Case number: C04228412 (PAC-1797/2012)
Court: The Chamber of Civil Cases of the Supreme Court of the Republic of Latvia
Parties: SIA „Elizabete Hotel” v. SIA „Elizabetes centrs”
Date: 27 August 2012
IP RIGHT(S) Trade marks
NORMS Art. 25010(1) Latvian Civil Procedure Law.
The claimant brought a claim to the court for termination of an infringement of his registered trade mark rights. At the same time the claimant asked for preliminary measures to be applied till the case is decided on its merits – for a preliminary injunction to prohibit the defendant the use of the sign „ELIZABETE HOTEL”, including the prohibition to use the sign as the name of the defendant’s hotel.
DAMAGES AWARDED -
Regarding application of a preliminary injunction, Article 25010(1) of the Latvian Civil Procedure Law provides that if there are grounds to believe that the rights of an intellectual property holder are being infringed or may be infringed, a court on the basis of a reasoned application from the plaintiff may take a decision on the application of a preliminary measure.
The grounds for application of the preliminary injunction have been provided insufficiently in this Article. That had led to some serious application problems in the court practice before.
In the course of interpretation of the above-mentioned legal norm the Court considered the discretion of the court provided for in this norm, the general legal principles of proportionality and equity, the nature and the potential consequences of this remedy, and derived from that the preconditions for establishing the grounds for application of a preliminary injunction – the so called four factor test.
Namely, there are four questions to be considered in order to establish whether there are sufficient grounds for application of a preliminary injunction (or when an application for revocation of an applied injunction is received – whether there are sufficient grounds for keeping the injunction):
- whether there are sufficient grounds to believe that the plaintiff is the intellectual property right holder;
- whether there are sufficient grounds to believe that the plaintiff’s intellectual property rights are being infringed or will be infringed;
- whether there are sufficient grounds to believe that the infringement causes or will cause irreparable harm to the plaintiff unless a preliminary injunction is applied;
- whether the balance of convenience favours the grant of the preliminary injunction.
The Court also established that delay in bringing a claim to the court and delay in asking for a preliminary injunction (almost two years had passed from the start of the potential infringement in this case) could be indicative of the fact that there had not occurred such irreparable harm for the plaintiff’s interests that would call for an immediate correction (where it would not be possible to wait till the case is seen on the merits).
In this decision the Court establishes the grounds for application a preliminary injunction – the so called four factor test. For this case the Court also particularly considers the role of delay in bringing an application for the preliminary remedy to the court. Since this Court decision courts keep to the above-mentioned four factor test, for other intellectual property fields as well.