriately lighten the evidentiary burden of method patent holders. It is necessary to pay attention to protecting the rights and interests of applicants, prevent the parties from abusing the evidence preservation system to illegally obtain other persons’ commercial secrets. Where evidence provided by the alleged infringer that his manufacturing methods are not similar to patented methods involve commercial secrets, attention shall be paid to adopt protective measures during investigation and trial.


16, Appropriately dealing with the relationship of protecting patent rights and preventing rights abuse, controlling abuse of patent rights and abuse of pre-trial injunction systems according to the law. At the same time as protecting patent rights and guaranteeing the right to sue of parties according to the law, paying attention to prevent that patent holders clearly violate the objectives of the law in exercising their rights, and improperly damage competitors, hampering fair competition and disrupting market order. Where he clearly knows that his patent rights involve existing technology or existing designs, but still maliciously issues infringement warnings to proper users or their trading partners, or abuses the right to sue, and it constitutes an infringement, requests for damages and compensation from the damaged party may be supported, taking circumstances into regard. Relatively strictly grasping legal conditions, strengthening order guarantee, cautiously adopting pre-trial measures to cease patent infringement according to the law. Persisting in making the relative clarity of the facts and the ease to determine infringement as prerequisite conditions for adopting pre-trial measures to cease patent infringement. For acts that require that relatively complicated technology comparison to be conducted before it is possible to judge the probability of infringement, it should not be ruled that the instruction of pre-trial cessation of infringement should be adopted. Under circumstances where the conditions permit, an accurate judgement concerning the probability of infringement are to be made through the method of hearing the applicant and the respondent as far as possible. Where it is declared that a decision concerning the request for invalidity has been made, and the patent at issue is invalid, pre-trial cessation of patent right infringement may generally not be adopted.


17, Strengthening the protection for new plant variety rights, moving agricultural science and technology innovation forward, stimulating the acceleration and transformation of agricultural development methods. Expanding protection strength for major agricultural science and technology achievements and new plant varieties having intellectual property rights, stimulating the raising of indigenous innovation capacity, moving forward agricultural science and technology progress, raising comprehensive agricultural production capacity, anti-risk capacity and market competitiveness. Strictly guaranteeing the rights and interests of variety rights holders according to the law, forcefully stimulating the fostering of varieties and the transformation of innovative achievements, developing modern agriculture. Expanding attack strength against new plant variety infringement acts, it is necessary to timely stop infringing activities such as production with commercial aims, selling or re-using breeding materials of licensed varieties; acts of passing off other persons’ licensed plant varieties shall be handled as new plant variety infringement disputes. Examining variety rights holders’ evidence preservation applications according to the law, guaranteeing that the variety rights holder obtains judicial relief timely. Concerning evidence preservation steps adapted against alleged infringers of breeding material, corresponding technological regulations shall be followed as much as possible, guaranteeing the objectivity and representativeness of samples, but the effect of the evidence preservation may not be simply denied on the basis of not having invited corresponding technology experts to assist in the samples. Paying attention to protecting the lawful rights and interests of peasants according to the law, safeguarding agricultural and rural stability. Correctly dividing the large seed producing and managing companies from normal individuals and rural contracting businesses for whom growing plants is the livelihood, we must both prevent infringement liability for normal individuals and rural contracting businesses for whom growing plants is the livelihood who by themselves breed and use breeding materials for licences plants, and must prevent that large companies that essentially produce and manage seed evade legal sanctions.


IV, Strengthening trademark right protection, fostering and safeguarding famous brands, vigorously promoting the Socialist market economy’s competitive, innovative and inclusive growth


18, Strengthening trademark protection according to the law. The protection of trademark rights must benefit encouraging competition, benefit the distinction between commercial symbols, benefit resisting malicious acts of squatting other persons’ famous brands and “semi-brands”, benefit the provision of a harmonious and comfortable legal environment for famous brand innovation and development, providing assistance to fostering famous brands and raising enterprises’ overall competitiveness, promoting the accelerated transformation of our country from a large production country to a strong brand country. it is necessary to, on the basis of a trademark’s renown and level of distinction, appropriately utilize measurable legal standards such as trademark similarity, commercial categories, former use,, as well as trademarks having a certain influence, obtaining trademark registration though fraud or other improper methods, etc., appropriately grasping whether a trademark registration applicant or registrant has a true intent of use or not, as well as integrating subjectivity or maliciousness of “semi-brand” activities in trademark application, etc., using relevant provisions of trademark law fully and well, expanding strength to restrain improper acts such as malicious squatting, “semi-brand”, etc., fully reflecting the legal orientation of trademark rights protection.


