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Draft evaluation and review of the IPR enforcement directive – Towards an internal market for IP enforcement

Due to the lack of a European right (except for trademarks and designs), obtaining interlocutory or permanent injunctions for the same infringement against infringers or intermediaries from several jurisdictions in the EU is often cumbersome for certain IPR, in particular copyright.

In order to streamline the conditions for interlocutory or permanent injunctions in multiple jurisdictions and to facilitate their use it could be provided in IPRED, that judicial authorities may take into account relevant evidence used by the applicant in similar proceedings in other Member States or judicial decisions obtained by the applicant in similar proceedings against the defendant in other Member States when assessing if the conditions for granting an interlocutory injunction are met to a sufficient degree of certainty.

The Directive could mandate Member States to ensure that the judicial authorities may issue an interlocutory injunction in the party has presented reasonably available evidence sufficient to support its entitlement to the claim, the urgency of the claim and, if relevant, the use of the services of an intermediary by a third party to infringe an intellectual property right. The judicial authorities should be satisfied to a sufficient degree of certainty that these conditions are met.

IPRED covers all infringements of IPR without containing any definition of IPR. The technique used by the Directive has the advantage of providing a high degree of flexibility as the scope adapts to changing definition of IPR both at EU and national level. However, in the public consultation, a number of respondents from the judiciary and legal profession flagged the issue of lack of clarity of the scope of IPRED. It could be included a list of those IPR that should fall within the scope of the Directive in IPRED.