Geography Reference
In-Depth Information
defendant 'with a view to deciding, within a reasonable period of notification of
the measures' whether they should be 'modified, revoked or confirmed'. Add-
itionally, if proceedings leading to a decision on the merits of the case have not
been initiated within a reasonable period, Art 50.6 permits the defendant to
request the revocation of the provisional measures or for a determination that
they cease to have effect.
2.116
Similar to the safeguards which have been developed in relation to the
Anton
Piller
procedure, Art 50.7 provides for the compensation of a defendant where
'the provisional measures are revoked or where they lapse due to any act or
omission by the applicant, or where it is found subsequently that there has been
no infringement or threat of infringement of an intellectual property right'.
(iii)
Injunctions
2.117
A civil remedy which is important for the preservation of intellectual property
rights is injunctive relief. This is particularly the case where infringement may
damage or undermine the establishment of a commercial reputation immedi-
ately upon the launching of a new product; similarly, where the widespread
counterfeiting of a trademarked product may have the effect of destroying the
distinctiveness of a proprietor's mark, thereby rendering the trade mark regis-
tration voidable. Article 44 permits the conferral upon the judicial authorities of
the power 'to order a party to desist from an infringement, inter alia, to prevent
the entry into channels of commerce in their jurisdiction of imported goods
that involve the infringement of intellectual property rights'.
2.118
The injunctions which may be granted under Art 44 are grounded upon
infringing conduct. Where proof of consumer deception is the central feature of
the infringement, the remedy proffered by Art 44 may be rendered nugatory
where a sufficient time is required to provide an opportunity for consumers to
become deceived. After this has occurred, it might be futile to hope that this
deception can be undone. In this circumstance the provision of interlocutory
relief is essential.
Interlocutory injunctions
Article 50.1 provides that the judicial authorities 'shall have the authority to
order prompt and effective provisional measures … (a) to prevent an infringe-
ment of any intellectual property right from occurring'. The trade-related
context of this remedy is emphasised by the supplementary particularisation in
sub-paragraph (a) that provisional measures may be taken 'to prevent the entry
into the channels of commerce in their jurisdiction of goods including imported
goods immediately after customs clearance'.
2.119
