SECURITY OF CLAIMS IN MATTERS OF INTELLECTUAL PROPERTY
Intellectual property matters require the parties to react quickly to the actions of entities infringing their rights and to efficiently defend allegations of infringement of someone else’s rights. Conducting a dispute before a court, despite the statistical speed of the proceedings (the average duration of intellectual property proceedings in the first quarter of 2022 was 3.2 months), may prevent an entrepreneur from running a business and obtaining income. Therefore, it is important to take quick and effective action, both when another person copies our solutions and when we are accused of such action.
APPLICATION FOR SECURITY OF CLAIMS
If a competitor uses your trademark, industrial design or other subject of intellectual property rights without your consent (e.g. without a license agreement), it would be reasonable to apply for securing the claims for the duration of the main court proceedings. Thanks to this, your competitor may not continue to infringe your rights during (or even before) litigation before the court. It is important that such an application is submitted by a person who has a legal interest in securing it, so it can be both the trademark owner and its licensee.
The application for securing the claim itself must indicate the manner of the security and substantiate the circumstances justifying the application. After the Court approves the application, the party is set a time limit for filing the main claim, which may not exceed two weeks. If the party does not bring a claim for the protection of its intellectual property right within that period, the security is canceled and therefore is no longer valid.
CLAIM LETTER – DEFENSE AGAINST AN EXPECTED REQUEST FOR SECURITY
Under the current law, the courts when considering applications for securing claims do not wait for the statement of the other party. They issue orders on granting a security or dismissing the application without summoning the party on which the restrictions on functioning on the market are to be imposed (e.g. prohibition to use a trademark). On the one hand, such a situation is unfair for entrepreneurs who are unable to comment on the matter and are therefore exposed to losses, on the other hand, it is a very good way to actually secure the rights of those entrepreneurs whose rights are violated.
In practice, in order to protect the client against an unfair application for security, legal advisers and patent attorneys dealing with intellectual property matters submit the so-called barrier letters or protective letters. These are letters, the submission of which is not provided for by the Code of Civil Procedure, but some representatives of the judiciary recognize the legitimacy of submitting them.
Such a letter is submitted when the dispute is still pending between the parties at the pre-trial stage, e.g. notices to cease violations are exchanged. If, as a result of such a dispute, the entrepreneur decides that the dispute has not been resolved and he is afraid that the opponent will submit an application to the court, which will deprive him of the possibility of placing certain products on the market or using the logo, he may submit such a preventive letter in which will present his position on.
Currently, it is postulated in favor of introducing this type of procedural act into the Code of Civil Procedure. Certainly, regulating the rules for submitting such letters and the procedure for their examination will allow for effective defense against unfair competitors.
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