Provisions on provisional measures in the form of interlocutory injunctions exist as regards infringements in copyright/neighbouring Rights (Article 53a, second and following paragraphs, of the Copyright Act), trademarks (Article 37a, second and following paragraphs of the Trademarks Act), patents (Article 58, second and following paragraphs, of the Patents Act), semiconductor integrated circuits (Article 11, second and following paragraphs, of the Semiconductor Act), trade secrets (Article 13 of the Trade Secrets Act) and the protection of plant varieties (Article 36a of the Plant Breeders' Protection Act). Those provisions have all the same main structure. As an example is shown here the relevant provision (Article 53a of the Copyright Act), which reads:
"If the plaintiff shows a probable cause that an act implying an infringement or a violation as referred to in Article 53 takes place and if it can reasonably be expected that the defendant, through the continuation of the act, diminishes the value that the copyright confers, the Court may issue an injunction for the time until the case has been finally adjudicated or otherwise is decided. No injunction may be issued before the defendant has been given an opportunity to respond, unless a delay would entail a risk for damage.
An injunction as mentioned in the second paragraph may be issued only if the plaintiff deposits a security with the Court for the damage which may be caused to the defendant. If the plaintiff is not capable of depositing such a security, the Court may liberate him from making such a deposit. As regards the type of security, the provisions of Chapter 2, Article 25, of the Code of Enforcement shall apply. The security shall be examined by the Court unless the defendant has accepted it.
When the case is adjudicated, the Court shall decide whether a prohibition issued under the second paragraph shall continue to apply.
The provisions on appeal against decisions in Chapter 15 of the Code of Judicial Procedure shall apply as regards appeals against decisions under the second and third paragraphs and as regards the proceedings in higher Courts."
In addition to those special provisional measures mentioned directly in the respective intellectual property codes, there are general provisions on provisional measures in the Code of Judicial Procedure which apply not only to intellectual property cases but more generally, some in civil cases and other in criminal cases.
As far as general provisional measures in civil cases are concerned, the provisions relevant in the present context are contained in Chapter 15 of the Code of Judicial Procedure.
Article 1 of this Chapter contains the general provision on provisional attachment of property. It reads: "Where someone shows a probable case that he has a claim which is, or may be assumed to be, the subject of a court trial or of an examination in another similar way, and it can reasonably be assumed that the adverse party will evade the payment of the debt through absconding, removal of property or otherwise, the Court may order a provisional attachment of the adverse party's property to such an extent that the claim can presumably be covered in an act of legal execution". Those provisions are complemented by the provisions of Article 3, the first paragraph, which states: "Where someone shows a probable case that he, in situations other than those referred to in Article 1......, has a claim against someone else which is or may be assumed to be the subject of a court trial or of an examination in another similar way, and it can reasonably be assumed that the adverse party through the continuation of a certain activity, or the undertaking, or the refraining from, a certain act prevents or renders difficult the exercise of the applicant's right or substantially diminishes his right, the Court may order appropriate measures to safeguard the applicant's right". According to the second paragraph "(M)easures under the first paragraph may include a prohibition, on penalty of a fine, to exercise a certain activity or perform a certain act or another order, on penalty of a fine, to take into account the applicant's claim or the appointment of a custodian or the ordering of a measure which otherwise is of a nature as to prevent an infringement of the applicant's rights".
Measures indicated here are ordered by the Courts of law. In principle, such measures shall, according to Chapter 15, Article 5, third paragraph, be undertaken only after the adverse party has been given an opportunity to respond to the request. If, however, a delay would entail a risk, the Court may issue an order immediately to apply until otherwise ordered.
The issuing of an order presupposes, according to Chapter 15, Article 6, in principle, that the applicant deposits with the Court a security for the damage that may be caused to the adverse party. Where the applicant is not able to provide such a security and he has shown extraordinary merits for his claim, the Court may liberate him from making such a deposit. The State, municipalities, county municipalities and municipality associations do not have to make a deposit. Chapter 2, Article 25, of the Code of Enforcement, applies to the character of the security. The Court shall examine the security, unless it has been approved by the adverse party.
When a Court orders a measure mentioned above and the applicant has not instituted a proceeding, he shall, according to Chapter 15, Article 7, institute, within one month from the order, a proceeding in Court or, where the claim shall be examined in another way, apply what is provided in this respect. If a proceeding is not instituted according to these provisions, the measure shall immediately cease to apply.
Furthermore, according to Chapter 15, Article 8, the measure shall immediately be terminated where an adequate security has been deposited or there is otherwise no longer a reason for the measure. The measure shall also be invalidated where the action which has been instituted in the case is withdrawn or shall be considered as abandoned. When the case is under consideration by a Court and the case is adjudicated, the Court shall consider whether the measure shall continue to be valid. The Court may also, in connection with the judgement, order a measure as now indicated.
Provisions on provisional measures and security measures in criminal cases are contained in Chapters 24 (on detention and arrest), 25 (on travel prohibition and obligation to report to police authorities), 26 (on provisional attachment), 27 (on seizure and lawful interception of telecommunications), and 28 (on search of premises and search and examination of persons). It is not possible to indicate here the criteria for all the different situations when the application of those measures may be invoked. It should be mentioned, however, that detention under Chapter 24 may, on certain conditions, be ordered for offences for which the penalty may be imprisonment for one year or more. As IPR offences may result in imprisonment for up to two years, detention may be ordered in such cases.