Preliminary injunctions
Netherlands
While proceedings on the merits often take years, preliminary injunction (PI) proceedings can resolve trade mark disputes quickly and for relatively moderate costs. The procedural rules have not been harmonised across the EU and there are notable differences when it comes to the legal requirements for obtaining a PI.
In the Netherlands, PI proceedings are a potent tool for trade mark owners to quickly stop infringements. Despite their temporary nature, PIs often pave the way for a lasting resolution of conflicts (eg through subsequent negotiations), especially when a pan-EU injunction can be claimed against a Dutch defendant.
Urgency
A PI proceeding may be started in all urgent cases, where an immediate injunction is required considering the interests of the parties. Several conditions apply:
- A case must be suitable for judgment in a PI proceeding. If, for example, sufficient understanding of the facts cannot be obtained within the limited scope and time frame of a PI proceeding, a case is deemed unfit.
- More importantly, urgency must be present. Urgency is present if a decision in proceedings on the merits cannot be awaited. Whether or not this is the case is determined by weighing the interests of the parties. Urgency is usually assumed for injunctions seeking to put an end to an (alleged) ongoing infringement or for an imminent infringement.
- Claimants will usually have a lack of urgency if they did not act swiftly enough after obtaining knowledge of the infringement. There are however no strict time limitations in this regard.
- Furthermore, there must be an urgent requirement for preliminary relief. The requested decision must be a PI anticipating the decision in proceedings on the merits.
Remedies
- PIs are limited to specific types of claims, primarily those seeking injunctive relief. Because PIs anticipate a decision in proceedings on the merits, all claims must be reversible. Claims related to damages, for instance, fall outside the scope of PIs. Damages can be claimed in the proceedings on the merits, which can be started after (or at the same time as or instead of) the PI proceedings.
Evidence and level of proof
- The statutory rules of evidence do not apply to PI proceedings. Any means of evidence is admissible.
- The judge is free to decide whether sufficient allegations have been made and whether the facts have been established sufficiently to either grant or deny the relief sought.
Remedies
- PIs are limited to specific types of claims, primarily those seeking injunctive relief. Because PIs anticipate a decision in proceedings on the merits, all claims must be reversible. Claims related to damages, for instance, fall outside the scope of PIs. Damages can be claimed in the proceedings on the merits, which can be started after (or at the same time as or instead of) the PI proceedings.
Evidence and level of proof
- The statutory rules of evidence do not apply to PI proceedings. Any means of evidence is admissible.
- The judge is free to decide whether sufficient allegations have been made and whether the facts have been established sufficiently to either grant or deny the relief sought.
Ex parte injunctions
Ex parte injunctions are issued without a hearing and without the defendant being heard. The matter must be so urgent that delay would cause irreparable harm. Several conditions apply:
- Urgency of such extent that a decision in PI proceedings cannot be awaited. In practice, this means that the infringement must be evident and recent.
- Irreparable harm if a decision in IP proceedings is awaited.
- In practice, ex parte injunctions are only granted in exceptional cases, for example if products will be offered during a conference, or when the offering of products is clearly limited to a very specific time period, for example discounts or sale of left over stock during a short period of time.
After the ex parte injunction is issued, a revision of the injunction may be requested in short summary proceedings.
Serving and enforcing the injunction
- A decision will usually be given within two weeks of the hearing. The decision is sent to (attorneys or representatives of) the parties. A decision needs to be served by a Dutch bailiff in order to be enforceable against the losing party. Judicial penalties that are forfeited after service of the decision will be for the benefit of the winning party.
Appeal opportunities
Once the PI is issued, the respondent has several options at their disposal. They can accept the PI by not filing an appeal, start proceedings on the merits, or file an appeal.
- A case in proceedings on the merits may be started. In these main proceedings, the judge treats the case as if it were new and may reach a different verdict. Decisions in proceedings on the merits are deemed to overturn the merits of a decision in PI proceedings, although it will not annul the decision in PI proceedings (which can only be done on appeal in PI proceedings). Already forfeited judicial penalties as a result of violation of a PI decision will therefore still be due even if the decision on the merits is different.
- Filing an appeal against the PI is a good option if it can be argued that the PI should not have been issued (eg because the matter was not urgent or because there was no infringement).