{"id":9832,"date":"2026-04-29T08:11:58","date_gmt":"2026-04-29T08:11:58","guid":{"rendered":"https:\/\/mbg.legal\/?p=9832"},"modified":"2026-04-29T08:14:57","modified_gmt":"2026-04-29T08:14:57","slug":"precautionary-measures-in-intellectual-property-matters-the-court-of-justice-clarifies-the-fate-of-anticipatory-measures","status":"publish","type":"post","link":"https:\/\/mbg.legal\/en\/precautionary-measures-in-intellectual-property-matters-the-court-of-justice-clarifies-the-fate-of-anticipatory-measures\/","title":{"rendered":"Precautionary measures in intellectual property matters: the Court of Justice clarifies the fate of "anticipatory" measures.\u201c"},"content":{"rendered":"

With the ruling of April 23, 2026<\/strong>, case C-132\/25, the Court of Justice of the European Union intervened on an issue of particular practical relevance in intellectual property litigation: the fate of precautionary measures that anticipate the effects of the decision on the merits in the absence of the initiation of the main proceedings<\/strong>.<\/p>\n\n\n\n

The pronunciation originates from a preliminary reference from the Court of Cassation<\/strong> in the context of a dispute between two operators in the restaurant sector and concerning the use of a distinctive sign deemed to infringe an earlier trademark. In this context, the referring court asked whether the\u2019art. 9, par. 5, of Directive 2004\/48\/EC (so-called Enforcement directive)<\/strong> \u2013 which requires the revocation or loss of effectiveness of precautionary measures, at the defendant's request, in the absence of timely commencement of proceedings on the merits \u2013 precludes a national provision, such as Article 132, paragraph 4, of the Italian Code of Criminal Procedure, which allows the maintenance of emergency measures capable of anticipating the effects of the judgment on the merits, even in the absence of commencement of the main proceedings within the peremptory deadline provided.<\/p>\n\n\n\n

The Court provides a clearly negative answer, developing a complex interpretation of the European provision <\/strong>on the basis of the main hermeneutic criteria.<\/p>\n\n\n\n

Under the literal profile<\/strong>, the Court emphasizes the breadth of the wording of Article 9, paragraph 5, noting that the reference to the "provisional measures referred to in paragraphs 1 and 2" of Article 9 encompasses a broad spectrum of precautionary instruments and does not introduce any distinction between merely conservative measures and measures capable of anticipating the effects of the decision on the merits, nor does it contemplate exceptions to the rule of their cessation in the absence of the initiation of the main proceedings.<\/p>\n\n\n\n

On the systematic plan<\/strong>, the provision is read in the overall context of the Enforcement Directive and, in particular, in coordination with Article 3 thereof, which requires Member States to ensure effective, proportionate measures with adequate safeguards against abuse. From this perspective, Article 9, paragraph 5, serves as a counterbalance to the speed and effectiveness of precautionary measures, ensuring the defendant has the option of obtaining their revocation if the plaintiff fails to pursue the action on the merits. The Court also emphasizes that this interpretation must also be conducted in light of the international obligations arising from the TRIPS Agreement, particularly Article 50, which provides similar guarantees regarding provisional measures.<\/p>\n\n\n\n

Finally, as for the ratio<\/em> of the arrangement<\/strong>, the ruling highlights how it pursues the objective of preventing precautionary measures\u2014by their very nature adopted on a summary basis\u2014from being extended indefinitely without a determination of the merits, with the consequent risk of prejudice to the defendant and of altering the balance between the parties. In this sense, Article 9, paragraph 5, is an expression of the principle of proportionality and a safeguard against the abusive use of precautionary measures.<\/p>\n\n\n\n

In light of these considerations, the Court reaches a clear conclusion: Article 9, paragraph 5, of Directive 2004\/48\/EC must be interpreted as precluding the application of a national provision which allows the maintenance of precautionary measures<\/strong> \u2013 including those capable of anticipating the effects of the decision on the merits \u2013 if the plaintiff has not brought an action on the merits within the established deadline and the defendant requests its revocation or cessation of its effects.<\/p>\n\n\n\n

In this perspective, between the needs of procedural economy and the protection of the rights of defence, the Court makes a clear choice in favour of the latter<\/strong>, excluding that reasons of simplification or acceleration of the procedure could justify the stabilization of precautionary measures without a subsequent examination of the merits.<\/p>\n\n\n\n

It's about a landing destined to significantly impact Italian application practice<\/strong>, making uncertain, at present, the fate of the provisions issued thus far, which have not been followed by the initiation of a trial on the merits and which relied on the stability of their effects recognized by Article 132, paragraph 4, of the Code of Criminal Procedure, and requiring, for the future, a reinterpretation of the same provision in accordance with European Union law.<\/p>\n\n\n\n

Content edited by Avv. Carlo Ginevra<\/a> and Dr. Sofia Confalone<\/a><\/p>\n\n\n\n

<\/p>","protected":false},"excerpt":{"rendered":"

Con la sentenza del 23 aprile 2026, causa C-132\/25, la Corte di Giustizia dell\u2019Unione … Read more<\/a><\/p>","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"slim_seo":{"title":"Misure cautelari in materia di propriet\u00e0 intellettuale: la Corte di Giustizia chiarisce la sorte dei provvedimenti \u201canticipatori\u201d - Studio Legale Milano | MBG Legal | Mondini Bonora Ginevra","description":"With the judgment of 23 April 2026, case C-132\/25, the Court of Justice of the European Union intervened on an issue of particular practical relevance in"},"footnotes":""},"categories":[6,1],"tags":[],"class_list":["post-9832","post","type-post","status-publish","format-standard","hentry","category-proprieta-intellettuale-e-industriale","category-uncategorized","generate-columns","tablet-grid-50","mobile-grid-100","grid-parent","grid-33"],"acf":[],"_links":{"self":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts\/9832","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/comments?post=9832"}],"version-history":[{"count":1,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts\/9832\/revisions"}],"predecessor-version":[{"id":9833,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts\/9832\/revisions\/9833"}],"wp:attachment":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/media?parent=9832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/categories?post=9832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/tags?post=9832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}