1、 Dealing with intellectual property litigation disputes in the United States

(1)Quick Procedure for Intellectual Property Civil Litigation in the United States

The cross-border e-commerce litigation cases accepted by the US court are heard quickly, and the general process is shown in Figure 7: (1) After the plaintiff files a complaint, they immediately apply for a temporary injunction to the court; (2) Freeze the defendant's store or bank account, and then serve the complaint and summons to the defendant via email; (3). A considerable number of Chinese defendants did not handle emails in a timely manner, missing the opportunity to submit motions (4) and pleadings (6). During this period, the plaintiff may apply for a temporary injunction extension (5) or a preliminary injunction (7). Due to the defendant's failure to submit a defense within the court's prescribed time limit, the court will place the defendant in absentia (8), and thereafter, the plaintiff will file a default judgment with the court. If the defendant does not raise any objections or attend the hearing (12) after receiving the notice of default judgment (11), the court will make a default judgment (13), and the final judgment is usually won by the plaintiff.

According to research, Chinese e-commerce companies generally receive a temporary injunction to freeze their accounts during the litigation process, followed by the plaintiff's complaint and court summons, and then the plaintiff's preliminary injunction notice and hearing. This section introduces typical steps that Chinese e-commerce companies are concerned about in the above procedures, such as plaintiff's lawsuit and document delivery, issuance of temporary and preliminary injunctions, etc.

（2） Measures to address intellectual property litigation disputes in the United States

1. Assess the nature of the case

When receiving a lawsuit and temporary injunction, it is recommended to prioritize the following handling plan and process: (1) confirm whether the infringement facts are established; (2) Evaluate the value of the store; (3) Seeking professional lawyers; (4) Under the guidance of a lawyer, develop response plans, prepare materials and evidence, etc.

2. Typical response measures for each stage

(1) Pre answer Motions: The defendant and their legal representative may submit a motion before the formal defense to request the court to dismiss the plaintiff's lawsuit. For example, propose the following motion:

① Pre answer Motion to dismiss: Verify whether the court lacks jurisdiction, is unsuitable for jurisdiction, has insufficient procedures, or has defects in service, and file a motion to dismiss the plaintiff's lawsuit based on these issues.

② Delete motion to strike

If there is insufficient, redundant, irrelevant, irrelevant or defamatory content in the plaintiff's legal documents, a motion for deletion can be proposed to delete the above content.

③ Request for a clearer statement motion

If the plaintiff's statement in the complaint is too vague to reasonably require the other party to provide a response letter, the defendant may move a pre-trial motion to point out the unclear content and the details that need to be supplemented. If the court rejects the above request, the defendant shall make a formal defense (The answer) within the original deadline.

(2) Regarding the temporary ban

① The party who has received a temporary injunction if the infringement facts are not established or the determination is incorrect may file a motion to lift or modify the injunction with the court within the prescribed time.

② If the infringement facts are established and deemed reasonable, it is recommended that the defendant's lawyer negotiate with the plaintiff's lawyer to resolve the issue and request the plaintiff to revoke the temporary injunction or withdraw the lawsuit.

(3) Regarding the preliminary ban

① If the infringement facts claimed by the plaintiff are not established or the determination is incorrect, the defendant may, after receiving the preliminary injunction notice, propose a motion to revoke it, submit corresponding evidence materials, and defend at the hearing to reject the issuance of the preliminary injunction.

② If the infringement facts are established and deemed reasonable, it is recommended that the defendant's lawyer negotiate with the plaintiff's lawyer to resolve the issue and request the plaintiff to revoke the injunction or withdraw the lawsuit.

(4) Regarding the trial in absentia

The defendant may apply for revocation of absenteeism and default judgments. Although revoking absenteeism and default judgments is very difficult, the relevant provisions of the Federal Rules of Civil Procedure still provide remedies for revoking and default judgments.

① Revoke absence

Defendants listed as absent may apply to the court for revocation of their absence based on legitimate reasons.The factors for the court to determine whether it is a "justifiable reason" generally include: 1) whether the absence was intentional; 2) Will withdrawing the absence status harm the interests of the other party; 3) Whether the absent party has submitted reasonable defense opinions, etc.

