Recent Developments in Preliminary Injunction Requests

A preliminary injunction ("PI") is a temporary legal protection and is granted without requiring the claimant to prove the right on which the claim is based to the full extent of proof. Basically, a request for a PI is granted in cases where it will likely become significantly difficult or impossible to obtain the rights due to a change in the current situation, or where it is likely that serious damage will be caused due to a delay. A preliminary injunction may be requested either from the court where the merits of the lawsuit are pending or from the competent and authorized court prior to filing the lawsuit.

In cases related to intellectual and industrial rights, PI requests and decisions are of great importance. Obtaining a timely PI is a critical step to stop the possible material and moral damage to the rights holder, whose intellectual and industrial rights are used unlawfully, and to prevent the existing damage from growing further.

The approach of the Intellectual and Industrial Property Law Courts towards requests for PIs has recently changed. As a rule, it is sufficient for the party requesting a PI to approximately prove that the case is justified on the merits. However, in 2023, the judges generally did not grant a PI upon the filing of the lawsuit, and when they did, they granted them after the examination of the merits of the case by an expert committee and depending on the outcome of the committee's report.

In the light of the developments above, the Intellectual and Industrial Property Law Courts tend to either reject requests for a PI at the initial stage or grant one after significant progress has been made in the case. In addition to this, considering the potential damages might occur due to PI the amount of security that should be deposited increased significantly in 2023. Even the courts have started to demand a security deposit when examining a PI application on the prevention of the transfer of the trademark to third parties.

In our opinion, the recent practice developed by the courts both contradicts the spirit of the preliminary injunction protection and limits the judges' duties and authorities defined by law. Pursuant to Code of Civil Procedure, a judge may, even without hearing the opposing party, decide on the injunction based on the information and documents available in the file. Disregarding this, especially in cases where there is a risk of serious material and moral damage to the rights holder in a short period of time, such as infringement actions, the courts' decision to wait for the results of the expert reports before issuing a PI may postpone the decision for months or at times for years. Eventually, when the PI decision arrives, the rights holder has already suffered irreversible damage and must deposit high security amounts to implement the injunction decision.