19, Appropriately dealing with the relationship of trademark similarity and similarity of elements composing trademarks, correctly grasping the legal scale of establishing trademark similarity. Establishing whether or not trademark similarity is constituted, must be based on the concrete circumstances of the case. Under usual circumstances, where the composing elements corresponding to the trademark constitute similarity in the whole, trademark similarity may be established. Where the composing elements of the trademark are not similar in the whole, but it is maintained that the renown of the trademark at issue is higher than the trademark of the alleged infringer, a comparison of the main parts may be adopted to decide whether or not there is similarity. It is necessary to appropriately deal with the relationship of clearly distinguishing the boundaries between commercial symbols and permitting the appropriate coexistence of trademarks with similar composing elements under special circumstances. When relevant trademarks all have relatively high renown, or the coexistence of relevant trademarks has been formed under special circumstances, establishment of trademark similarity shall also be based on a judgement integrating factors such as the real use situation of both parties, the history of use, the state of recognition of the corresponding public, the subjective state of the users, etc., paying attention to respecting market structures that have already objectively formed, stopping to simply equate similarity of composing elements of trademarks with trademark similarity, realizing the inclusive development between operators.


20, Fully considering the associativity of products using trademarks, correctly grasping establishment standards for product similarity. To establish product similarity, the similar product differentiation form may be consulted, but the market reality shall be respected more. It is necessary to take the general recognition of the corresponding public as standard, and integrate factors such as the product’s function, use, producing entity, selling channel, consumption target, etc., to correctly establish product similarity in the sense of trademark law. Where it is maintained that the trademark at issue is already being used in reality hand has a certain renown, the associativity between the products must be fully considered to establish product similarity. Products of which the corresponding believe that specific associativity exists based on the general recognition of the product and the general understanding of its trade, may be brought into the scope of product similarity, taking circumstances into regard.


21, Standardizing the establishment and protection of famous trademarks, realistically strengthening famous trademarks protection. The objective of protecting famous trademarks lies in appropriately expanding the protection scope and protection strength of trademarks with a relatively high level of fame, and is not a judgement or the award of a honorary title. In all cases where parties maintain that famous trademark protection conforms to the conditions for protections and is really necessary, it shall be granted establishment and protection according to the law. For famous brands of which the normal public has extensive knowledge, the famous facts that are broadly known to the public must be integrated, lowering the burden of proof on the trademark holder concerning the famous trademark situation. Establishment of a famous trademark does not require, however, that there is an equal or uniform level of fame, but the scope and strength of the famous trademark must correspond to its distinctiveness and renown, for famous brands with strong distinctiveness and a high level of renown, a broader scope of protection that crosses protection categories and stronger protection strength must be granted. It is necessary to earnestly implement the provisions of judicial interpretations, correctly grasp the protection scope of famous trademarks, strengthen strict gate keeping over establishing the real facts about famous trademarks, persist in the system of examination and verification before trial, prevent the parties’ committing frauds, or conducting false lawsuits to defraud the establishment of famous trademarks.


22, Appropriately establishing trademark infringement defences, safeguarding the lawful rights and interests of legitimate business operators. Trademark infringement acts shall have similar use in the sense of commercial symbols or trademark similarity as conditions, the where the alleged infringer reasonably and in good faith uses similar or identical symbols to describe or explain the characteristics of his products or services, it may be considered as proper use according to the law. Where the trademark registered by the trademark registering person duplicates, imitates or translates the famous trademark of another person that is not yet registered in China, or trademarks of squatting agents or representatives or squatting trademarks of other persons that already have a certain influence with improper means are at issue, and the alleged infringer who used the trademark earlier puts forward a defence with this as grounds, support shall be granted.


23, Appropriately dealing with the relationship between facts and procedure, strengthening the substantive resolution of trademark licensing disputes. Procedure has its independent legal value, and must also have the resolution of the substantive issue and substantive justice as orientation and final objective. Substantive justice is the objective and orientation of procedural moves, and must be support and guarantee for procedural fairness. It is necessary both to give high regard to procedural fairness, and prevent ignoring procedural fairness in the one-sided pursuit of substantive justice, and to rely on substantive justice, and prevent mechanistic adjudication. Where the parties possibly influence each others major substantive rights and interest because of flaws in exercising procedural rights, and possibly may even lead to the loss of the possibility for relief, and there is no other channel for relief, it is permitted to grant the possibility for remedy on the basis of the concrete circumstances of the case. It is necessary to stress the substantive resolution of trademark authorization disputes, avoid getting bogged down in unnecessary procedural duplication, solving the substantive questions and avoiding contradictions. Where it is possible to make substantive judgements on whether or not the trademark should be granted registration or not, or where they should be cancelled or not, etc., a clear decision may be made in the grounds for judgement, providing clear guidance for the administrative organ at issue to remake a decision.


