Preliminary injunction in competition law and trademark law
In addition to warning letters, preliminary injunctions are a key instrument for enforcing claims for injunctive relief, disclosure, or destruction if there is no response or an inadequate response to a warning letter. This is an effective way to prevent infringements.
Examples of where preliminary injunctions are used in the field of industrial property rights include:
- Trademark law: When a brand name or logo is used without permission.
- Competition law: When a competitor advertises using misleading or false statements.
- Copyright law: When photos, texts, or designs are published or distributed without consent.
What is a temporary injunction?
A preliminary injunction is an urgent court decision. The court often decides within a few hours or the next day.
It is a common procedure, particularly in competition and trademark law, to quickly stop legal violations (e.g., no more advertising with the trademark).
The preliminary injunction is initially only a provisional measure. Nevertheless, a legal dispute can be ended if, for example, the opponent issues a so-called final declaration and thus accepts the decision as final.
What are the requirements?
For a court to issue a preliminary injunction, two conditions must be met:
- Right to injunctive relief: There must actually be a violation of competition law or another legal violation.
- Grounds for injunctive relief: There must be particular urgency, requiring swift action.
The applicant must therefore convincingly demonstrate and prove to the court that a legal violation has occurred and that it must be stopped immediately.
From application to final declaration
Anyone wishing to obtain a preliminary injunction must file an application with the competent regional court. The court then examines whether the requirements for issuing the requested injunction are met. The decision can be made either without prior hearing of the opposing party or after a brief statement.
If the court concludes that the application is justified, it issues a preliminary injunction. This is first sent to the applicant, who must then ensure that it is served on the opposing party. The injunction takes effect immediately upon service.
If, on the other hand, the court considers the application to be unfounded, it can either reject it directly by order or set a date for an oral hearing. At this hearing, the opposing party is also heard and has the opportunity to present and substantiate further arguments.
Subsequently, the so-called final proceedings can be initiated. In this case, the applicant requests the opposing party to accept the preliminary injunction as a final settlement by means of a final declaration. Similar to a warning letter, the aim is to avoid further legal proceedings (in this case, the action or main proceedings) as far as possible.
What are the arguments for and against a preliminary injunction?
Advantages of a preliminary injunction
- Claims can be enforced quickly.
- Immediate protection in the event of trademark or competition law infringements.
- If the preliminary injunction is granted, the opposing party must bear the court and attorney's fees.
Disadvantages of a preliminary injunction
- If the application is rejected, the court costs and attorney's fees are borne by the applicant.
- If the opposing party files an objection, the proceedings may be prolonged by an oral hearing and incur additional costs.
- If a preliminary injunction is granted, the respondent may also demand that the applicant file a main action within a certain period of time.
Received a temporary injunction – what should you do?
It is important to act immediately upon receipt of a preliminary injunction and to carefully review the injunction. First, it should be clarified whether the facts presented are correctly stated and whether there has actually been a violation of competition or trademark law.
Even if you want to apply for a preliminary injunction, it is important to act quickly, as in some courts no more than four weeks may elapse between the first knowledge of the infringement and the filing of the application after a warning letter has been issued.
As lawyers and specialists in intellectual property law, we can help you choose the right strategy. One key question is whether a final declaration should be submitted. We provide comprehensive advice on the opportunities and risks involved, with the aim of avoiding unnecessary costs and achieving the best possible solution for your company.
