Asking the court to ban the defendant from continuing to produce infringing goods during the trial is the rights owner’s strongest procedural move, because it stops damage at the source instead of waiting for a judgment and counting money. In return, it is the request defendants fight hardest, and courts grant it only on a truly tight urgency file.
Legal basis to start from
A production ban during trial is a specific form of the provisional urgent measure in paragraph 12 of Article 114 of the Civil Procedure Code 92/2015, prohibiting certain acts, applied at a litigant’s request under Article 111 of the same code. In an IP case, the banned act is continued production, usually extending to circulation and offering of the identified infringing product line. The applying decision is immediately enforceable; the defendant must comply even while the case is pending and even while it complains about the decision through procedural channels.
How this applies in practice
For the ban to be feasible, its scope must be proportionate: courts tend to accept banning exactly the assessed infringing line or product range, and to refuse shutting an entire plant where the defendant also makes many other lawful product lines. A defendant breaching the ban by secretly continuing production faces handling for disobeying the court’s provisional measure decision, has the conduct recorded as a serious adverse factor in the judgment, and may face compulsory enforcement of the decision. Conversely, the ban certainly affects the defendant’s business: lost orders, idle workers and restart costs, which is exactly the damage the claimant’s security compensates if the claimant ultimately loses on infringement.
What to do next
- Build the ban request around one assessed product line, with a line map showing the banned scope can be separated from the defendant’s lawful operations.
- Propose in the request a compliance verification mechanism: the claimant coordinating with competent authorities for periodic checks or checks upon signs of secret production.
- Estimate the ban’s business impact on the defendant in advance to prepare proportionate security and proportionality arguments when the court questions.
Frequently Asked Questions
Can the defendant be banned from producing infringing goods during trial?
Yes, by requesting a provisional urgent measure in the form of prohibiting certain acts under paragraph 12 of Article 114 of the Civil Procedure Code 92/2015. The court decides based on urgency, prima facie infringement evidence and the proportionality of the ban’s scope.
What is the procedure for seeking the ban order?
The procedure comprises filing the request with evidence of rights, the infringement assessment result and the risk of harm if production continues, posting security as the court requires, and the court considering and deciding quickly under the urgent procedure, possibly before or after case acceptance depending on when the request is made.
What if the defendant breaches the ban?
The defendant faces handling for disobeying the court’s provisional urgent measure decision, compulsory enforcement, and adverse evaluation at trial on the infringement; damage from secret production after the ban is also added into the compensation the court considers.
Does the ban affect the defendant’s business operations?
Significantly: the defendant loses the ability to produce the banned line, incurs idle costs and customer-loss risk. Because of this impact, courts weigh proportionality very carefully and the claimant must post security for the potential damage if the ban request is concluded to be groundless.
This article has been quality-reviewed by the FLAW AI Legal Council