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Problems with delivering a decision on interim injunction

Apr 30, 2019

An interim injunction is an extremely important tool for the protection of intellectual property rights, aimed primarily at the immediate termination of unlawful activities of a third party and a seizure of infringing goods. The provisions of Polish law do not contain a specific regulation on intellectual property rights, therefore the provisions of the Code of Civil Procedure (Civil Code Art. 730 et seq.) apply.

The legal regulation can be considered adequate and sufficient. In practice, however, interim injunction matters encounter difficulties in Poland. Such problems, in one of our cases, concerned a delivery of a decision on granting interim injunction in a patent infringement matter.

According to art. 740 of the Code of Civil Procedure, the provision on securing claims which is to be enforced by a bailiff (this applies above all to the seizure of goods) is served only to the claimant. A delivery of such a decision to the infringer could cause difficulties in enforcement, because the infringer could, for example, hide the goods. A bailiff delivers the decision to the infringer when it starts the seizure. This is a specific regulation as compared with general principles.

In addition, the court grants the enforceability clause ex officio (the clause means that a court order may be enforced). This means that after issuing the order, the court should – without any additional claimant’s motion – deliver the decision on interim injunction with the enforceability clause to the claimant with two additional copies of the order with justification – one for the claimant and the other for the infringer. The latter would be delivered to the infringer by the bailiff. Any doubts in this regard are dispelled by art. 192 of the Ordinance of the Minister of Justice on Rules of Operating of Common Courts (Journal of Laws of 2015, item 2316). The regulation is straightforward.

In the case in question, the court sent the claimant only one copy of the order securing claims (and without the enforceability clause). The claimant had to submit an application for a copy of the order with an enforceability clause and an additional copy of the order for the infringer. In addition, as  it does not result precisely from art. 740 CPC that the bailiff serves the infringer a decision without the clause, the bailiff was of the opinion that a copy of the order with a clause should be delivered to the infringer. The above circumstances delayed the seizure and the claimant was forced to perform a number of activities that were not required because of the obligation of the court to act ex officio.

A practical conclusion is that it is worth citing the applicable provisions on the delivery of the decision on an interim injunction to make the court aware that it has to act ex officio. This may help to avoid delays independent of the claimant.

 

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