Interim Injunctions
When a company or individual discovers that its Intellectual Property Rights (IPR) are about to be infringed, or are in the process of being infringed, it may be little comfort to know that they can sue the individual for damages. By the time the matter reaches court the damage may already have been done, for example, counterfeit goods may cause irreparable damage to the reputation and distinctive character of the original goods. Therefore the owner can apply to the court at very short notice an interim injunction.
An interim injunction, as opposed to a final injunction, will only last for a certain length of time, usually until the full trial is heard unless the infringing party succeeds in setting it aside or varying it.
One significant advantage of an interim injunction is that if it is needed extremely quickly or if it is vital that it is kept secret from the infringing party, the injunction can be obtained without any notice being given to the infringing party. It is possible in cases of extreme urgency to convene the court at any time, day or night, for the application to be heard. If the judge is satisfi ed that the injunction should be granted without hearing the infringing party's case, the injunction will be granted for a few days. On the expiration of that time there will be a further hearing at which both parties will be heard by the court. The court will then determine whether to renew or discharge the injunction.
When will an Interim Injunction be granted?
- The intellectual property owner must not have delayed in making the application for the injunction.
- The intellectual property owner's claim must be neither frivolous nor vexatious; there must be a serious question to be tried.
- A later award of damages for the infringement would not be an adequate remedy, i.e. if the infringement will cause irreparable damage.
Search and Seizure Orders
In limited circumstances it is possible to obtain a court order which allows an intellectual property owner to enter the premises of someone who is infringing its intellectual property rights in order to:
- Search for documents/articles;
- Examine the documents/articles;
- Remove the documents/articles; and
- Copy the documents/articles.
The court will only make such an Order to prevent the alleged infringing party from destroying evidence which the intellectual property owner needs in order to prove his case.
There are restrictions placed on the order if it is granted to ensure that the search is carried out properly. Only persons named on the order are allowed to attend at the premises and they must be accompanied by an independent solicitor for the duration of the search. This can add significantly to the cost of the search as it may involve several hours or even days of the solicitor's time.
The other party has the right to obtain legal advice before allowing anyone other than the supervising solicitor and the intellectual property owner to enter the premises, but this advice needs to be received within a reasonable time. The other party is not required to allow access to anyone who may gain commercially from anything he may read or see on the premises.
