Geography Reference
In-Depth Information
2.120
As mentioned above, a provisional order of particular utility in an intellectual
property context will be the grant of interlocutory injunctions for the purpose of
freezing the status quo until a trial of the merits can take place.
As a matter of practice the interlocutory injunction, although it is only intended
to have a preservative effect, will actually be the basis of the final determination
of parties' rights, as it is very seldom that after the interlocutory hearing, the
defeated party will proceed to the determination of final relief. If an appeal is to
be taken, it will usually be on the issue of interlocutory relief. Provision is made
in Art 50.6 for a defendant to request that provisional measures be revoked 'if
proceedings leading to a decision on the merits of the case are not initiated
within a reasonable period, to be determined by the judicial authority'. Where
such a period is not determined, Art 50.6 prescribes 20 working days or 31
calendar days, whichever is the longer.
2.121
A provisional order, or interlocutory or interim injunction are of particular
utility in an intellectual property rights (IPRs) enforcement context to freeze
the status quo until a trial of the merits can take place. As a matter of practice,
although these orders are intended to have a preservative effect, for the purpose
of avoiding the infliction of uncompensable damage upon a right holder, until
the merits can be decided, in most cases the provisional measures will actually
be the basis of the final determination of parties' rights. In cases of egregious
counterfeiting or piracy the defendant is not likely to appear to oppose the grant
of a provisional order. Even in contested IPR enforcement actions it is very
seldom that after the interlocutory hearing, the defeated party will proceed to
the determination of final relief.
2.122
In the US to obtain a preliminary injunction the applicant must establish '(1)
irreparable harm and (2) either (a) a likelihood of success on the merits, or (b)
sufficiently serious questions going to the merits of its claims to make them fair
ground for litigation, plus a balance of the hardships tipping decidedly in [its
favour]'. 52
2.123
In the UK, until the 1975 decision of the House of Lords in the patent case
American Cyanamid Co v Ethicon Ltd , 53 an applicant for interlocutory relief had
to establish a prima facie case and the balance of convenience lay in favour of
restraining the defendant until the trial. Following this decision the courts in
2.124
52
Monserrate v NY State Senate , 599 F.3d 148, 154 (2d Cir. 2010). Applied most recently in Louboutin v Yves Saint
Laurent America, Inc. , No. 11 Civ. 2381 (VM), United States District Court, S.D. New York, 10 August, 2011.
53
[1975] RPC 513.
 
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