The Netherlands: Urgent interest or not?

The Dutch interim injunction court is only competent in cases with urgent interest. A recent case, Ruby Decor v Basic Holdings, raised the question whether or not such urgent interest was indeed present.

In prior proceedings, Ruby Decor was prohibited from infringing Basic Holdings' patent EP B 2 029 941 relating to artificial fireplaces. Basic Holdings was awarded the enforcement instrument of penalty payments for non-compliance. Ruby Decor designed three alternative variations of fireplaces and requested Basic Holdings to confirm that these would not infringe the '941 patent and that marketing these variations would not invoke penalty payments.

When Basic Holdings refused to confirm this, Ruby Decor requested in new interim injunction proceedings that Basic Holdings be prohibited from using its enforcement instrument against the new variations. Ruby Decor alleged there was an urgent interest because they would suffer considerable damages when, in retrospect, marketing the variations were to infringe the '941 patent. Hence, Ruby Decor had an interest in knowing in advance whether or not Basic Holdings would proceed to claim penalty payments if Ruby Decor marketed any of the fireplace variations. However, Basic Holdings argued that Ruby Decor did not have any (urgent) interest because there was no sign of imminent execution in the absence of evidence that Ruby Decor would actually market any of the variations.

The interim injunction court ruled that the certainty requested by Ruby Decor cannot be provided in interim injunction proceedings due to the absence of (urgent) interest. No facts or circumstances of imminent execution by Basic Holdings were produced. Rather, the question whether any of the fireplace variations infringes the '941 patent should be assessed in main proceedings, and the question whether penalty payments are due should be dealt with in execution proceedings. In particular, the court ruled that it is not possible in interim injunction proceedings to impose a prohibition as claimed by Ruby Decor that is unconditional and unlimited in time.

Huub Maas

V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67 99info@vo.euwww.vo.eu