Preliminary injunctions can be a powerful tool for rights holders, allowing them to quickly minimise the negative impacts of infringement on their business operations. Therefore, it is essential to understand the procedural framework governing such measures in Poland. The following overview summarises the key aspects of applying for a preliminary injunction in intellectual property cases.
Applying for a preliminary injunction
A rights holder may apply for a preliminary injunction (PI) either before initiating or during proceedings concerning infringement of intellectual property rights.
A strict urgency requirement applies in either case. An application for a PI must be filed no later than six months from the date the rights holder became aware of the infringement. Applications filed after this period are rejected.
Where an application for a PI precedes the commencement of the main proceedings, the court will set a maximum deadline of 14 days for filing the statement of claim. Failure to observe this deadline results in the automatic lapse of the injunction. In practice, this means that the rights holder should be prepared, or nearly prepared, to pursue the main action at the time of filing the PI application.
In principle, PI proceedings in Poland are currently conducted inter partes, meaning that the alleged infringer is given the opportunity to be heard, usually through the submission of a written plea, before an injunction is granted. There are two exceptions to this rule. One is provided for in cases requiring immediate intervention to prevent irreparable harm or the destruction of evidence. The second is provided for, where, due to the form of the preliminary injunction, the injunction is fully enforced by a bailiff, eg, in case of the seizure of goods.
Polish law does not explicitly regulate the issue of protective or warning letters. This means it is up to the court to decide whether these letters are first registered and then considered when a decision is made to grant a preliminary injunction. Under the former regime, submitting a warning letter was regarded as good practice to facilitate inter partes proceedings. However, with the new rules on infringer participation in the proceedings, this is less of a factor in the current procedural framework.
The court may also, at its discretion, order the rights holder to provide a security deposit. This mechanism safeguards the alleged infringer’s interests, given that a PI is granted based on prima facie substantiation rather than full proof. Should the claim ultimately prove unfounded, or the main proceedings be discontinued on procedural grounds, the deposit may serve to compensate the respondent for losses incurred because of an unjustified injunction.
Evidence required
To obtain a PI, the rights holder must substantiate the existence of the claim. This does not require full proof of infringement; instead, the standard is one of plausibility. Substantiation constitutes a simplified evidentiary mechanism, intended to speed up proceedings and to relieve the applicant from strict evidentiary rules. Nevertheless, reliance solely on the applicant’s own assertions or subjective assumptions is insufficient.
An interest of this nature is established where, in the absence of the injunction, the enforcement of any future judgment would be rendered impossible or substantially hindered, or where the fundamental purpose of the proceedings would otherwise be compromised. Examples include situations involving the large-scale market entry of infringing goods or irreversible price erosion caused by generic products.
Rights holders rely on a wide range of materials to demonstrate compliance with these requirements. These may include sample purchases, product photographs, or screenshots of online offers. Additionally, while the preliminary proceedings framework prevents the court from relying on court expert evidence, in more complex cases, it has become established practice for the rights holders to commission a private expert opinion to substantiate the claim.
Factors considered by the court
By its nature, an order granting a preliminary injunction is anticipatory, as it often reflects the substantive judgment that may ultimately conclude the infringement proceedings. In practice, preliminary injunctions are most frequently issued in the form of:
- a prohibition on specified activities during the proceedings
- seizure of the infringing goods.
In the past, Polish courts gave considerable weight to administrative decisions granting patent rights. As a general principle, only a final and non-appealable decision on patent invalidation was enough to preclude the granting, or continuation, of a preliminary injunction. Under the current framework, however, when assessing whether the claim has been substantiated, the court is expressly required to consider the likelihood that the exclusive right may be invalidated in other pending proceedings. This assessment is based on information submitted by the parties, unless these circumstances are known to the court ex officio. In practice, the initiation of the invalidation or revocation proceedings may lead to the dismissal of the PI application.
Obtaining preliminary injunctions
As a general principle, the court is required to examine an application for a preliminary injunction without undue delay, and no later than seven days from its filing. In practice, however, the timeframe often extends to multiple weeks or even multiple months, depending on the complexity of the case. This is especially true since the proceedings are inter partes.
Preliminary injunctions may be granted in respect of all industrial property rights, without exception. This includes pharmaceutical patents, for which the claims may often be more challenging to substantiate in practice.
Enforcement
A decision granting a preliminary injunction is immediately enforceable, unless the court makes its enforcement conditional, eg, upon the lodging of a security deposit. Enforcement may be carried out through bailiff proceedings, including seizure of goods. Failure to comply with the injunction may result in fines and liability for damages.
Appeal
Both parties have the right to appeal against a decision to grant or refuse a preliminary injunction. The appeal must be filed within seven days of receiving the decision, accompanied by a separate statement of grounds. As a general principle, the lodging of an appeal does not suspend the effect of the injunction, unless the court expressly decides otherwise.
A preliminary injunction automatically expires if the right holder fails to initiate the main action within the prescribed deadline, withdraws the claim, loses the case, or if the proceedings are discontinued. In these cases, the respondent may seek compensation for losses caused by the enforcement of an unjustified injunction.
