When will injunctive relief be available?
During injunctive proceedings, the right holder aims to order a party to desist from an infringement of a patent right, a trademark right, a copyright, or another IP right in the future.
The basis for an injunction is the existence of a threat that the defendant is about to violate the rights of the plaintiff. This threat has to be demonstrated by the plaintiff to the satisfaction of the court. It is generally easy to prove such a threat if the defendant has previously infringed the moving party's rights in the past. Such an existing violation normally will be deemed sufficient proof of likely repetition. In other circumstances, when the defendant has not yet committed a violation of the plaintiff's IP rights, the plaintiff has to reasonably assert to the court that an infringement is imminent. National laws provide the various elements that properly identify such a danger to the court.
According to the TRIPS Agreement (Art. 44 (1)), Member States are allowed to provide that an injunction may not be ordered for infringements undertaken prior to knowing or having reasonable grounds to know of the infringing nature of the action. In such cases, a cease and desist letter will first have to be sent to the infringer who subsequently will no longer be in a position to plead unknowing behavior.
When a defendant does not comply with an injunction that has been issued, a court order compelling compliance can be handed down upon application of the plaintiff. Normally, a fine, or, rarely in practice, imprisonment, is ordered against the defendant for breaching the injunction. Called civil contempt in common law systems, this principle exists in most legal systems.
For a court to identify the violation of an injunction, it is essential that the defendant's infringing act in contravention of the court order be described precisely in the original plea for injunctive relief. In practice, after an injunctive order, many defendants do not modify their activities entirely, but only as far as necessary to satisfy the minimum threshold of the court order. In these situations, it is up to the court to determine whether this new act is in compliance with the injunction, or still constitutes an infringing act, and as such could therefore be considered an act of civil contempt.