Geography Reference
In-Depth Information
British and Commonwealth countries have ascertained merely whether there is
a 'serious question to be tried'.
54
This standard was considered to fall short of
requiring proof of a prima facie case and to be more in the nature of not being
'hopelessly optimistic'.
55
Greater significance under the American Cyanamid
standard is placed upon issues of convenience. Where the damage claimed will
easily be compensable by way of damages, the court may lean against the grant
of injunctive relief. This will particularly be the case where the grant of an
interlocutory injunction will have a significant impact upon the business of the
defendant. On the other hand, where the claimed infringement may be likely to
have a significantly deleterious impact upon the business of the applicant, the
court may consider the inconvenience to the respondent to be accommodated
by an undertaking by the applicant or by the payment by it of monies into court
in anticipation of compensation or costs being granted to the respondent.
2.125
Grant of all injunctive relief in common law countries is discretionary. A factor
that is taken into account in disqualifying relief is the conduct of the defendant
and even a small delay, without reasonable grounds, in seeking the freezing of
the status quo may debar an applicant from relief.
Final injunctions
As mentioned above, it will be usual that allegedly infringing conduct will be
restrained by interlocutory relief. Although the courts are only obliged to
ascertain whether there is a serious question to be tried, in practice these cases
have begun to approximate final deliberations on the merits. Article 44 permits
the judicial authorities 'to order a party to desist from infringement, inter alia, to
prevent the entry into channels of commerce in their jurisdiction of imported
goods that involve the infringement of an intellectual property right'.
2.126
2.127
The remedy of injunction is usually granted on a discretionary basis. Among the
factors considered are whether: (a) damages provides an adequate remedy; (b)
the order will require constant supervision by the court; (c) the applicant has
engaged in some disentitling conduct, such as its own infringing activity; and
(d) the applicant has delayed in seeking its remedy or has acquiesced in the
respondent's conduct.
2.128
Another discretionary ground which is contained in Art 44 is that Members are
not obliged to accord the remedy of injunction 'in respect of protected subject
matter acquired or ordered by a person prior to knowing or having reasonable
54
Eg in Australia,
Beecham Group Ltd v Bristol Laboratories Pty Ltd
(1968) 118 CLR 618 at 622-3 applied most
recently in
Apple Inc. v Samsung Electronics Co
.
Limited
[2011] FCA 1164.
55
Mothercare Ltd v Robson Books Ltd
[1979] FSR 466.
