21 October 2020Jurisdiction reportsMichiel Rijsdijk and Marlies Wiegerinck

Netherlands jurisdiction report: The allure of interim injunctions

The Dutch judiciary system offers the possibility to obtain legal measures in urgent matters, following interim injunction proceedings. To apply, one has to have an urgent interest in obtaining interim relief. In practice this does not constitute a hurdle for IP infringement cases—an imminent or an ongoing breach is usually enough to establish urgency.

Decisions in preliminary proceedings are delivered on a short timescale since the length of the procedure as a whole is shorter than in other proceedings. The claimant first asks the court for a date for an oral hearing and serves the writ.

The writ is mostly answered with the submission of exhibits in reply and sometimes a written statement of defence is submitted. Otherwise, parties head directly to the oral hearing and no further written rounds are held.

The judge has looser justification requirements, claims with a permanent character, such as a declaration of (non)-infringement, are not admissible and the normal rules of evidence do not apply. A balance of the parties’ interests in relation to the nature of the case takes place.

These compromises are justified by the preliminary nature of the procedure, since interim injunction proceedings exist in relation to the main proceedings.

For IP cases it serves mainly as a means to obtain a preliminary injunction which, in theory, needs to be followed up by a more thorough evaluation during the main proceedings, in which the normal rules of evidence and justification requirements apply.

Writing on the wall

This however does not correspond with reality: most of the interim injunction proceedings are never followed up by main proceedings.

Once an interim injunction is obtained, which may have a pan-European effect, a defendant needs to comply due to the provisional enforceability. The infringement has to be ceased, causing a party to seek alternatives, use other techniques, rebrand, etc.

The interim decision itself therefore serves as a powerful piece of leverage during the settlement negotiations that usually follow the decision. The unsuccessful party can usually see the writing on the wall and, moreover, it has already had to invest in order to comply with the interim injunction.

In recent years this practice has been further enabled by the doctrinal developments of ancillary claims within interim proceedings concerning IP infringements, such as claims to provide a report with supplier and reseller details, and sales figures.

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