Preliminary injunctions in intellectual property law : their premises and the specifics of the proceedings

Bibliogr. s. 138-141

Preliminary injunctions are practically very important in IP disputes. Typically, injunctions of this type prohibit the defendant from continuing alleged infringements for the duration of the trial. There are valid reasons why preliminary injunctions may be essential for right holders, however it cannot be denied that a wrongly granted preliminary injunctions may be equally harmful as a wrongly denied one. Polish law does not provide for any specific provisions on preliminary injunctions in IP cases, although a cursory glance at the relevant provisions of the Copyright Act and the Law on Industrial Property could (misleadingly) suggest otherwise. There are two conditions for granting a preliminary injunction: credibility of the claim and legal interest. The article argues that credibility means the contention that the applicant will win the case on the merits is significantly more probable than the contrary contention that has been made or could have been made by the defendant. Probability must be addressed to all required components of the claim and should be especially high when it comes to the ownership of the allegedly infringed IP right. Legal interest must be understood in terms of irreversible consequences to the applicant, should the injunction not be granted and is in that regard somewhat similar to the concept of 'irreparable harm'. It is further argued that although Polish law seems to be consistent with art. 9 of the Directive 2004/48/EC on the enforcement of IP rights, this compatibility is predicated on the assumption that it is possible to meet the standards established in Art. 3 of the Directive, in particular the requirement of proportionality. Proportionality should involve a global assessment, resembling the UK concept of balance of convenience. Therefore, an EU friendly interpretation of Polish law must distance itself from the prevailing view that proportionality (balancing of interests) can be taken into account only when deciding the scope and manner of a preliminary injunction. Understanding credibility as referring to the future success in the case on the merits allows considering the validity of the allegedly infringed right. When there are serious doubts as to validity, preliminary injunctions should not be granted. The article argues that while deciding PI requests ex parte may be justified in certain circumstances, it may very often backfire, as applicants tend to present a skewed picture of their case. The practice of repeated or parallel identical PI applications filed with different courts should be weeded out as it brings about numerous problems and cannot be supported by a single objectively justified argument. The simplest way to do it would be to reject later applications, invoking Art. 199 of the code of civil procedure. The article concludes with a few suggestions de lege ferenda that could make preliminary injunction proceedings in IP cases (but not only) more effective and at the same time more balanced.