Available defences in provisional measures: between the enforcement directive and national law

Abstract

The EU Enforcement Directive provides a set of provisional measures to be applied upon request from a right-holder of a particular object of intellectual property. Simultaneously, the EU Enforcement Directive envisages a set of defences for an alleged infringer (defendant) in order to safeguard the balance of the parties. This article discusses available defences for an alleged infringer in the provisional measures as provided by the EU Member States when the norms of the EU Enforcement Directive are transposed. Specifically, the present article not only focuses on the threshold of evidence to be presented by a plaintiff for the application of provisional measures, but also in regard to a set of available motions that could be lodged by an alleged infringer. This article argues that though the EU Enforcement Directive should provide harmonisation of national law in relation to provisional measures (in addition to other civil remedies under that Directive), the currently existing disparities among EU Member States demonstrate that such an aim is far from being achieved. Therefore, application of provisional measures throughout EU depends on the national law and, in the result, its practical outcome varies from one EU Member State to another.