In June 2021 the Shenzhen Administration for Market Regulation (Shenzhen AMR) issued the first ever provisions on administrative injunctions against the infringement of a design patents, including online infringements. It was a revolutionary provision. Without need to prove irreparable damage, a right holder could seek quick relief by filing a simple administrative complaint. Now eight months later, I went back to check on the state of this reform.
In the first case implementing these provisions the Shenzhen AMR put end to an infringement within 24 hours from the filing of the complaint by the right holder. Unlike trademarks, where quick raids against counterfeiters can be launched within hours from the filing of an administrative complaint, design protection previously relied on more formal, lengthy and expensive administrative or civil litigation. Thus, this reform seemed to usher in reform that could effectively improve remedies against design patent infringements in China. Other cities and provinces started similar provisions in the summer of 2021. I covered this topic in more details in a previous blog (here).
Surprisingly, in the past eight months there are no recorded cases of such injunctions by the Shenzhen AMR. Those I cited in my previous blog of July 2021 are the first and only.
I checked the other provinces where similar provisions where implemented or were in the approval process. The Hainan Free Trade Port “Regulations on the Protection of Intellectual Property Rights of Hainan Free Trade Port” (海南自由贸易港知识产权保护条例) were finally approved on December 1, 2021, and just took effect on January 1, 2022. Given the recent implementation, we will need to wait to see if and how such tool will be used. The Shantou AMR (Shantou is a key industrial region and a center of heavy counterfeiting activities in Eastern Guangdong province) issued the “Shantou Special Economic Zone Regulations on Intellectual Property Protection (Draft for Comment)” (汕头经济特区知识产权保护条例（征求意见稿）) on April 19, 2021. However, the final version still lingers in the approval stage. Shanxi Provincial Department of Justice issued the “Shanxi Province Intellectual Property Protection Regulations (Draft for Comment)” (《山西省知识产权保护条例（草案）》) on July 23, 2021. However, up to now, the final version has not been approved.
After the initial reform push between the spring and summer of 2021, practically nothing has happened. No new cases have been recorded in Shenzhen and similar provisions in other provinces have been pending approval for over eight months.
What are the reasons for the loss of momentum? It would be interesting to understand why there have be no cases in Shenzhen since the summer of 2021. The injunction has rather low requirements for its implementation and should be easy to enforce compared to more complex and expensive court preliminary injunctions. Why would right holders shy away from using such remedy, especially against online infringements along with and in reinforcement of takedown actions? The number of design filings in China have steadily increased and it is surprising to see overall how little infringements of design patents have been litigated in China compared to trademarks or invention patents. The implementation of flexible administrative injunctions, also usable against online infringements, should correspond to a sharp increase in claims, but that has not happened.
We will keep monitoring and reporting.