One temporary injunctionA temporary injunction, also known as an interim injunction, provisional legal protection or urgent legal protection, is a court order that takes provisional measures to secure legal positions or avert imminent damage until a final decision has been made in the main proceedings. It therefore serves to create a temporary arrangement in order to preserve the status quo or prevent the occurrence of disadvantages.
This is an expedited judicial procedure, which is particularly common in the Trademark law, Competition law and Copyright is applied.
Features of the preliminary injunction
A temporary injunction can only be issued if a Reason for injunction and a Right of disposal are available and No anticipation of the main issue threatens.
Reason for injunction: the particular urgency of a provisional regulation
The Special urgency is a key criterion for issuing a temporary injunction. It means that an immediate court decision is required to prevent a significant disadvantage, damage or the frustration of a claim. Without this urgency, there would be a risk that the normal duration of proceedings in the main proceedings would lead to an irreparable situation. If there is a lack of urgency, the person whose rights have been infringed must bring an action on the merits.
In some areas of law, such as competition law and trademark law, urgency is presumed under certain circumstances, as a continuation of the infringement almost always causes irreparable damage. The applicant then does not have to explain separately why the matter is urgent, but it is assumed that urgency exists. However, the defendant can prove that the matter was not urgent.
Injunction claim: Would the applicant be likely to prevail in the main proceedings?
The Right of disposal is the substantive legal claim that the applicant wishes to enforce provisionally with the preliminary injunction. In the injunction proceedings, an overview is made of whether the defendant would lose on the merits, for example whether there has been a trademark infringement.
No anticipation of the main issue
Differences between preliminary injunction and main proceedings
While the main proceedings aim to bring about a final court decision in a case, the interim injunction serves as a quick means of interim legal protection. It is intended to prevent irretrievable damage from occurring by waiting for the main proceedings.
One of the main differences lies in the presentation of evidence. In the main proceedings, it is comprehensively examined whether the plaintiff's claims actually exist. A complete taking of evidence is carried out. In contrast, the interim injunction only requires a prima facie demonstration of the claims. This means that the applicant does not have to provide full evidence, but only has to demonstrate that a claim is likely to exist. Frequently affidavits for use.
The temporary injunction is usually issued very quickly, often within a few days or even hours, in order to avert an immediate danger. The main proceedings, on the other hand, can drag on for months or even years until a final decision is made. Furthermore, a temporary injunction is provisional and can later be amended or revoked by a decision in the main proceedings.
Typical cases for preliminary injunctions in trademark law
Typical cases in trademark law in which preliminary injunctions are applied for concern the Unauthorized use of a protected trademark by third parties. This regularly involves the use of a trademark-protected name by a competitor, which leads to confusion among customers. Offering counterfeit products bearing a protected trademark can also be grounds for a temporary injunction. This then serves to prevent the sale of such products until clarification in the main proceedings.
Typical cases for preliminary injunctions in competition law
Typical applications for preliminary injunctions in competition law include, among others misleading advertising claims, unfair comparative advertising or the protection against imitation under competition law. An example of this would be a company that makes false statements about the properties of its products in order to gain a competitive advantage. Another example is a targeted attempt to entice customers away from a competitor through the use of deception or pressure. In such cases, an injunction can be obtained to stop the unfair actions immediately and prevent further damage.
Typical cases for preliminary injunctions in copyright law
Typical cases in copyright law in which preliminary injunctions are sought include the unauthorized use of copyrighted works, such as the Unlicensed copying and distribution of texts, images or music. A common example is the unauthorized distribution of digital content via the Internet, for example by File sharing or illegal streaming websites. Another example is the Unlawful use of photographs on a websitewithout the photographer or the rights holder having granted permission to do so.
Strategies for defending against a preliminary injunction
The defense against a preliminary injunction is a complex undertaking. A distinction must be made between the defense before a preliminary injunction is issued and the defense after it has been issued.
Strategies for preventing a temporary injunction
An interim injunction can only be prevented if it is ensured that the court is aware of your version of the facts. This can be done either by replying to the warning letter or by filing a protective letter.
Reply to the warning
It is often useful - but also sufficient - to send your own facts to the rights holder as part of a reply to the warning letter. The most recent case law of the Federal Constitutional Court requires that the defendant be given a fair hearing, even if only by reading his reply. In turn, the applicant must not suppress the document, as otherwise he must fear that the interim injunction will be revoked on the grounds of fraud.
