STOP -- FOR THE TIME BEING -- IN THE NAME OF THE LAW

“Interim Injunctions in Intellectual Property Cases” was the title of the lecture given last night at the Institute for Advanced Legal Studies, under the auspices of the Society for Advanced Legal Studies. The IPKat was in attendance. Speakers Simon Cohen and Nigel Stoate, both litigators with Taylor Wessing, gave a sparkling review of current British practice and then contrasted it with the pre-trial relief available in France, Germany and Belgium. Starting from the American Cyanamid principles, Simon Cohen explained how the prime consideration was whether the irreparable loss suffered by the IP owner if interim relief were not granted was greater or less than the irreparable loss suffered by an alleged infringer if that relief were granted. He described the “clear the path” approach, adumbrated by Mr Justice Jacob (as he then was) and subsequently approved by the Court of Appeal in SmithKline v Apotex . By this approach, the fact that the defendant knew the claimant had a hostile intellectual property right but didn’t try to remove it (through revocation or cancellation proceedings) or escape it (through a declaration of non-infringement) was itself a ground upon which interim relief should be granted. Nigel Stoate then reviewed practice in other jurisdictions, notably saisie-contrefaçon in France and saisie description in Belgium. The disappointingly small audience of brave souls who had fought their way through a blizzard to reach the lecture were then treated to a short but pleasurable Q and A session, from which emerged the consideration that interim injunctions seem to be sought less frequently these days now that applications for summary judgment have become more popular.

The IPKat was most interested in the "clearing the path" approach to interim relief, but he noticed that it only seems to have been employed in the UK in patent cases. Would this doctrine be of (i) applicability and (ii) utility in interim relief proceedings involving other IP rights, especially copyright and trade marks, he wonders?

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Clear the path here