Preliminary injunctions
Poland
While main proceedings often take years, preliminary injunction proceedings can provide temporary legal protection of the claimant’s interest at 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 preliminary injunction.
Urgency
Urgency is required to obtain a PI decision in cases of non-monetary claims resulting from IP rights infringement (eg a claim to stop the infringement). Polish rules of civil procedure explicitly determine that the PI cannot be issued if the claimant initiates PI proceedings with respect to non-monetary IP rights claims more than six months after the date of becoming aware of the infringement.
Irreparable harm
- Under Polish law, the notion of irreparable harm does not directly apply in the context of PI proceedings, however the claimant needs to demonstrate an interest in obtaining a PI. This prerequisite follows similar logic and requires similar considerations. According to Polish law, a legal interest in obtaining a PI exists when the lack of a PI will prevent or seriously impede the execution of the judgment rendered in the case or otherwise prevent or seriously impede the achievement of the purpose of the proceedings.
Remedies
- The most common remedy is ordering the infringer to cease and desist from the infringement, ceasing to offer, produce, import or export (usually under the threat of penalty). It may also be requested to seize infringing goods from the bailiff.
- If the PI is requested prior to the main proceedings, the court will issue the PI under the condition that the claimant initiates main proceedings within two weeks.
Irreparable harm
- Under Polish law, the notion of irreparable harm does not directly apply in the context of PI proceedings, however the claimant needs to demonstrate an interest in obtaining a PI. This prerequisite follows similar logic and requires similar considerations. According to Polish law, a legal interest in obtaining a PI exists when the lack of a PI will prevent or seriously impede the execution of the judgment rendered in the case or otherwise prevent or seriously impede the achievement of the purpose of the proceedings.
Remedies
- The most common remedy is ordering the infringer to cease and desist from the infringement, ceasing to offer, produce, import or export (usually under the threat of penalty). It may also be requested to seize infringing goods from the bailiff.
- If the PI is requested prior to the main proceedings, the court will issue the PI under the condition that the claimant initiates main proceedings within two weeks.
Evidence and level of proof
- Contrary to the main proceedings, the claimant is not obliged to prove the claim, but to substantiate it and the interest in obtaining the PI. In other words, the trade mark owner should demonstrate its legal title to the trade mark and explain the relevant circumstances of the infringement.
- In trade mark cases, the court, in assessing whether a claim has been substantiated, takes into account the likelihood of the trade mark being invalidated in other pending proceedings. This circumstance is determined based on information from the parties, unless it is known to the court ex officio.
- In principle, the means of proof do not differ from the main proceedings. Any documentation proving the infringement could be helpful. However, as the PI proceedings are considered to be less formalised than the main proceedings, the court may take into account the opinion of the private experts.
Ex parte injunctions
- As a rule, the PI proceedings are inter partes proceedings consisting of the exchange of one to two pleadings. It is up to the court to decide if PI proceedings are ex parte when the circumstances of the case justify that it is necessary for the claimant to obtain a PI immediately. Ex parte injunctions may be issued in cases when the PI has to be executed by a bailiff (eg seizure of the goods).
Serving and enforcing the injunction
- The decision about the PI is served to the parties by the court. The decision is enforceable by the date of issue. In cases when the PI has to be executed by a bailiff (eg seizure of the goods), the PI is served by the bailiff.
Ex parte injunctions
- As a rule, the PI proceedings are inter partes proceedings consisting of the exchange of one to two pleadings. It is up to the court to decide if PI proceedings are ex parte when the circumstances of the case justify that it is necessary for the claimant to obtain a PI immediately. Ex parte injunctions may be issued in cases when the PI has to be executed by a bailiff (eg seizure of the goods).
Serving and enforcing the injunction
- The decision about the PI is served to the parties by the court. The decision is enforceable by the date of issue. In cases when the PI has to be executed by a bailiff (eg seizure of the goods), the PI is served by the bailiff.
Appeal opportunities
- A PI decision may be appealed within one week of the decision being served. The court of the second instance recognises the appeal in a closed session. The appeal court reviews the case on its merits and issues a decision on either rejecting the appeal or upholding the PI decision.