Filing a protective letter
However, it is often better to file a protective letter in the central register of protective letters. A protective brief is an "anticipated statement of defense" in which you can respond to all expected arguments in advance and submit arguments and evidence. The judge who has to decide whether to issue a temporary injunction must look at the register before issuing the injunction and must consider the arguments.
Ways to lift the temporary injunction
If the interim injunction has already been issued, there are many ways to have it lifted.
Here are the most important options:
Contradiction
- Description: The defendant can lodge an objection to the interim injunction for an indefinite period. An objection leads to an oral hearing being scheduled in which both parties can present their arguments.
- Target: Revocation or amendment of the interim injunction by the court.
Appeal
- Description: Following a decision in opposition proceedings, the unsuccessful party may lodge an appeal if the interim injunction has been issued in a judgment. The appeal is lodged with the next higher court.
- Target: Review and, if necessary, annulment of the decision of the court of first instance.
Cancellation due to changed circumstances
- Description: If the circumstances change significantly after the interim injunction has been issued, the defendant can apply to the court to have the injunction lifted or amended.
- Target: Adaptation of the order to the new circumstances or complete revocation.
Application for action on the merits
- Description: The defendant can demand that the applicant files an action on the merits. In this case, the dispute is examined in detail, which can lead to the temporary injunction being lifted or confirmed.
- Target: Reaching a final court decision on the dispute.
Application for annulment due to lack of enforcement
- Description: An interim injunction must be served and enforced within a certain period (one month). If this deadline is not met, the defendant can apply for the injunction to be lifted.
- Target: Revocation of the interim injunction due to the applicant's failure to meet the deadline.
Balancing of interests
Finally, the question of proportionality is of great importance. Courts are obliged to weigh up the interests of both parties. If the injunction would result in disproportionate harm to you, this could be a strong point in your defense. Arguing that the injunction is not necessary to protect the applicant can also be an effective tool.
Reaction to the justified interim injunction
If the preliminary injunction is obviously justified, the defendant should finally settle the matter by submitting a final declaration and avoid further costs.
A final declaration is a declaration made by the defendant after an interim injunction has been issued. With this declaration, the defendant accepts the interim injunction as a final ruling and waives further legal remedies such as an objection or appeal. This makes the interim injunction legally binding without the need for proceedings on the merits. The final declaration serves to end the proceedings quickly and without further legal disputes.
Advantages of a final declaration
- Legal force and clarity: By submitting the final declaration, the interim injunction becomes legally binding, which creates legal clarity for both parties.
- Simplification of procedures: The declaration saves both sides a lengthy main proceedings, which saves time and costs.
- Cost savings: Since no main proceedings are necessary, further legal costs are avoided, which is particularly advantageous for the defendant.
Disadvantages of a final declaration
- Waiver of legal remedies: The defendant waives the right to challenge the interim injunction in court, which can be problematic if he later discovers new evidence or arguments.
- Binding nature of the regulation: The interim injunction becomes final through the final declaration, which means that the defendant cannot demand any further changes or adjustments.
Common mistakes in interim injunctions and how to avoid them
Preliminary injunctions are a powerful instrument in trademark law, competition law and copyright law. However, despite their effectiveness, they can also easily lead to mistakes that make it difficult or even impossible to enforce them. It is therefore important to know and avoid these common mistakes.
A common mistake is the inadequate preservation of evidence. An interim injunction is based on the credibility of the claims, i.e. the applicant must provide convincing evidence. If this evidence is incomplete or insufficient, this may result in the injunction not being granted. It is therefore essential to carefully secure and document all relevant evidence before filing an application.
Another common mistake is the lack of urgency. An interim injunction presupposes that the court considers the case to be urgent. However, if the applicant delays too long in making the application, the court may question the urgency and refuse the application. It is therefore important to act quickly and file the application as soon as possible after discovering the infringement.
Failure to take proportionality into account can also be a fatal mistake. Courts must weigh up whether the interim injunction is justified and whether it does not lead to a disproportionate burden on the affected party. If the injunction would have unreasonable consequences for the defendant, the court could reject the application. Proportionality should therefore always be thoroughly examined and taken into account in the grounds for the application.
After all, it is a mistake to dispense with a carefully determined legal basis. A temporary injunction must be legally well-founded, otherwise you run the risk of it being overturned by a higher court at the latest. This requires a sound knowledge of the relevant laws and current case law. Without these foundations, there is a high probability that the temporary injunction will not be upheld.
By avoiding these common mistakes, applicants can significantly improve their chances of successfully enforcing an injunction. It is advisable to seek the assistance of an experienced lawyer when preparing and submitting the application to ensure that all legal requirements are met.
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