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General
- What kind of claims are subject to PIs?
- Is any prior, out of court action (e.g. a warning letter) required before filing an application for a PI?
- Does an application for a PI need to be filed within a certain deadline?
- How quickly can PIs be obtained?
- Can PI proceedings be suspended?
- Which kind of evidence is required in PI proceedings?
- Ex parte preliminary injunctions
- Costs and Security
- Remedies
- Enforcement
- Damages
- Main proceedings
jurisdiction
General
1. What kind of claims are subject to PIs?
Claims for cessation and abstention, information, confiscation.
2. Is any prior, out of court action (e.g. a warning letter) required before filing an application for a PI?
No.
3. Does an application for a PI need to be filed within a certain deadline?
Although urgency is not an express condition, judges take it into account when assessing the proportionality of measures.
4. How quickly can PIs be obtained?
A few days to a few weeks, depending on the degree of urgency.
5. Can PI proceedings be suspended?
No more than any other proceedings. There is no specific ground of suspension.
6. Which kind of evidence is required in PI proceedings?
The applicant shall provide evidence “making it likely” that the applicant's rights are being infringed or that the infringement is imminent. The evidence shall be “reasonably accessible”.
Ex parte preliminary injunctions
7. Is it possible to obtain an ex parte PI (without hearing the counterparty)?
Yes, such proceedings shall be justified by the urgency of the situation.
Costs and Security
8. Are the costs recoverable from the counterparty in the event the PI is issued?
The applicant may obtain the reimbursement of its legal fees (in whole or in part).
9. Is the applicant required to provide a security deposit when requesting a PI?
No. The Courts can, at the request of the defendant, make the enforcement of the PIs subject to the provision of a security deposit by the applicant. In practice, defendants rarely make such a claim. Furthermore, the Courts tend to reject this kind of request when the applicant is in good financial health.
Remedies
10. Is it possible to appeal or file other remedies against a PI? If so, does this suspend the effect of the PI?
Yes, the defendant or the applicant may decide to appeal the decision. The appeal proceedings do not suspend the effect of the PIs.
11. How long do the proceedings to challenge a PI usually take?
Patent: between 1 and 1.5 years
Trademark/Design/Copyright: between 6 and 12 months
Enforcement
12. When does a PI become effective?
This is determined by the judge on a case-by-case basis. Most of the time, once the decision has been served by the applicant.
13. What legal measures are available to enforce compliance with a PI?
The applicant may request that the measures be ordered under penalties.
Damages
14. Can the counterparty seek damages if the PI is later found to be unjustified and cancelled?
Judgments are always enforced “at the risk and peril” of the party seeking for the enforcement. The counterparty may therefore seek for damages without being required to prove fault on the part of the applicant . Thus, as long as the applicant has served the decision, the applicant must compensate the damage caused by the PIs from the date of service.
Main proceedings
15. Are further proceedings on the merits required in order for the court to grant a final injunction?
If the applicant does not initiate an action on the merits in 20 business days period, or 31 calendars days period if this period is longer, from the date of the decision, the measures will become invalid, without prejudice to any damages that may be claimed by the defendant.
