Polish law provides a legal measure of granting preliminary injunction. This measure also applies to intellectual property cases, with additional regulations introduced by the legislator for such category of cases.
Preliminary injunction is aimed at shaping the relations between the plaintiff and the defendant – for the current time of the proceedings – in such way that the interests of the party asserting its rights are duly secured. At the same time, to keep the appropriate balance, the provisions of the Polish Code of Civil Procedure (CCP) stipulate that the opposing party may not be burdened by a court decision beyond the need.
Requirements for filing PI motion
According to Article 7311 § 1 of the CCP, the requirements for granting preliminary injunction consist in demonstrating that the claim and legal interest are probable. At this early stage of the proceedings it is not necessary to provide evidence beyond a reasonable doubt. For example, in patent infringement cases, it should not be necessary to take expert witness evidence, which is used to prove infringement if the case requires special technical knowledge (which is the case of almost all patent infringement cases).
Legal interest – the second requirement mentioned by CCP – exists when the lack of preliminary injunction would prevent or seriously impede the enforcement of the judgment rendered in the case, or otherwise prevent or seriously impede achievement of the purpose of the proceedings in the case.
In disputes that do not involve financial claims, the court may define the parties' mutual relations for the duration of the proceedings. The ways of securing non-financial claims are specified in the CCP. In practice, the most common request in such cases is to oblige the opponent to refrain from a certain action. Usually this is to refrain from marketing the goods that, for example, bear the disputed designation or are supposed to contain the features of the patent claims. On many occasions, a seizure of goods is requested within the motion for preliminary injunction. The seizure is to be performed by a court enforcement officer. The applicant may be present while these actions are undertaken.
Time limit
What is important, the Polish legislator, exclusively for intellectual property cases, introduced a time limit for making the relevant request. According to Article 755 § 23 of CCP, the motion for preliminary injunction should be filed within six months from the date on which the applicant learned of the infringement. This provision does not provide for exceptions, thus if this deadline is not met, the court is obliged to dismiss the motion. In practice, the starting day of this 6-moth period is difficult to determine, and there is no unified standpoint as to from what specific moment it should be calculated. Therefore, the intellectual property right holder should decide as soon as possible whether they intend to apply for preliminary injunction.
Nonetheless, the motion for preliminary injunction can be filed before the initiation of the main proceedings or in the course of such proceedings - but the deadline for filing the motion should be met in either case.
Other important factors
In recent years Polish legislator introduced a principle requiring the court to take into account other pending proceedings when ruling in the given case. Under Article 7301 § 11 of the CCP in intellectual property cases, the court "shall take into account the likelihood of invalidation of an exclusive right in other pending proceedings when assessing whether a claim is probable. This circumstance shall be determined based on information from the parties, unless it is known to the court ex officio". In addition, the legislator imposed an obligation on the person requesting preliminary injunction to inform in the court of the request whether the said proceedings are pending (Article 736 § 5 of CCP).
What is also interesting, the CCP provides that in intellectual property cases the opposite party should participate in preliminary injunction proceedings. Such regulation is a novelty and it is not applied in other cases relating to other legal branches, where the opponent is not informed of the filed motions . However, there are exceptions to the mentioned rule. Namely, according to Article 755 § 22, the court is not obliged to hear the opposing party if it is necessary to decide on the motion immediately, and also if the future decision is fully executed by the bailiff.
The appeal proceedings
The order granting injunctive relief may be appealed within 7 days of its delivery together with reasoning to the party. The complaint is recognized by the court of second instance. In intellectual property cases in the first instance, cases are recognized by specialized courts within district courts. Poland currently has five intellectual property courts which are located in: Warsaw, Katowice, Gdańsk, Lublin and Poznań, with two second instance courts in Warsaw and Poznań.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
