From Around the Blogs

1. On IPKat, Anastaslia Kyrylenko published a post titled CJEU to address compatibility of Italian anticipatory measures with Enforcement Directive.  The post discusses a recent referral from the Italian Supreme Court to the Court of Justice for the European Union, M.M. Ristorazione, C-132/25 (docketed Feb. 10, 2025).  The referral is said to pose the question whether, contrary to the courts of first and second instance, an injunction granted under article 700 of Italy’s Civil Procedure Code as an “emergency measure” (provvedimenti d’urgenza) in regard to possible trademark infringement qualifies as a “provisional measure” and therefore requires the movant to file suit within 21 business days or 30 calendar days, whichever expires later, under both TRIPS and the Intellectual Property Rights Directive.

Also on IPKat, Jocelyn Bosse published a post, titled Apple variety infringement ruling sees record-breaking amount of damages in China, about a recent decision of China's Supreme People's Court awarding RMB 3.3 million (which included a punitive component) for the infringement of a protected variety of apple.  Here is a press release about the case from the SPC itself.  Neither of these sources links to the text of the actual decision, however.

2.  The difficulty of obtaining the text of some Chinese decisions is itself something of a sore point for many, including the European Union, which has complained about it in two pending WTO matters.  The first, filed in 2022,  argues that Chinese courts’ issuance of ASIs violates articles 1, 41, and 63 of the TRIPS Agreement.  See WT/DS611—China—Enforcement of Intellectual Property Rights, https://policy.trade.ec.europa.eu/enforcement-and-protection/dispute-settlement/wto-dispute-settlement/wto-disputes-cases-involving-eu/wtds611-china-enforcement-intellectual-property-rights_en.  As noted in a recent post on ip fray opining that the EU has lost the initial case, the panel released its report to the parties in February, but it has not yet been made publicly available, and the parties have agreed to arbitrate the appeal (there being no functioning WTO appellate body for at least the last five years).  Meanwhile, in January the EU commenced a request for consultation with China regarding China’s practices with regard to establishing the terms of global FRAND licenses, as in the 2023 Nokia v. OPPO dispute.  The EU contends that China’s practice violates Paris Convention article 4bis, as incorporated under TRIPS article 2.1, as well as TRIPS articles 1, 28, and 63. See WT/DS632-1—China—Measures Concerning Patent Licensing Terms:  Request for Consultations by the European Union, Jan. 22, 2025, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/DS/632-1.pdf&Open=True.  Enrico Bonadio has a post on the Kluwer Patent Blog, titled The WTOdispute between China and EU over Chinese SEPs global rate-setting.

3.  On SpicyIP, Yogesh Byadwal published Injunction against Natco refused:  Public Interest Triumphs—Maybe.  The post discusses a March 24 decision of the Delhi High Court in F. Hoffman-LaRoche Ag v. Natco Pharma Ltd., in which the court invoked the public interest in denying a preliminary injunction against Natco’s production of a generic version of the drug Risdiplam.

China’s Supreme People’s Court Issues Decision on Damages for Infringement of Plant Variety Rights

The case is Shenzhen Jingu Meixiang Industrial Co. v.  Hefei Wanfeng Seed Co., Ltd. and Huoqiu Baofeng Seed Industry Co., Ltd., Case No. Zui Gao Fa Zhi Min Zhong No. 466, 2 Nov. 2021.  An English-language translation by Connie Kongkui Hubbard is now available in 54 IIC 1121-31 (2023)--the August 2023 issue of the Max Planck Institute’s International Review of Intellectual Property and Competition Law—under the heading “China:  ‘Huang Hua Zhan’ Rice Variety’.”  To summarize, the plaintiff Jingu is the exclusive licensee of plant variety rights owned by the Rice Research Institute of the Guangdong Academy of Agricultural Sciences.  Jingu filed suit against Wanfeng, a producer and seller of rice seeds, and Baofeng, a seller, alleging infringement of these rights.  The court of first instance concluded that the defendants infringed and awarded damages of only CNY 300,000 against Wanfeng and CNY 40,000 against Baofeng.  Both parties appeal from certain aspects of the lower court’s ruling.  The SPC affirms the judgment of liability, but awards greater damages against Wanfeng, in the amount of CNY 1,000,000, plus CNY 50,000 costs.

Focusing exclusively on the damages issues, the Seed Law of the People’s Republic of China contains a provision similar to what is found in China’s Patent, Copyright, and Trademark Acts, in that it lists the various types of monetary compensation awardable in order of preference.  Thus, under article 73 of the law in force at the time of the above decision, the court could award damages based on actual losses to the rightsholder; if this was difficult to calculate, then it could award damages based on the infringer’s financial gain from the infringement; if this was difficult to calculate, the court could award a license fee, which could be multiplied up to three times in the presence of aggravating factors; and if all else failed, it could award statutory damages of up to 3,000,000 CNY (equal to about $409,000 as of today).  (An amended version of the Seed Law became effective in 2022.  The damages provision is now found in article 72, under which courts can increase the amount of the license fee up to five times, and statutory damages of up to CNY 5,000,000.)

Anyway, in the present case the SPC rejects the defendants’ argument that Jingu is not entitled to damages because it has not suffered a financial loss, reasoning that the rightsholder suffers a loss even if it does not produce seeds itself, and that the defendants profited from their infringement.  In addition, the court notes that Wanfeng and Jingu entered into a mediation settlement agreement in 2019, under which Wanfeng agreed to pay “damages of no less than CNY 1 million if it violated the agreement,” which according to the court it did.  More generally, the court appears to endorse the use of such stipulated damages agreements, stating that although such a provision may be “simplistic,” the “law does not proscribe a rights owner and an infringer from reaching an agreement in advance regarding liability and the amount of damages.”  In addition, the court noted that the infringement was a re-offense, occurring after the signing of the agreement; that the scale was "rather large"; and that Wanfeng sold and produced seeds that were found to infringing in two other cases in which it was not named as a party.  The court therefore ordered Wanfeng to pay CNY 1 million, plus costs (“reasonable expenses" Jingu incurred "defending its rights”) in the amount of CNY 50,000.  The court also concludes that, although a seller is not liable in damages if it proves that it did not know the seeds it sold infringed, and that it obtained the seeds from a legal source, Baofeng did not prove these facts here (“it is difficult to determine if Baofeng Company either did not know or need not know that the seeds it sold infringed”).  Therefore, Baofeng is liable for Jingu’s losses from the sale of the infringing seeds, plus costs.  The court awards "CNY 40,000.00 damages.”