② Revocation of default judgment

Within one year from the effective date of the default judgment, if the defendant has justifiable reasons, they may apply for the revocation of the default judgment by filing a motion. Common justifiable reasons include:

1) Errors, omissions, accidents, or forgivable negligence. For example, invalid delivery or defective delivery, lack of jurisdiction of the court, etc;

2) Reasonable reasons for absence. For example, the absence of the parties is not due to their own reasons, but due to objective reasons, and the parties are completely unaware of the existence of the lawsuit. Of course, the party applying for the revocation of the judgment also needs to provide evidence that they have a certain possibility of winning the case.

3) False statements or inappropriate behavior by the other party. The plaintiff's listed infringement facts are incorrect, but the defendant did not infringe.

4) Newly discovered evidence, etc. If the defendant discovers new evidence that can overturn the original judgment, they can also file a motion to revoke the default judgment.

2、 Dealing with intellectual property litigation disputes in Germany

（1） GermanyQuick Procedure for Intellectual Property Civil Litigation

1. Warning letter and temporary injunction

Cross border e-commerce companies may receive various warning letters or temporary bans, mainly including:

(1) Warning letter

① Issuance of Warning Letters

A warning letter is a request made by the rights holder or their authorized lawyer to the defendant to cease the infringing behavior, and is a way of resolving disputes out of court. A warning letter does not go through the court and is a non litigation self-help measure. A warning letter is not a legal requirement for filing an infringement lawsuit, but issuing a pre litigation infringement warning letter is of great significance to the rights holder. If the rights holder has not issued a warning letter to the defendant before filing a lawsuit, it cannot be determined whether the defendant will directly admit to the infringement. If the rights holder issues a warning letter, the defendant may admit to the infringement in the early stages of the lawsuit, which can save litigation costs. In addition, if the rights holder does not issue a warning letter to the defendant before filing a lawsuit, the plaintiff must pay all litigation costs, and if a warning letter has been issued, the plaintiff does not need to pay all litigation costs.

The main content of a warning letter generally includes: a description of the specific infringement behavior; The specific legal basis for demanding the cessation of infringing behavior; What behaviors constitute infringement and a statement of cessation of infringement. In a statement of cessation of infringement, there is usually a penalty clause,Warning letters usually have a response deadline, which can range from 1-2 hours to 1 week.

③ Response to Warning Letters

After receiving a warning letter, the person being warned should be treated with caution, should not hastily sign the warning letter, and should not ignore it. It is recommended that the person being warned entrust a professional lawyer to handle it on their behalf. Generally speaking, the person being warned can start from the following aspects:

a) Determine whether the infringement facts are established;

b) Check if the warning letter is reasonable. Even if there is infringement, if the penalty clause in the warning letter requires a too high amount, the warned person can demand that it be reduced to a reasonable range;

c) Make reasonable negotiations with the warning person;

d) Submit a request for protection letter to the court, and the warned person shall submit a defense brief to the German court regarding the disputed matter, detailing the reasons for non infringement;

e) Issue a counter warning to the warning person. Explain the reasons for non infringement to the warning person;

f) Sign a warning letter. The signed warning letter is binding, and the person being warned is deemed to acknowledge the infringement, promise not to engage in infringement again, bear compensation for losses, and pay punitive damages when the infringement occurs again.

It is worth noting that if the warned person signs the warning letter, indicating that the threat of serious infringement has been exposed, the warning person will no longer be able to apply for a temporary injunction before filing a lawsuit.

(2) Temporary ban

① The issuance of a temporary injunction refers to an order issued by the court requiring the defendant to cease infringing behavior before the litigation process takes place. The function of a pre litigation temporary injunction is to prevent the interests of the rights holder from expanding the scope of damage caused by the infringer's actions or to avoid irreparable losses to the rights holder's interests. As long as the applicant can demonstrate the urgency of the situation, German courts generally agree to issue a temporary injunction without applying for its justification.

In practice, before receiving a temporary injunction, the other party usually sends a warning letter, but the time interval between the warning letter and the temporary injunction is relatively short, usually 2-4 weeks.

The conditions for issuing a temporary injunction are: a) the right holder should take timely action and apply to the court for a pre litigation temporary injunction within 4-6 weeks of discovering the infringement; b) The applicant's temporary injunction should have urgency; c) The applicant has legal and valid intellectual property rights in Germany; d) The applicant can provide evidence to convince the judge that there is a high possibility of infringement occurring; e) In the absence of evidence, the applicant can also apply for a temporary injunction as long as they provide sufficient guarantees.

