Preliminary injunction proceedings in Germany: Equality of arms and hearing the respondent – German Federal Constitutional Court, orders dated September 30, 2018, 1 BvR 1783/17, 1 BvR 2421/17, reported by Armin Schwitulla, Daniel Seitz and Simon Schopper, Bardehle Pagenberg

The decisions of the Federal Constitutional Court relate to the involvement of the respondent in preliminary injunction proceedings. Accordingly, the issuance of a preliminary injunction violates the respondent’s right to procedural equality of arms equivalent to a fundamental right if the respondent has not been involved beforehand.

1. Regarding preliminary injunctions
A preliminary injunction – as opposed to principal proceedings – allows for fast enforcement – sometimes within a few days, depending on the case – in particular of the claim for injunctive relief. In the field of intellectual property, this is particularly relevant if infringing products are exhibited at a trade fair or launched on the German market for the first time.

2. Previous preliminary injunction practice
A request for issuance of a preliminary injunction is usually immediately presented to the Presiding Judge after receipt by the court. If the initial examination of the request by the court yields that it only has a low prospect of success, the court usually informally informs the applicant of this by telephone and recommends withdrawing the request or, if applicable, further substantiating the submission or demonstrating it to the satisfaction of the court. In case of withdrawal of the request, the court fees are significantly reduced and the respondent is not informed of it. This limits the risk for the applicant.

If, after initial examination, the court considers the request justified, there are two alternatives: On the one hand, it can issue a preliminary injunction without hearing the respondent first (ex parte). To date, this is especially the case in trademark and design matters as well as in trade fair matters. In contrast to this, in matters under patent law, an ex parte injunction – in particular according to the case law of the important patent litigation courts of Düsseldorf and Mannheim – generally only comes into consideration in case of uncomplicated facts and circumstances where the infringement is evident and the legal validity is sufficiently certain or where a fast decision is obligatorily required to avert irreparable damage, as the preliminary injunction after hearing the adversary would regularly be too late. The last aspect is particularly affirmed by case law in pharmaceutical cases dealing with the question of patent infringement by early market entry of generics companies. In all other cases, the court as a rule schedules an oral hearing to provide the adversary with the opportunity to comment on the matter (inter partes proceedings).

The entire Bardehle Pagenberg IP report can be read here.