Finland: Expedited Remedies For The Protection Of Intellectual Property Interests In Finland

In Finland the provisions on precautionary measures are included in the Code of Judicial Procedure. General precautionary measures can also be applied to cases related to intellectual property. In addition, the different intellectual property rights laws (Copyright Act, Trademark Act, Patent Act, Designs Act, Act on Utility Model, Act on Plant Variety Right and Act on Right in the Layout Design (topography) of an Integrated Circuit) as well as the Act on Preservation of Evidence in Intellectual Property Right Disputes include specific provisions on precautionary measures applicable only in specific intellectual property matters. A party can apply for use of precautionary measures on several different grounds in the same application and the different provisions can be applied simultaneously. In most cases the petition can be made before the legal proceedings in the substantive matter are brought before the court or at any time during the legal proceedings.

The precautionary measures can be divided into three groups: measures for ensuring preservation of evidence, measures for ensuring payment of debts or other receivables, and measures for interrupting or stopping infringing activities (preliminary injunctions).

In general there are three preconditions for any kind of precautionary measures in Finland:

1. Petitioner’s right against the opposing party – the petitioner must establish the probability that he/she has a right vis-à-vis the opposing party.
2. Threat to the petitioner’s rights – the petitioner must be able to show that there is a threat from the other party’s active or passive conduct that endangers the petitioner’s rights.
3. Harm or loss to petitioner’s rights – the petitioner must be able to show that the actions taken by the other party may hinder or undermine the realization of the rights of the petitioner or substantially decrease their value.

Furthermore, before the court can issue any precautionary measure it must conduct a balancing of the parties’ interests to determine if it would cause undue inconvenience and harm to the other party in comparison with the petitioner’s need to secure his rights.

The application is dealt with in a summary procedure, which means that the court does not examine the substance of the matter. For this reason the petitioner shall, before the precautionary measure can be enforced, provide a security for the possible damages that might occur to the other party if the claims of the precautionary measure prove to be unfounded. The petitioner’s negligence is not a condition for such liability to attach.

As a general rule, the other party shall be given the possibility to be heard before the court can issue a precautionary measure. However, if the purpose of the precautionary measure may be compromised, the court may, on the request of the petitioner, issue an interim order without providing the opposing party with the opportunity to appear and contest the measure. This is usually the case in most intellectual property disputes.

In general, the standard of proof for precautionary measures varies depending on the nature of the measure applied for. The courts are quite cautious in granting preliminary injunctions. If the injunction is granted, the petitioner may unfairly benefit from the contested right during legal proceedings. Therefore, the standard of proof regarding the probability of petitioner’s rights against the other party is much higher than in other types of precautionary measures. An unfounded preliminary injunction may also cause significant harm and loss to the other party. The amount of security required for enforcement of preliminary injunction is thus also usually very high. With regard to preservation of evidence, the confidential nature of evidence may in practice prevent preservation and therefore prevent the petitioner from using such evidence.

Precautionary measures provide valuable means for protecting one’s interests during legal proceedings. However, this tool should not be treated lightly, because if it turns out that the petition for the precautionary measure is unfounded, the petitioner is obliged to compensate all damages caused to the other party even if the petitioner has acted diligently. The potential financial risks must therefore be weighed against the benefits to be gained before proceeding to apply for precautionary measures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.