Probleme privind apărarea drepturilor de proprietate intelectuală prin măsuri provizorii
Issues regarding the protection of intellectual property rights through provisional measures

Summary/Abstract: Most court decisions confuse the legal regime applicable to the claims of provisional measures for the protection of intellectual property rights, expressly established by art. 979 of the Civil Procedure Code, with the general legal regime applicable to claims of presidential ordinance. The established judicial practice is that the special procedure governing intellectual property rights, established by art. 979 of the Code of Civil Procedure (lex specialis), is „assimilated” by the general legal provisions in the matter of the presidential ordinance (lex generalis). This Study argues that such an interpretation is prohibited by the legal principles specialia generalibus derogant and actus interpretandus est potius ut valeat quam ut pereat, which impose the prior application of the special procedural law. Moreover, the current jurisprudence raises serious concerns regarding the conformity with the scope of Directive 2004/48/EC, which, in its Article 9, provides for a special procedure for the issuing of provisional measures. Article 9 of the Directive is mirrored by the special legal provisions of art. 979 C. pr. civ., applicable only in the field of intellectual property rights (lex specialis).

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