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6. Remedies Statute of Limitation: There is a six year time limit that the action must be brought within. Pre-Trial Remedies - CDPA s.100
? Interlocutory injunctions - Order refrains infringing acts. Can be decisive and avoid trial.
- American Cyanamid v. Ethicon ; Principle: Concerned a patent for surgical sutures. One must ask for interim relief if: a prima facie case has been established, if a serious question is to be tried and whether it would be just to grant relief in the case at hand. One should then follow the following considerations:
1. Compare possible effects. According to Lord Diplock one must question whether financial relief would be sufficient.
2. Balanced test of convenience
3. Look to merits of case if still undecided (rare). Criticisms of this approach:
This is inflexible even if the case is strong.
It is unrealistic to expect a judge not to consider the merits of a case.
This favours an established business (who may have the ability to pay).
This removes the benefits that many litigants got from mini-trials that used to be preliminarily heard - it would indicate the outcome of a case and allow out of court settlements.Series 5 Software v. Philip Clarke ; leading authority. When do you get one?
Laddie J said rules are not inflexible - court will look at all facts and will rarely try to resolve problems of disputed fact. Will bear in mind whether damages will be an adequate remedy, if D will pay, convenience, maintenance of the status quo and court judgments on strength of the case.Nude Brands Limited v. Stella McCartney ; It was not appropriate to grant an interim injunction to restrain a fashion company from using the sign STELLANUDE on perfume products even though it was arguable that the company's use of the sign infringed a cosmetics company's Community Trade Mark of the word NUDE, as the likely damage to the fashion company in terms of financial cost, goodwill and reputation by delaying the imminent launch of the perfume product in question outweighed any damage to the cosmetics company in allowing the launch to proceed.
? Is there a serious question to be tried?Cream Holdings v. Banerjee; A disgruntled employee sent corruption information about the company to the press. Was an injunction to be granted here? Lord Nicholls tried to add flexibility to the test by suggesting that 'damage being likely' does not mean more likely than not; just will there be grave adverse effects.
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