Preliminary injunctions
France
A trade mark owner can file for a preliminary injunction through inter partes or ex partes proceedings. An ex parte proceeding may only be initiated where it is necessary to prevent irreparable harm or in cases of extreme urgency. To initiate one of these procedures, the trade mark owner must hold title to the mark in question; a mere trade mark application will not suffice.
Preliminary injunction proceedings can be used to prevent imminent infringements, providing a swift remedy to stop the infringer in their tracks. Seizure of allegedly infringing goods may also be ordered. To the extent the damage to the trade mark owner cannot be seriously challenged, the court may further grant damages on a provisional basis. The court may also impose a security deposit and/or organise security to be taken over the defendant’s assets to secure the recovery of damages when the matter is litigated in main proceedings.
Urgency
- Urgency is not a requirement for obtaining a preliminary injunction, except when ex parte. A preliminary injunction will be granted where the evidence reasonably accessible to the claimant evidences a likelihood of infringement of the claimant's rights or an imminent threat of such infringement.
Remedies
- The court may order an infringer to cease existing or imminent infringing acts (usually under threat of penalty), set up financial guarantees, and take measures to secure recovery of damages. In a preliminary injunction proceeding, the court may only grant an interim injunction, and the trade mark owner must file main proceedings within 20 working days or 31 calendar days as from the date of the decision, whichever the longer.
- The infringer may be ordered to pay damages on a provisional basis to the extent the damage suffered by the claimant cannot be seriously challenged.
Urgency
- Urgency is not a requirement for obtaining a preliminary injunction, except when ex parte. A preliminary injunction will be granted where the evidence reasonably accessible to the claimant evidences a likelihood of infringement of the claimant's rights or an imminent threat of such infringement.
Remedies
- The court may order an infringer to cease existing or imminent infringing acts (usually under threat of penalty), set up financial guarantees, and take measures to secure recovery of damages. In a preliminary injunction proceeding, the court may only grant an interim injunction, and the trade mark owner must file main proceedings within 20 working days or 31 calendar days as from the date of the decision, whichever the longer.
- The infringer may be ordered to pay damages on a provisional basis to the extent the damage suffered by the claimant cannot be seriously challenged.
Irreparable harm
- Only ex parte preliminary injunction proceedings are subject to the prevention of irreparable harm (or urgency).
Ex parte injunctions
- Ex parte injunctions, where the court grants relief without hearing from the opposing party, are available in France under certain circumstances and the initiation of ex parte preliminary injunction proceedings must be authorised beforehand by the court. An ex parte preliminary injunction may be granted if the trade mark owner risks suffering irreparable damage or in cases of extreme urgency.
Evidence and level of proof
- Any means of evidence is admissible in preliminary injunction proceedings. The parties can therefore rely on documentation, witness testimony, expert reports, and any other relevant materials that have been obtained lawfully and are admissible under French procedural rules.
- The standard level of proof required in main proceedings based on the merits is not required in preliminary injunction proceedings: a likelihood of infringement of the trade mark owner's rights may be sufficient for the court to issue a preliminary injunction.
Ex parte injunctions
- Ex parte injunctions, where the court grants relief without hearing from the opposing party, are available in France under certain circumstances and the initiation of ex parte preliminary injunction proceedings must be authorised beforehand by the court. An ex parte preliminary injunction may be granted if the trade mark owner risks suffering irreparable damage or in cases of extreme urgency.
Evidence and level of proof
- Any means of evidence is admissible in preliminary injunction proceedings. The parties can therefore rely on documentation, witness testimony, expert reports, and any other relevant materials that have been obtained lawfully and are admissible under French procedural rules.
- The standard level of proof required in main proceedings based on the merits is not required in preliminary injunction proceedings: a likelihood of infringement of the trade mark owner's rights may be sufficient for the court to issue a preliminary injunction.
Serving and enforcing the injunction
- The preliminary injunction must be served on the alleged infringer in accordance with French procedural rules to become enforceable. Failure to comply with the PI may result in enforcement measures, including penalties being imposed for the non-compliance, provided that such penalties have been awarded by the court.
Appeal opportunities
- Inter partes preliminary injunction decisions may be appealed before the Court of Appeal that has jurisdiction with the Civil Court that has issued the decision. The parties may appeal within 15 days of service of the decision. Importantly, in the case of an ex parte preliminary injunction, the defendant may request the withdrawal of the injunction before the judge who issued it, with no statutory timeframe being attached to such a recourse. Preliminary injunctions are always (of themselves) immediately effective, notwithstanding appeal.