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19 April 2021
On 12 September 2020 the Supreme People's Court promulgated two judicial interpretations regarding IP rights disputes that involve internet service providers (ISPs):
This article summarises the key points of these two judicial interpretations.
Rights holders may apply for court injunctions to order ISPs to take measures to remove, block or disconnect any infringing links. However, ISPs may terminate such measures where:
The reasonable period may be extended where delays are caused by exceptional circumstances beyond the rights holder's control (eg, notarisation and legalisation procedures). However, it must not exceed 20 working days.
Where an online service user files a non-infringement statement in bad faith, the rights holder may claim punitive damages. Further, the rights holder may be exempt from any liability resulting from filing its complaint where it can prove that:
A seller which operates on an e-commerce platform may also apply for a court injunction to order such platform to restore any links removed at the request of a rights holder where the seller's legitimate interests are likely to be irreparably damaged in the near future.
For complaints or non-infringement statements which involve patents, e-commerce platforms may require the submission of a comparison of the technical or design features. Where a design or utility patent is involved, e-commerce platforms may further request the submission of a National Intellectual Property Administration appraisal report regarding such patent's novelty.
Examinations will consider:
These two judicial interpretations will benefit rights holders and help to prevent infringement of IP rights online – for example, by:
For further information on this topic please contact He Wei at Wanhuida Intellectual Property by telephone (+86 10 6892 1000) or email (firstname.lastname@example.org). The Wanhuida Intellectual Property website can be accessed at www.wanhuida.com.
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