Effective Cure To Infringements Of Intellectual Property Rights In Hong Kong: Interlocutory Injunction

Introduction

The Hong Kong Toys and Games Fair is the second largest toy fair in Asia. In 2007, it was held in early January at the Hong Kong Convention and Exhibition Centre with over hundreds of exhibitors participating. One of the exhibitors, COG Limited, which is a reputable designer and manufacturer of educational toy experiments ("the Exhibitor"), noticed one of the other exhibitors in the Fair, Eastcolight (Hong Kong) Limited ("the Infringer"), had exhibited a series of products that were virtually or visually similar to one of their series. The similarities are so significant that some customers mistakenly identified the Infringer's products as manufactured by the Exhibitor or misconceived that they were identical to those sold by the Exhibitor.

The Exhibitor sought an interlocutory injunction order from the High Court of Hong Kong to stop the Infringer from infringing the Exhibitor's copyright and passing off the Exhibitor's products. So what is an interlocutory injunction and how to apply for one?

The Law and Procedure

According to Section 21L of the High Court Ordinance of the Laws of Hong Kong, the Court can grant an injunction in cases which it appears to the Court that it is "just and convenient" to do so. To prove the same, the applicant has to convince the Court that the following principles laid down in the landmark case American Cynamid v Ethicon Ltd. are satisfied :-

There is a serious issue to be tried - the applicant should show there is a real prospect of obtaining a permanent injunction when the case goes to trial. The Court will generally require the applicant to show that his case is likely to be a successful one.

Award for damages is not adequate - the applicant should show liquidated damages cannot compensate the harm done on the applicant. In practice, that is to show that the damages sustained is irreparable.

Balance of convenience - the applicant should establish that he is likely to suffer more hardship than the respondent.

To apply for an interlocutory injunction, the applicant has to adduce evidence to the Court by affidavit. Hearing of the application will be fixed before a Judge in open court. If the respondent contests the application, the hearing will be adjourned to a further date for arguments. At this juncture, it is essential to convince the Court to grant an interim interlocutory injunction until the date of argument since the interval might be lengthy.

In general, it takes about 2 to 3 weeks'...