The conventional view that permanent injunction is automatic for IPR infringement is losing ground in China. In fact, there is no statute that requires Chinese courts to grant an injunction upon finding infringement on merit. While IPRs are absolute exclusive rights, IPR infringement incurs liabilities, which by definition are relative. Courts on this account should formulate remedies in the frame of reference for liabilities, with the ultimate objective being to adequately remedy the right infringed. Among the possible reliefs, an injunction is the single powerful non-monetary liability. When considering this relief, Chinese courts may look at the general rules applicable to the performance of obligations in the Chinese civil laws. Case studies show that this is what they intuitively do when denying an injunction in copyright infringement cases. Specifically, they disallow an injunction where the injunction is impossible de jure or de facto, or liable to impose a prohibitive cost on the defendant; or the right is enforced in bad faith or in an unreasonably delayed manner.
The notification and taking down procedure of the newly enacted Chinese E-Commerce Law is uncannily applicable to all infringements of all categories of IP in selling all kinds of goods on e-platforms, even to those which cannot be determined with a sufficient degree of certainty on available evidence by the e-platform. This mechanism overreaches grounds for the DMCA notification and taking down procedure and Chinese preliminary injunction. It overstrains e-platforms’ capabilities to assess intellectual property infringement and is indifferent to e-platforms’ lack of legal and technological expertise. It is wrong to be obsessed with the DMCA procedure – which is ceteris paribus – without measuring up to the distinctive e-platforms, e-sellers and e-businesses. Both e-platforms and e-sellers fundamentally have a common interest in the good governance of the platforms. It is out of place for the Chinese E-Commerce Law to encourage e-platforms to be a conduit for passing notifications and to take measures upon notifications of IP infringement mechanically and unscrupulously.