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

Summary/Abstract: Title IV of the Code of Civil Procedure establishes new standards of legal protection by regulating provisional measures in the field of intellectual property rights. They cannot have as their direct object the intellectual creation, but can be established only in connection with it, for the protection of intellectual property rights. The risk of infringement of intellectual property rights, but also the risk of causing irreparable damage can be prevented or remedied only through interim measures, and not through precautionary measures. The interim measure of obtaining additional evidence as to the existence and extent of the infringement imposes an obligation on the parties to be transparent, obliges the defendant to present all evidence under its control which is or may be related to the infringement of intellectual property rights, even if through this he comes to present evidence against his own interests. The right to information allows to obtain information on the production and distribution network of counterfeiting, as well as to identify the mass of counterfeit goods. Thus, third parties who, through no fault of their own, end up having information regarding an illegal act, in which case they may be obliged by a court to present to the injured person the data they have, including the identity of the perpetrator of the wrongful act. The third party will cooperate under the threat that at any time he may acquire the status of perpetrator of the violation against which the preservation of evidence may be ordered, the provisional prohibition of the violation, but also a substantive action taking into account his refusal to comply with the court order, a refusal which is apt to give rise to the judicial presumption that the evidentiary thesis put forward by the applicant – the holder of the infringed intellectual property right – has been proved. The measures to ensure the preservation of evidence are exclusively intended to keep the means of evidence unaltered, to preserve them until the moment of their administration in question, the judicial procedure being finalized by a court decision which establishes concretely which is the measure that preserves as unaltered an evidence, as well as the person who must carry out that measure, the judgment being rendered in contradiction with this person. The bailiff intervenes only in the stage of execution of the respective court decision. Prohibition of infringement of intellectual property rights or temporary cessation of infringement of intellectual property rights is the most important interim measure that must be taken in matters of intellectual property rights in order to preserve the substance of the right and to limit the damage caused to the holder. Only the provisions of the Code of Civil Procedure apply to the conditions of establishment, jurisdiction, judicial procedure, the manner of setting and withdrawing the security, the duration of interim measures. Interim measures may be ordered even before a substantive action is brought before a court, in which case the legislator considered that there should be a time limit on the duration of the measure taken. If so, on expiry of that period, the applicant has not brought an action on the merits, the interim measure shall cease ex lege. Judgment of applications for interim measures in matters of intellectual property rights is judged according to the procedure of the presidential ordinance, without waiving the condition of urgency, verifying only the provisional nature and the non-prejudice of the merits.

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