Recently, Mr. Michael Fu and Ms. Yang Luo of Chang Tsi & Partners (hereinafter referred to as "Chang Tsi") successfully represented Cadbury UK Limited (hereinafter referred to as "Cadbury") in a trademark infringement dispute against Shenzhen Care Pack Co., Ltd. (hereinafter referred to as " Shenzhen Care "). The Shenzhen Intermediate People's Court (hereinafter referred to as "Shenzhen Intermediate Court"), in its final judgment (2024) YUE 03 MIN ZHONG No.13504, upheld the first-instance court's conclusion that Shenzhen Care 's use of trademarks identical or similar to Cadbury's on its packaging constituted trademark infringement and confirmed that the awarded damages were reasonable and justified. Additionally, the court partially supported Cadbury's claim for additional attorney's fees incurred during the second instance trial.

In Case (2024) YUE 03 MIN ZHONG No.13504, Cadbury emerged victorious in the first instance without filing an appeal. In the second instance trial, Cadbury requested RMB 94,500 from Shenzhen Care for additional attorney's fees. The Shenzhen Intermediate Court concluded that Cadbury's submitted invoice indicated it was for the second instance trial's legal fees. Considering the unfounded nature of Shenzhen Care 's appeal and the fact that Cadbury had engaged legal representation for the second trial, as well as the necessity to maintain reasonable costs for defending rights, the court found it appropriate for Shenzhen Care to pay Cadbury RMB 30,000 as reasonable fees for the second instance trial.

In judicial practice, there has been controversy over whether new attorney's fees incurred during the second instance can be claimed within an appeal. According to Article 328 of the Supreme People's Court's Interpretation of the Civil Procedure Law of the People's Republic of China, such fees are new claims requiring separate litigation, rather than falling within the scope of the second-instance trial. This view prevails in most civil and commercial cases. However, recent developments, especially in intellectual property cases, have seen a shift towards considering second-instance attorney's fees as part of the ongoing litigation. This approach has been adopted by some courts and is exemplified by the Supreme People's Court's decision in case (2020) Zui Gao Fa Zhi Min Zhong No. 1667.

This case's success confirms that intellectual property right holders who do not appeal after winning in the first instance but incur attorney's fees due to the defendant's appeal can have these fees reviewed and potentially awarded in full or part during the second instance without initiating a separate lawsuit. This aligns with Article 12 of the Supreme People’s Court’s Opinions on Enhancing the Protection of Intellectual Property Rights, which states that second-instance courts may include reasonable expenses incurred to halt infringement in the compensation amount upon the rights holder's request.

The growing recognition of second-instance attorney's fees in intellectual property cases will undoubtedly strengthen the resolve of rights holders to protect their legitimate interests, deter infringement more effectively, reduce enforcement costs, and embody higher standards of judicial fairness and equity.