② Characteristics of Temporary Ban

There is often no court hearing before the issuance of the ban, and the issuance speed is relatively fast, usually 1-2 days;

After the ban is issued, it must be delivered within one month to take effect;

After the prohibition is served, it remains valid until it is revoked through legal procedures.

③ The content of the temporary ban

Request the injunction to immediately stop the infringing behavior of the counterparty within Germany, otherwise they will be fined or even detained;

Sometimes the injunction party may be required to provide infringing information and bear procedural costs;

There is no demand for compensation for damages.

④ Response to temporary bans

The respondent has the right to request the applicant to sue. If the applicant refuses, the defendant may apply for the revocation of the injunction. If the facts change after the temporary injunction is issued, the respondent may also apply to revoke the judgment. If the court rejects the application for a temporary injunction without convening a hearing, the applicant has the right to appeal.

On the premise of agreeing to the temporary injunction, the person subject to the injunction refuses to bear the cost of the temporary injunction on the grounds that the rights holder did not issue a warning letter in advance;

If you do not agree with the temporary injunction, raise an objection to the court. The court will hold a trial and issue a judgment after hearing the appeals of both parties. Either party who is dissatisfied with the judgment may appeal. The appeal judgment is the final judgment of the temporary injunction procedure. During the appeal period of the temporary injunction judgment, the effectiveness of the temporary injunction shall not be suspended unless the judgment overturns the temporary injunction.

If the final injunction cannot be proven to be justified from the beginning, the applicant for the temporary injunction will bear the liability for compensation.

2. Absentee trial

In Germany, non responsive judgments can be made to either the plaintiff or the defendant, and can be classified into two types based on different litigation materials.

(1) Absentee judgment

According to the relevant provisions of the German Civil Procedure Law, if the plaintiff fails to appear during the verbal argument period, the court shall reject the original lawsuit request upon the defendant's application (except for cases confirming marital and parent-child relationships); If the defendant is absent during the verbal argument period, the plaintiff may apply for a default judgment,The plaintiff's statement of facts shall be deemed to have been acknowledged by the defendant.If the court considers the plaintiff's request to be legitimate, it shall make a default judgment; otherwise, it shall dismiss the lawsuit request.

Absentee judgment can only be remedied through objection. According to the principle of "preferential treatment", even if the court wrongly determines a default judgment, the parties can raise objections. At the same time, the law stipulates that in the event that one party's application for a default judgment by the court is rejected, the party may file an immediate appeal against the ruling of the rejected application.

(2) Judgment on the seat

The German Civil Procedure Law stipulates that if both parties are absent during the oral argument period, the court may make a judgment based on existing records; Only when one party is absent, the other party may also apply for a judgment based on existing records, and whether the court allows their request depends on the specific circumstances of the case. In addition, according to the existing records, the seat judgment requires verbal arguments to be conducted in the previous period.

The appeal (complaint, appeal) can only be used to demand relief from the judgment.In addition, if the court rejects the application for a judgment based on existing records, the parties shall not declare their dissatisfaction in any way.

3. Objection relief

In Germany, a default judgment can only be appealed to the court that made the default judgment by way of objection. The parties only need to present their own attack and defense measures against the plaintiff's request in the objection, without proving that their absence is legitimate or that there is no fault in their absence. According to the German Civil Procedure Law,The absent party shall submit an objection application to the court within 2 weeks from the date of service of the absent judgmentThe court may extend the period for service made abroad or through public notice.

The objection to the default judgment cannot be unilaterally abandoned before the default judgment is made, but the objection abandoned after the default judgment is made cannot be raised again. If an absent party raises an objection, the court shall review the legality, form, and deadline of the objection in accordance with its authority. If the objection meets the requirements, the judge shall reject it. The judge may designate a new debate period for legitimate objections. However, the objection application does not have the effect of revoking the original default judgment and can only be revoked in a new judgment. If the original absent party is absent again from the new trial procedure, they cannot raise objections and seek relief again. In addition, regardless of whether the original default judgment has changed or not, the absent party should bear the corresponding expenses incurred due to their absence.

（2） German intellectual property case statute of limitations

According to the German Civil Code and German Patent Law, patent infringement lawsuits must be submitted to the court within 3 years after becoming aware of the infringement and the infringer. On the premise of no gross negligence, if the creditor should have noticed the infringement but did not notice it, the statute of limitations for litigation also starts from that moment. For claims for damages arising from the use of publicly available patents prior to trial, the statute of limitations for litigation starts from the first year of patent authorization. When the defendant argues for the termination of the statute of limitations, they must provide relevant evidence regarding the plaintiff's termination of the statute of limitations.

