Winning preliminary injunctions

Since a preliminary injunction can stop acts infringing upon IP rights quickly before the final judgment for an action is made, or even before the action is filed, it is increasingly used by IP rights owners and granted by courts in a trend that further strengthens the protection of IP rights in China.

This article aims to give some introduction to the legal practice of application of preliminary injunctions in enforcement of Chinese IP rights.

Issues to consider

In determining a preliminary injunction there are six main issues to consider:

High likelihood of success for the plaintiff;

Urgent circumstances where the infringing acts are being conducted or about to be conducted;

Irreparable damage to be caused to the plaintiff without preliminary injunction;

The balance of potential harms between the plaintiff and the defendant;

No harm to the public interest; and

Security which should be provided by the plaintiff and would be used to compensate the defendant for potential damages due if the preliminary injunction is wrongly granted.

Among these six issues, points 2 and 3 are pivotal. It is usually difficult to determine whether there is an urgent circumstance where the plaintiff’s lawful rights and interests will be irreparably damaged if no preliminary injunction is granted.

This article gives examples of some well-known cases regarding preliminary injunction in enforcement of various types of IP right, which are focused on the determination of the urgent circumstances where irreparable harm will be caused if no preliminary injunction is granted.

Trade secrets

Our first example is a trade secret infringement case, (2013) Hu Yi Zhong Min Wu (Zhi) Chu No. 119 decided July 31, 2013. In this case, an employee downloaded 21 documents of core trade secrets of his employer Eli Lily Company from the server of the company and stored them into his own personal device.