26 April 2017Jurisdiction reportsDavide Aldo Falzoni

Effective enforcement remedies

The interlocutory injunction is a very effective remedy because it can be obtained without initiating the main proceeding. It can also include the definitive removal of the suspected infringing products from the channels of commerce.

According to article 132, Italian Industrial Property Code (IPC), the interlocutory injunction will remain in place if the main proceeding is not initiated by the rights owner, because the injunction anticipates a possible ruling from the main proceeding.

However, the interlocutory injunction may be obtained only if the owner demonstrates with a reasonable degree of certainty that the IP right is being infringed and that the right is valid.

To this end, article 129, IPC requires the IP owner to describe the products suspected of being infringed.

Before the main proceeding, a preliminary opinion on the activity of the suspected infringer with respect to the same right may be obtained by the rights owner. This opinion can be used as evidence for the main proceeding, but also in order to obtain the same precautionary injunction remedy.

The preliminary opinion can be obtained through the so-called preventive counselling procedure under article 128, IPC, which is a preventive procedure in which the suspected infringer can participate.

Italian Procedural Civil Code

Article 128 makes reference to article 696bis, Italian Procedural Civil Code (IPCC), which gives the ability to request a preventive counselling proceeding in order to obtain an evaluation of credit rights arising from a contractual obligation or illegal act.

For example, in the case of patent rights, the credit rights can be considered when requesting compensation for patent infringement activities. Therefore, above all,

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