（3） Measures to deal with intellectual property disputes and lawsuits in Germany

For Chinese cross-border e-commerce companies dealing with German patent litigation, the following information should be understood.

(1) Deposit a 'protective letter' in response to pre litigation injunctions

The accused infringer may deposit a "letter of protection" (Schutzschrift) with the court where they are expected to file a lawsuit. The protection letter contains objections to the expected issuance of a pre litigation injunction and requests that a pre litigation injunction should not be issued unilaterally (i.e. without prior court hearing).

(2) Based on whether a warning letter has been issued in the previous stage, respond to the pre litigation injunction

If the other party has not issued a warning letter in advance and has indeed infringed (even unintentionally), or if the relevant product is not very important to their German market, they can immediately recognize the other party's claim and only file a review of the cost of the ruling. In this way, although the applicant has implemented their patent rights, they need to bear the cost of the pre litigation injunction procedure, including the defendant's lawyer fees (based on Article 93 of the German Civil Procedure Law). However, if the other party also applies for evidence preservation in the pre litigation injunction, then it is not only necessary to file a review of the cost part, but also to file a review of the evidence preservation part.

If the other party has previously issued a warning letter and one has indeed infringed (even unintentionally), then Article 93 of the German Civil Procedure Law cannot be applied. In this case, it is possible to negotiate with the other party and adopt an out of court settlement to comprehensively resolve the dispute. Both parties can sign a settlement contract, and the respondent expresses acceptance of the ruling of the temporary injunction and waives the right to file a review of the temporary injunction. The applicant, on the other hand, has stated that they have abandoned filing a formal lawsuit for this infringement dispute and have made concessions regarding the litigation costs already incurred in the temporary injunction procedure. Generally, they share the costs with the respondent, rather than simply having the respondent bear the costs as stipulated in the temporary injunction ruling. In the settlement contract, common solutions can also be proposed for some details that have not yet been addressed in the temporary injunction procedure, in order to resolve the dispute through out of court negotiations in the long run.

If the respondent believes that they have not infringed, they may file a lawsuit with the court within the prescribed time limit (generally not exceeding 6 months). If the applicant fails to file a formal lawsuit on time, the court will, at the request of the respondent, revoke the temporary injunction and sentence the applicant to bear all costs of the temporary injunction procedure.

(3) Response to warning letters and guarantee of cessation of infringement

According to the relevant provisions of the German Anti Unfair Competition Law, before taking legal measures with court intervention (such as applying for a temporary injunction or filing a formal lawsuit), the rights holder should first give the other party an opportunity to resolve the dispute out of court. In addition, the German Civil Procedure Law stipulates that if the defendant's (or respondent's) actions indicate that there is no need for the court to intervene and the other party's claim is immediately recognized in court, then although the court will rule that the plaintiff's (or applicant's) claim is established, the litigation costs of both parties, including attorney fees, must be borne by the plaintiff (or applicant). In order to avoid the consequences of having to bear litigation costs despite winning the lawsuit, the rights holder usually sends a warning letter to the infringer in advance, giving the other party an opportunity to resolve the dispute out of court.

A letter of guarantee to cease infringement will be included in the warning letter. The rights holder will require the infringer to sign the guarantee of cessation of infringement. If you feel that you have not infringed at all, you can clearly tell the other party that they can apply for a temporary injunction. We will immediately initiate a review of the temporary injunction, or we will apply to the court to give the other party a deadline to file a formal lawsuit (usually not exceeding 6 months). Otherwise, the temporary injunction will be revoked by the court, and the applicant will bear all legal costs. If you are unsure whether there is infringement and the products involved are not very important to your European market, you can write a guarantee yourself or hire a trusted lawyer to immediately stop producing, distributing, importing, or possessing the relevant products in the commercial field for the above purposes, and clearly state that this guarantee does not imply recognition of your legal obligations (i.e. not recognizing any infringement in the sense of trademark law, design law, patent law, etc.), but only a promise in the sense of a civil contract. The contract penalty is around 5000-6000 euros, or it can be determined by the court. As for the other party's other requests, they will be clearly refused. Then hand over the signed guarantee letter to the other party's representative or lawyer as soon as possible.

Other commonly used litigation response measures, such as filing counterclaims claiming patent invalidity, negotiating settlements, etc., can refer to the French Cross border E-commerce Litigation Response Measures section.