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execution of these orders. Refusal to comply with a seizure order will result in a
contempt of court. On the other hand, the use of the order for abusive purposes
may result in the grant of substantial compensation to a defendant.
Security
Article 7(2) of the Enforcement Directive provides that Member States shall
ensure that the measures to preserve evidence may be subject to the lodging by
the applicant of adequate security or an equivalent assurance intended to ensure
compensation for any prejudice suffered by the defendant as provided for in Art
7(4).
7.37
Article 10.4 of the ACTA contains the additional qualification that any security
or equivalent assurance imposed by the courts shall not 'unreasonably deter'
applicants for provisional measures.
7.38
Revocation of seizure orders
Article 7(3) of the Enforcement Directive provides that Member States shall
ensure that the measures to preserve evidence are revoked or otherwise cease to
have effect, upon request of the defendant, without prejudice to the damages
which may be claimed, if the applicant does not institute, within a reasonable
period, proceedings leading to a decision on the merits of the case before the
competent judicial authority, the period to be determined by the judicial
authority ordering the measures where the law of a Member State so permits or,
in the absence of such determination, within a period not exceeding 20 working
days or 31 calendar days, whichever is the longer.
7.39
Compensation
Article 7(5) of the Enforcement Directive provides that where the measures to
preserve evidence are revoked, or where they lapse due to any act or omission by
the applicant, or where it is subsequently found that there has been no
infringement or threat of infringement of an IPR, the judicial authorities shall
have the authority to order the applicant, upon request of the defendant, to
provide the defendant with appropriate compensation for any injury caused by
those measures.
7.40
This provision emulates Art 50.7 of the TRIPS Agreement, which provides
that where a provisional measure is revoked or where it is subsequently found
that there is no IPR infringement, the judicial authorities shall have the
authority
upon the request
of the defendant to provide the defendant with
appropriate compensation for any injury caused by these measures.
7.41