V, Standardizing competition procedures according to the law, fostering a free and open, honest and law-abiding competitive culture, creating an open and orderly, market environment brimming with vitality


24, Strengthening unfair competition case trial, safeguarding fair market competition. Appropriately dealing with the relationship between specialized intellectual property rights law and anti-unfair competition law, and at the same time as encouraging innovation, it is also necessary to encourage fair competition. Giving rein to the complementary protection function of anti-unfair competition law may not conflict with specialized intellectual property rights laws and policies, in all areas in which specialized intellectual property rights law has been exhaustively provided, anti-unfair competition law will in principle not provided added protection, permitting free use and free competition, but within the scope of compatibility with specialized intellectual property rights legislation and policy, it is still permitted to grant protection from the point of view of stopping unfair competition. Appropriately dealing with the relationship between the principle provisions and the special provisions of anti-unfair competition law, it is necessary to both fully utilize the flexibility and adaptability of principle provisions, effectively ceasing all sorts of constantly changing and incessantly emerging unfair competition acts, and to stop the arbitrariness of the application of principle provisions, avoiding the obstruction of free and fair market competition. Strictly grasping the application conditions of anti-unfair competition law’s principle provisions, all spheres where special provisions of anti-unfair competition law provide for explicit prohibitions, corresponding unfair competition act can be controlled only according to special provisions, in principle, principle provisions should not be applied by expanding their scope of application. For acts which are not prohibited by special provisions of anti-unfair competition law, if damage is caused to the lawful rights and interests of other business operators, the principle of sincerity and honesty and generally acknowledged business ethics are truly violated, and there is impropriety, and not stopping it would be insufficient to safeguard the fair competition order, it is permitted to govern this by applying principle provisions. Correctly grasping the principle of sincerity and honesty, and the judgement standards for business ethics, taking homo economicus ethics standards that are generally identified and accepted in the specific business area as yardstick, avoiding that the principles of sincerity and honesty and generally acknowledged business ethics are simply equated to individual morals or social morals.


25, Strengthening the protection of commercial secrets according to the law, effectively stopping acts infringing commercial secrets, creating a safe and trustworthy legal environment for corporate innovation and investment. According to the concrete situation of the case, reasonably grasping evidentiary standards for confidentiality and improper means, suitably lightening the difficulty to protect the rights of commercial secret rights holders. Where superior evidence of confidentiality has been provided by the rights holder or he fully and reasonably explains or analyses the points of difference between information in the public space and the information he maintains is a commercial secret, it may be established as confidential. Where, on condition that the evidence provided by the commercial secret rights holder proves that the information of the alleged infringer corresponds to the commercial secret or substantively corresponds to commercial that the alleged infringing party came into contact with or illegally obtained, on the basis of the concrete circumstances of the case or the already known facts and daily life experience, the probability of establishing that the alleged infringing party has adopted improper means is relatively high, it may be inferred that the fact is established that the alleged infringing party has adopted improper methods to obtain business secrets, except for cases where the alleged infringing party is able to prove that said information was obtained through lawful methods. Using commercial secret information conforming to legal conditions as a basis according to the law, correctly defining the scope of commercial secret protection, all single commercial secret information units constitute independent protection subjects. Perfecting commercial secret case trial and confrontation methods, it is necessary to try the adoption of measures such only revealing to agents, revealing in stages, signing an affidavit to preserve secrecy, etc., concerning evidence involving commercial secrets, to limit the scope of information and dissemination channels for commercial secrets, preventing them to be leaked a second time during case proceedings. Appropriately dealing with the relationship between civil commercial secret infringement litigation and criminal procedure, both paying attention to the connection between the two sorts of procedure, and paying attention to the their mutual independence, at the same time as protecting commercial secrets according to the law, it is also necessary to prevent operators from maliciously starting criminal procedures to disturb or pressure competitors.


26, Appropriately dealing with the relationship between protecting commercial secrets and the freedom of occupation, non-competition of persons involved with the secret and the reasonable mobility of talent, safeguarding the proper and lawful employment and entrepreneurial rights and interests of workers, stimulating the reasonable mobility of labour forces according to the law. Knowledge, experience and skill mastered by workers during their work, apart from the situation where they are part of the work unit’s business secrets, constitute a component part of their human dignity, and workers have the freedom to use them as they choose after leaving a position. Under the circumstances that it does not violate non-competition obligations, and it does not infringe commercial secrets, where workers knowledge, experience and skills they have learnt in the work unit originally employing them for the service of other work units having a relationship of competition with the original work unit, it should not be simply established that this constitutes improper competition on the basis of non-competition law principles. Appropriately dealing with the relationship between protecting commercial secrets and non-competition agreements, non-competition agreements may take the existence of commercial secrets as a presupposition, but the two have different legal bases and manifestations, violating non-compete obligations is not equal to infringing commercial secrets, the period of non-competition is also not equal to the period of protecting secrets. Plaintiffs filing an infringement suit on the basis of infringement of commercial secrets are not limited by the earlier existence of a non-competition agreements.


