Shenzhen Administration For Market Regulation (AMR) issued China’s first “IP Administrative Injunction Decision” in a design patent infringement case on 24 June 2021. This is a new form of remedy in China’s administrative IPR protection mechanisms. It has advantages of speed and efficiency. This occurred in Shenzhen Special Economic Zone which is a little unique in China. There are many hi-tech companies and innovators there. IP infringement appears in new ways so the AMR is trying to find new ways to protect IP. Their AMR officials are younger, educated with good legal backgrounds and are creative at trying new ways to strengthen IP protection.
A Canadian individual right holder made a complaint to Longgang District of Shenzhen AMR regarding an alleged infringement of his design patent for a bath chair on 18 June 2021 against a local registered company. The AMR considered the case on 24 June and through initial investigations found the alleged infringer sold and offered for sale the bath chair on Alibaba’s 1688 ecommerce platform. The AMR took the view that an ex officio injunction was needed to stop the continuance of the infringement. They therefore issued the administrative injunction decision on 24 June (the same day the case was considered) to the local company. The decision requested the alleged infringer to immediately stop selling the bath chair in question fusing a one month period from 25 June 2021 to 25 July 2021.
Note that as this is administrative enforcement, third parties like the platforms will not be a a joint party as in litigation. So the injunction only applies to the seller himself.
A preliminary injunction is a rare thing even in judicial practice. The applicant is normally requested to prove to the court that infringement exists, irreparable damages will occur or damages will increase if the preliminary injunction cannot be granted and executed.
Under the Shenzhen Special Economic Zone IP Protection Regulation (effective 1 March 2019), Article 28 empowers the AMR to order preliminary injunctions upon application or ex officio. In effect the AMR is a quasi judicial body, making a quasi judicial order. This is the first case the AMR has applied the injunction, ex officio.
According to the AMR, when considering whether an injunction can be granted, they will consider factors like strength of the IP right, if the injunction will cause harm to the public interest, are there irreparable damages to the right holder if not granted, and the life cycle of alleged infringing product etc. A bond is usually required if the injunction is applied by the right holder. The injunction usually will last until an administrative punishment decision is issued and usually will not exceed 4 months. This also shows how the AMR will investigate and conclude a case very quickly.
Given litigation is usually time consuming, this administrative protection is a quick and cost effective alternative for right holders. This remedy is a new tool for IP owners against infringers in Shenzhen and in time, it is likely that this remedy will appear elsewhere, since Shenzhen is often a test ground for new IP remedies.
