Despre măsurile provizorii din domeniul proprietăţii intelectuale, de la general la particular
On provisional measures in the field of intellectual property, from the general to the particular

Summary/Abstract: Title IV of Book VI of the Code of Civil Procedure sets new standards of legal protection by regulating provisional measures in the field of intellectual property rights. They cannot be directly concerned with intellectual creation, but can only be established in relation to it, for the protection of intellectual property rights. The risk of infringement of intellectual property rights and the risk of irreparable damage can only be prevented or remedied by provisional measures and not by precautionary measures. The provisional measure of obtaining further evidence as to the existence and extent of the infringement imposes an obligation of transparency on the parties, obliges the defendant to produce all evidence under its control which relates or could relate to the infringement of the intellectual property right, even if this results in evidence against its own interests. The right to information allows to obtain information on the production and distribution network of counterfeit goods and to identify the mass of counterfeit goods. Thus, third parties who, through no fault of their own, come into possession of information relating to an unlawful act can be compelled by a court to provide the injured party with the data they have, including the identity of the person committing the unlawful act. The third party will cooperate under the threat that at any time it may acquire the status of infringer in respect of which preservation of evidence, provisional prohibition of infringement and a substantive action may be ordered, taking into account its refusal to comply with the court's order, which refusal is apt to give rise to a judicial presumption that the evidentiary thesis asserted by the plaintiff – the owner of the infringed intellectual property right – has been proven. The sole purpose of the evidence preservation measures is to preserve the evidence unaltered, to preserve it until it is administered in the case, the judicial proceedings being concluded by a court judgment which specifically establishes which measure preserves the evidence unaltered and the person who must carry out that measure, the judgment being delivered in opposition to it. The judicial executor intervenes only at the enforcement stage of such judgment. The prohibition of the infringement of an intellectual property right or the provisional termination of the infringement of an intellectual property right is the most important provisional measure to be taken in the field of intellectual property rights in order to preserve the substance of the right and to limit the damage caused to the right holder. The provisions of the Code of Civil Procedure are exclusively applicable as regards the conditions of establishment, jurisdiction, court procedure, the manner of setting and withdrawing bail and the duration of provisional measures. Provisional measures may be ordered even before substantive proceedings are brought, in which case the legislator considered that there must be a time limit on the duration of the measure adopted. If, on expiry of that period, the applicant has not brought an action on the substance of the case, the provisional measure shall automatically lapse. The hearing of applications for interim measures relating to intellectual property rights shall be conducted in accordance with the procedure laid down in the order for interim measures, without the requirement of urgency, and shall be governed solely by the requirement that the application be provisional in nature and that it be without prejudice to the substance of the case.

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