24.09.2025

Bringing substantive proceedings after obtaining provisional measures in intellectual property disputes

In this article, we aim to analyze a delicate legal issue with significant practical implications for economic operators seeking to protect their intellectual property rights. The scenario we are considering is as follows: the intellectual property rights holder has already obtained approval for provisional measures to prohibit infringement or to cease and/or preserve evidence pursuant to the provisions of Art. 979 para. (2) of the Civil Procedure Code[1] .

Subsequent to the approval of the provisional measures, the rights holder must take into account the provisions of Article 979(6) of the Civil Procedure Code, which require, under penalty of their automatic termination, the filing of the action on the merits for the defense of the infringed right "within the time limit set by it." of the Civil Procedure Code, which require, under penalty of their automatic termination, the filing of a substantive action to defend the infringed right "within the time limit set by the court, but no later than 30 days after their adoption."

The legal issue arising from the apparent ambiguity of the wording chosen by the legislator – "taking them" – is whether the time limit for bringing the action on the merits begins to run from the date on which the provisional measures were taken with the support of the bailiff, or from the date of the first instance decision granting the measure.

We consider that the first interpretation is the correct one, so that the date from which the 30-day time limit for bringing the action on the merits is calculated, in the absence of an express provision to the contrary in the judgment of the court that approved the provisional measures, is the date on which the measures ordered/approved/authorized by the court were actually taken, i.e., the date on which the bailiff enforced the court judgment.

In support of this solution, we consider four arguments of grammatical, systematic, and teleological interpretation of Article 979 of the Civil Procedure Code, which we will detail below.

First, from a literal (grammatical) interpretation perspective, according to Article 979(2) and (4) of the Civil Procedure Code:

(2) The court may order, in particular:

a) the prohibition of the infringement or its provisional cessation

b) taking the necessary measures to ensure the preservation of evidence.

[…]

(6) The measures taken in accordance with the provisions of paragraphs (1)-(4) prior to the initiation of legal proceedings to defend the infringed right shall cease by operation of law if the claimant has not brought the matter before the court within the time limit set by the court, but no later than 30 days after they were taken.

It follows from the above provisions that the court only orders/approves/authorizes the provisional measures for the preservation of evidence to be taken by the bailiff, the two moments being clearly individualized.

Secondly, this conclusion is confirmed by another textual argument, which is the basis for a systematic interpretation, namely the provisions of Article 979(8) of the Civil Procedure Code:

"If the opposing party does not claim damages, the court shall order the release of the security, at the request of the claimant, by a decision given with the parties being summoned. The request shall be judged in accordance with the provisions relating to the presidential order, which shall apply accordingly. If the defendant opposes the release of the security, the court shall set a time limit for bringing the action on the merits, which may not exceed 30 days from the date of the decision, under penalty of the automatic termination of the measure of unavailability of the amount deposited as security."

It can thus be seen that in cases where the legislator intended the time limit to run from the date of the judgment, this was expressly provided for in the same article. We consider that the difference in wording is by no means accidental. The legislator expressly referred to the date of the ruling in order to establish the moment of termination of the measure of unavailability of the amount deposited as bail, precisely because in this situation there is interference with the other party and the unavailability is already effective from the date of the ruling.

Normally, if the legislator had intended the solution to be the same for the provisional measures referred to in paragraph (2) of the same law, it would have made the same express clarification. However, the legislator intentionally used the phrase "their adoption" rather than "the pronouncement of the judgment."

Thirdly, these arguments of grammatical and systematic interpretation of the legal norm are fully consistent with the teleological interpretation of the text, whereby the legislator sought to ensure that interference with the rights of the person against whom the measure was ordered should not be prolonged for an unreasonable period of time from the moment when such interference actually occurred.

In this light, the key to resolving the issue under consideration can be summarized in the following question: what interference with the rights of the person against whom provisional measures have been granted occurs on the date of the ruling? Clearly, the mere pronouncement of a decision ordering the prohibition or provisional cessation of the infringement or authorising the preservation of certain evidence cannot constitute an interference with the rights of the person suspected of infringing intellectual property rights.

The reason why the legislator has provided that the time limit runs from the date of the measure is obvious: only from the moment the measure ordered/approved/authorized by the court is enforced by the bailiff does it become effective. Until that moment, the defendant does not suffer any consequences that would justify the temporary limitation of the measure.

The purpose of the measure established by the legislator in Article 979(6) of the Civil Procedure Code is to protect the person against whom the measure was approved, so that they do not suffer the possible negative consequences indefinitely, without a court being seized with the analysis of the merits of the dispute. However, as long as the measure has not yet been taken, it does not affect the opposing party in any way. However, as long as the measure has not yet been taken, it does not affect the opposing party in any way.

Fourthly, on the date of the ruling, it is not even possible to take the measures granted by the court through the bailiff, as it is necessary to draft the judgment and obtain a certified copy of it. If the court decision is reasoned within a period of more than 30 days, it cannot be enforced before the moment when, according to this interpretation, the claimant should bring the action on the merits. In the specific case of the preservation of evidence, once the action on the merits has been brought and communicated to the defendant, the latter has the physical time necessary to alter the evidence in its possession even before the provisional measure can be taken.

In conclusion, in the absence of another time limit mentioned in the operative part of the court decision, depending on the particularities of each case, the time limit for bringing the action on the merits concerning the protection of intellectual property rights begins to run from the date on which the provisional measures ordered/approved/authorized by the court were actually taken with the support of the bailiff, and not from the date of the judgment, this interpretation being required by reference to the arguments set out above.

An article signed by Dan-Rareș Răducanu, Senior Partner - rraducanu@stoica-asociatii.ro - and Mircea Vasile, Junior Lawyer -mvasile@stoica-asociatii.ro -  STOICA & ASOCIAȚII