Provisional and protective measures

Provisional and protective measures are decisions made before any judgment on the merits to stop a likely infringement of an intellectual property right, prevent its continuation or secure compensation. The French Intellectual Property Code organises them for each title, in particular in Article L. 615-3 IPC for patents, Article L. 716-4-6 IPC for trade marks and Article L. 521-6 IPC for designs, implementing Article 9 of Directive 2004/48/EC. They operate alongside the general powers of the interim relief judge under Articles 834 and 835 of the Code of Civil Procedure.

Available measures

The court may order, if necessary backed by a penalty payment, any measure intended to prevent imminent infringement or to stop the continuation of allegedly infringing acts, which corresponds to the interim injunction in summary proceedings (référé-interdiction). It may also make the continuation of the acts conditional on the provision of security intended to ensure compensation of the claimant, order the seizure or delivery up to a third party of goods suspected of infringement to prevent their entry into or circulation in commercial channels, award an interim payment and, where there is a risk that damages will not be recovered, order the protective attachment of the alleged infringer’s assets, including the freezing of its bank accounts. These measures may be directed at intermediaries whose services are used to infringe.

Conditions and procedure

The claimant must produce reasonably available evidence showing that infringement is likely or imminent, the court assessing on that occasion whether the challenge to the validity of the title is serious. The measures are in principle taken inter partes, in summary proceedings, but the court may rule on ex parte application where the circumstances require that they not be taken inter partes, in particular where any delay would cause irreparable harm. The court may make the measures conditional on the claimant providing security. The provisional injunction action further requires the claimant to commence proceedings on the merits within a period fixed by regulation, of twenty working days or thirty-one calendar days if longer, failing which the measures are set aside at the defendant’s request, without prejudice to the defendant’s compensation.

Interaction with other instruments

The saisie-contrefaçon follows an evidentiary rather than protective logic, even though actual seizure has a comparable effect. Before the Unified Patent Court, provisional measures follow their own regime, and a potential defendant may file a protective letter in order to be heard before any ex parte measure. No similar mechanism exists in France, but the defendant may apply for the ex parte order to be withdrawn.

Key points

Provisional measures make it possible to obtain quickly an injunction, the seizure of goods, security or an interim payment, on the mere likelihood of infringement. They are fragile: proceedings on the merits must be brought within a short period and the claimant is liable for the harm caused if it fails. Prepare the evidence and the response to the validity challenge before applying to the court, then schedule the writ on the merits as soon as the order is made.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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