27 Strengthening anti-monopoly case trial work, timely and effectively stopping monopolistic acts, strengthening the vitality of the market, stimulating the perfection of market structure and the healthy development of the market economy. It is necessary to strengthen effects and thoughts on anti-monopoly law, completely considering all kinds of corresponding factors, comprehensively assessing the effects hindering competition and stimulating competition of the alleged monopolistic act, establishing monopolistic acts according to the law. Paying attention to giving rein to the function of economic experts and specialist organs, exploring ways and channels to attract economic analysis methods. It is necessary to reasonably divide the burden of proof of the parties in civil monopoly disputes and cases on the basis of the different categories of monopolistic acts. Concerning monopolistic agreements that clearly have the effect of gravely removing or limiting competition, it is permitted to not require the victim to prove that said agreement has the effect of removing or limiting competition; where public utility enterprises as well as other business operators having monopoly business qualifications abuse their dominant market position, it is permitted to suitably reduce the burden of proof of the victim according to the concrete circumstances of the case.


VI, Strengthening intellectual property rights procedure system construction, perfecting trial structures and work mechanisms

28, Deeply grasping the characteristics and rules of intellectual property rights cases, establishing and completing dispute settlement mechanisms adapted to the special characteristics of intellectual property rights cases. Correctly grasping the work principle of “mediating first, integrating trials”. It is necessary to vigorously guide parties into choosing methods such as entrusted mediation, expert mediation or sector mediation to resolve their disputes, according to the characteristic that intellectual property rights cases have a strongly specialized technological nature. Persisting in the principle of voluntary mediation according to the law, it is not permitted to force or drag parties into mediation against their wishes. For cases in which the expectations of parties or concerned sectors with regard to the distinction between right and wrong are high, or in which the requirements regarding clarification of rules are strong, or the level of acceptance of the decision is high, the judicial method is to be chosen as much as possible to resolve the dispute, fully giving rein to the guiding and leading function of judicial judgements. It is necessary to give rein to the function of scientific and technological experts in resolving disputes, and perfect resolution mechanisms for specialized technological issues in intellectual property rights cases.


29, Continuing to perfect intellectual property rights judgement structures and mechanisms, fully giving rein to the overall efficacy of judicial intellectual property rights protection. According to the requirements of the National Intellectual Property Rights Strategy, vigorously moving forward trial work for trying civil, administrative and criminal intellectual property rights cases in concentrated intellectual property rights trial courts, establishing civil, administration and criminal trial and mediation mechanisms for intellectual property rights, unifying judicial standards, giving rein to their overall protection efficacy, striving to establish an intellectual property rights trial structure with optimized resources, scientific operation and high authority. It is necessary to strengthen cooperation and coordination with public security organs, prosecution organs as well as administrative intellectual property rights law enforcement organs, shaping protection strength. Optimizing intellectual property rights case jurisdiction distribution, suitably increasing general intellectual property rights case grass-roots courts, encouraging middle and basic level courts to launch concentrated jurisdiction management across regional boundaries, according to work requirements, reasonably allocating judicial resources.


30, Safeguarding the unity of the legal system, stimulating the unified opening up of the market. Perfecting case jurisdiction management systems, strengthening supervision constraints, suitably adopting methods such as raising jurisdiction to a higher level, appointing jurisdiction to other localities, etc, to effectively restrain the appearance of local protection and departmental protection, guaranteeing that cases are fairly tried. Where it is decided to raise jurisdiction to a higher level or move jurisdiction to another locality, the court with original jurisdiction must deal with this correctly, and timely transfer materials. Realistically strengthening trial supervision, giving rein to the rectifying function of second trials and retrials, preventing that faulty judgements are accommodated with an eye to judicial achievement assessment standards. In cases of which retrial is ordered, the relevant retrying court must correctly understand and earnestly deal with the order for retrial, and correct mistakes according to the law. Where the order for retrial is disregarded, retrial is delayed or the retrial order is not implemented without proper reason, discipline must be enforced, and it will be reported for criticism according to the gravity of the circumstances. Further perfecting work mechanisms, suitably expanding coordination and guidance strength for related intellectual property rights cases, safeguarding the unity of judicial standards.



















































































One thought on “Supreme People’s Court Opinions Concerning Some Issues in Fully Giving Rein to the Function of Intellectual Property Rights Adjudication in Promoting the Grand Development and Grand Flourishing of Socialist Culture and Stimulating the Indigenous Economy and Coordinated Development

    […] the continuing efforts concerning regulatory reform in the cultural sphere, the SPC published a a number of guidelines for judges deciding intellectual property rights cases. He Tianxiang, who’s currently writing […]

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