Available Defences for Defendants in the Provisional Measures in Europe: Between Theory and Practice

Abstract

The EU Enforcement Directive provides a set of provisional measures to be applied by a request of a right-holder of a particular object of intellectual property. Simultaneously, the EU Enforcement Directive envisages a set of defences for an alleged infringer in order to safeguard the balance of parties. This article discusses available defences for an alleged infringer in provisional measures as provided by the EU Member States when norms of the EU Enforcement Directive are transposed in conjuncture with the available court practice. Specifically, the present article focuses not only on the threshold of evidence to be presented by a plaintiff for application of provisional measures but also on a set of available motions that could be lodged by an alleged infringer. This article argues that though the EU Enforcement Directive provides balance of interests of both parties in provisional measures as required by the law on intellectual property, the practical implementation of the EU Enforcement Directive in the EU Member States raises significant doubts whether this balance is actually ensured.