How to determine the limitation of action for infringement?

Regarding different objects of infringement, the infringement behaviors could be divided into various categories, such as the behaviors which have infringed the right holder’s property rights (such as unauthorized possession of another person’s real estate), trademark rights, or the right to life and health of individuals, and so on. Regarding the status of infringement, the infringement behaviors could be divided into an accomplished behavior, such as a car accident, and an on-going behavior, such as a party keeps manufacturing goods that infringe on the patent rights of others over the years.

In view of the above, whether the common limitation of action as 3 years shall be applied to all infringement behaviors? The answer is negative.

Firstly, some infringement circumstances are not subject to the limitation of action, in other words, they are not subject to a three-year limitation. Those circumstances are mainly including:

(1) The circumstances as stipulated in Article 196 of the “Civil Code”. They are, ① a claim for ceasing infringements, removing obstacles and eliminating dangers; ② the holder of reals rights to immovables or registered movables claims the returning of his property; and ③ a claim for the payment of child support, alimony or maintenance.

(2) The circumstances as stipulated in Article 995 of the “Civil Code”, which says, “Where the personal rights are infringed, the victim shall have the right to request the infringer to bear civil liability in accordance with the provisions hereof and other laws. The provisions on the limitation of action shall not apply to a victim’s rights to request for cessation of an infringement, removal of an obstacle, elimination of danger, elimination of ill effects, rehabilitation of reputation or extension of a formal apology.”

Secondly, the three-year limitation of action would be applied to the rest circumstances in principle. Despite the laws provide otherwise, a limitation of action shall run from the date when an obligee knows or should have known that his or her rights have been infringed upon and who the obligor is. That is, the limitation of action in China would be determined by both subjective and objective factors, which means, from the perspective of object, the right holder’s right has been infringed; and from the perspective of subject, the right holder knows or should have known that his rights have been infringed, and who the obligor is.

How to determine whether the right holder’s right has been infringed? It could be determined from the following aspects.

First, how to determine the time point when the right holder’s right is infringed? There are two views. The right holder’s right is infringed when the infringement occurs, or when the damage has been confirmed. Generally speaking, the time when an infringement occurs is the time when the rights are objectively damaged. However, for the majority circumstances, the damage is not clear when an infringement occurs, so the right to claim for compensation normally shall be calculated from the time when the damages are determined. For example, in the case (2017) Jing 01 Min Chu No. 94, the judge held that, “It is not appropriate to take the time of the injury as the starting point of the limitation of action for personal injury cases. In this case, the starting point shall be the time when Feng has been treated to a stable status, and all losses could been clarified. Accordingly, Feng’s claim did not exceed the limitation of action.”

Secondly, how to determine the starting point of a continuous infringement? The so-called continuous infringement refers to the continuous and uninterrupted infringement of the same right object. In practice, the continuous infringements mainly include the IPR infringement, the illegal possession of others’ movable or immovable property, the infringement of others’ personal rights through internet and etc., the emission of pollutants, and so on.

Regarding the starting point of a continuous infringement, because there is no laws or regulations have mentioned about it, there are different opinions in judicial practice.

Some judges held that the starting point shall be the time when the infringement has been accomplished. In the case (2019) Hu 0115 Min Chu No. 37458, the court held that, “Even though the defendant had built the structure in the patio for many years, this was a temporary status that the plaintiff had not defended for his right, so the plaintiff requested the defendant to remove the cement roof and air window built by the defendant, and restore the original state, which has legal basis and is granted by the court according to law.” The defendant argued that the plaintiff’s claim has passed the limitation of action, however, the court held that, “The starting point of a continuous infringement shall be the time when the infringement has been accomplished. Since the defendant’s infringement is ongoing till now, the plaintiff is entitled to bring the lawsuit against the defendant, and the limitation of action has not been exceeded.” In the case (2019) Yu 17 Min Shen No. 138, the judge held that, “Regarding the issue of Zhang’s claim that the respondent’s claim exceeded the limitation of action, upon investigation, Zhang had been occupying the disputed land, which was a continuing infringement, and the limitation of action should be calculated from the date when the infringement was completed. When the respondent filed a lawsuit, Zhang still did not return the land, so his opinion that the lawsuit exceeded the limitation of action was not accepted.”

Some judges held that the starting point shall be the time when the right holder knows or should know that the right has been damaged and who the obligor is. In the “Understanding and application of the Civil Code”, the Supreme Court proposed that, “There is no special provision in the law for the commencement of the limitation of action for debts of continuous infringement, so the commencement of the limitation of action for debts of continuous infringement should be determined in accordance with Article 188 of the “Civil Code”. If the limitation of action exceeds three years, the amount of damages will only be calculated forward for three years, and no compensation will be made for the losses exceeding three years.”. Currently, this opinion is adopted in judicial interpretations of disputes over copyright, trademark, and patent rights.

Some judges held that an infringement could be divided to different sections, and the payment obligation of each section changes every day, so the limitation of action shall be calculated separately. For example, in the case (2021) Yue 01 Min Zhong No. 10310, the plaintiff Jun X Company believes that the infringement in this case is a continuing infringement, the limitation of action shall be calculated from the time when the infringement has been accomplished, and Article 189 of the “General Principles of the Civil Law” shall be applied (Note: ” Where the parties have agreed that the same obligation will be performed in installments, the limitation of action shall run from the date when the time limit for payment of the last installment expires. “), which means the plaintiff’s claim has not exceeded the limitation of action. The court pointed out that, “According to the transaction practice of general lease contracts, rent or occupancy fees are paid on a monthly basis, so the monthly occupancy fees payable by De X Hotel belong to different liabilities, and the limitation of action should be calculated separately. In this case, Jun X Company or the property owner of the house did not agree to pay the occupancy fee by installment with De X Hotel. Therefore, Jun X Company claims to apply the provisions of Article 189 shall not be supported. “

In practice, the determination of the limitation of action is complicated and uncertain for specific cases. Therefore, as the legal saying goes, “The law does not protect the sleepers in rights.” The rights holders should actively claim their rights as soon as possible to avoid losing their right to victory due to the expiration of the limitation period.