Preliminary injunctions
UAE
Preliminary injunctions (PI) or precautionary measures in the UAE serve as a crucial legal remedy for trade mark owners to prevent or cease ongoing or imminent infringement of their rights. These injunctions are designed to offer a temporary solution pending the resolution of main proceedings.
Urgency and irreparable harm
Obtaining a PI is not only dependent on having an underlying claim for injunctive relief, but also on meeting the essential criterion of 'urgency'.
The concept of 'urgency' is integral to the petition for a PI. The Judge of Urgent Matters evaluates the urgency and potential irreparable harm that could result from the alleged infringement. The necessity for immediate action, such as preventing the entry of infringing goods into commerce or preserving evidence, highlights the petition urgency.
Unlike in several western jurisdictions, where a presumption of urgency exists in trade mark infringement cases, the UAE Trademarks Law requires the petitioner (who must be the holder of the trade mark rights) to substantively demonstrate the urgency and the potential or imminent harm that could result from a delay in judicial intervention. Further, in line with Article 47 of the UAE Trademarks Law, the petitioner is required to present:
- evidence establishing their rights to the trade mark in question
- evidence indicating that an infringement of these rights has either already occurred or is imminent, and
- detailed information necessary for enacting the precautionary measures, including a detailed identification of the goods involved in the infringement, as well as any materials, tools, and equipment that have been or are likely to be used in the infringement.
Remedies
- The scope of remedies available through PIs (or precautionary measures) include actions aimed at preventing further infringement, such as seizing goods or materials or prohibiting the distribution of infringing goods. These measures are explicitly designed to mitigate the impact of infringement on the trade mark owner's rights pending a final judgment. Remedies also include the preservation of evidence pertinent to the infringement.
- Claims related to damages fall outside the scope of precautionary measures and such claims need to be addressed in the main proceedings. The main proceedings should be initiated within 20 days following either the date the order for the provisional measure was issued, or the date when a rejection decision was issued regarding any grievance lodged by the defendant against the provisional measure.
Evidence and level of proof
- The UAE courts require the applicant or petitioner of a precautionary measure petition to present evidence suggesting an infringement has occurred or is imminent. This evidence must be compelling enough to justify the precautionary measures, though the level of proof is not as strict as in main proceedings, where judges require definitive proof pertaining to all relevant facts and will not entertain any allegations or arguments unless the plaintiff establishes a genuine and present interest in the matter. For precautionary measures, it is sufficient for the petitioner to show potential interest, as long as the aim is to prevent a forthcoming threat or to confirm a right at risk of becoming unprovable during the dispute.
- The law allows for the imposition of precautionary measures without the necessity of hearing the other party, particularly in situations where there is a risk of evidence being destroyed or an irreparable harm being caused, which highlights a flexible approach towards evidence evaluation. However, the Judge of Urgent Matters has the authority to request a financial or bank guarantee from the petitioner to safeguard the interests of the adverse party should the applicant's petition be unfounded.
Ex parte injunctions
- UAE law permits the issuance of injunctions without the presence (ex parte) of the defendant, especially in cases where delay could result in irreparable harm or the loss of evidence. This provision aims to provide immediate relief to the aggrieved party in such urgent circumstances.
- The defendant has the right to challenge the injunction through submitting a grievance within 15 days of notification addressed to the president of the court that ordered the injunction. This procedure ensures a judicial balance between providing swift relief and preserving the defendant's rights. Following this, the court's president will examine the grievance and determine whether to uphold, modify, or cancel the injunction.
Serving and enforcing the injunction
- Following the issuance of the injunction order (precautionary measure order), the defendant must be informed about the injunction without any delay, and ideally, immediately after its issuance. In certain cases, where immediate execution is necessary, notification can coincide with or immediately follow the execution of the order.
- In practice, the notification is served on the authority or entity, such as customs or free zone authority, that is responsible for controlling the seized or attached goods/items.
Ex parte injunctions
- UAE law permits the issuance of injunctions without the presence (ex parte) of the defendant, especially in cases where delay could result in irreparable harm or the loss of evidence. This provision aims to provide immediate relief to the aggrieved party in such urgent circumstances.
- The defendant has the right to challenge the injunction through submitting a grievance within 15 days of notification addressed to the president of the court that ordered the injunction. This procedure ensures a judicial balance between providing swift relief and preserving the defendant's rights. Following this, the court's president will examine the grievance and determine whether to uphold, modify, or cancel the injunction.
Serving and enforcing the injunction
- Following the issuance of the injunction order (precautionary measure order), the defendant must be informed about the injunction without any delay, and ideally, immediately after its issuance. In certain cases, where immediate execution is necessary, notification can coincide with or immediately follow the execution of the order.
- In practice, the notification is served on the authority or entity, such as customs or free zone authority, that is responsible for controlling the seized or attached goods/items.
Appeal opportunities
- Defendants can file a grievance against a precautionary measure within 15 days of notification regarding the injunction order. The grievance must be addressed to the president of the court that issued the order. The court president then has the discretion to either uphold the order, modify it, or cancel it entirely, based on the merits of the grievance.
- The main proceedings should be initiated by the claimant within 20 days following either the date the order for the provisional measure was issued, or the date on which a rejection decision is issued regarding any grievance lodged by the defendant against the provisional measure.