The provisional measures which a Court may order are the precautionary warrants described in the answer to question 5. These are issued on the basis of the provisions in the Code of Organisation and Civil Procedures.
[Answer 5: 5.1.1 Injunctions The Courts may issue a precautionary warrant against a defendant to a court case and an executive warrant against a losing party after a definitive judgement. Precautionary warrants include: - the warrant of prohibitory injunction which may be used to stop a person from doing anything which prejudices the right of the plaintiff; - a garnishee order freezing the defendants property in the hands of third parties; - a warrant of seizure seizing the defendants property; and - a warrant of description to draw up an inventory of property in the hands of the defendant. The warrant of seizure and the garnishee order may also be issued as executive warrants which also include the warrant of ejection or expulsion from innovable property, and the warrant of injunction ordering the imprisonment of a person until the performance of an act ordering by a judgement if there are no other means of execution. 5.1.2 Damages, including recovery of profits, and expenses, including attorney's fees Under Maltese Law damages include both loss of profit and loss of earnings. Expenses incurred due to the fault of other parties and lawyers fees and also recoverable in accordance to the Court judgement. 5.2 Specific – Trademarks (as per Trademarks Bill Nº 38 of 29 February 2000) 5.2.1 Injunctions An infringement of a registered trademark is actionable by the proprietor of the trademark by writ of summons to be filed in the First Hall of the Civil Court. In an action for infringement all such relief as is available in respect of the infringement of any other property right shall be available to the plaintiff. (Section 14(1) & (2)) Any person aggrieved by groundless threats of infringement proceedings, may by means of a writ of summons before the Civil Court, First Hall, request relief by virtue of an injunction against the continuance of such threats. (Section 20(2)(b)) 5.2.2. Damages, including recovery of profits, and expenses, including attorney's fees Any person aggrieved by groundless threats of infringement proceedings may by means of a writ of summons before the Civil Court claim damages in respect of any loss he may have sustained by the threats. (Section 20(2)(c)) 5.2.3 Destruction or other disposal of infringing goods and materials/implements for their production Where a person is found to have infringed a registered trademark, the Court may make an order requiring him: - to cause the offending sign to be erased, removed or obliterated from any infringing goods, material or articles in his possession, custody or control, or - if it is not reasonably practicable for the offending sign to be erased, removed or obliterated, to secure the destruction of the infringing goods, material or articles in question. (Section 15(1)(a) & (b)) If an order as specified above is not complied with, or it appears likely to the Court that such an order would not be complied with, the Court may order that the infringing goods, material or articles be delivered to such person as the Court may direct of erasure, removal or obliteration of the sign, or for destruction, as the case may be. (Section 15(2)) The proprietor of a registered trademark may apply to the Court for an order for the delivery up to him, or such other person as the Court may direct, of any infringing goods, material or articles which a person has in his possession, custody or control in the course of a business. (Section 16(1)) An application shall not be made after the end of the period of six years, and no order shall be made unless the Court also makes, or it appears to the Court that there are grounds for making, an order. A person to whom any infringing goods, material or articles are delivered up in pursuance of an order shall retain them pending the decision of the Court. (Section 16(2) & (3)) Where infringing goods, materials or articles have been delivered up in pursuance of an order, an action by writ of summon may be brought before the Court by any party interested: - for an order that they be destroyed or forfeited to such person as the Court may think fit, or - for a decision that no such order should be made. In considering its decision, the Court shall consider whether other remedies available in an action for infringement of the registered trademark would be adequate to compensate the proprietor and any licensee to protect their interests. (Section 19(a)(b) & (c)) 5.2.4. Other remedies Any person aggrieved by groundless threats of infringement proceedings may by means of a writ of summons before the Civil Court, First Hall, request a declaration that the threats are unjustified. (Section 20(2)(a)) 5.3 Specific – Patents (as per Patents Bill Nº 37 of 3 March 2000) 5.3.1. Injunctions The Court may stay proceedings for infringement in respect of a patent application until after a final decision has been made by the Comptroller to grant or refuse a patent on that application. (Section 48(3)) 5.3.2. Damages, including recovery of profits, and expenses, including attorney's fees Any person who exploits an invention which is the subject-matter of a patent or patent application shall be liable in damages towards the proprietor of the patent or of a patent application or the licensee. The right to sue for damages shall be without prejudice to the right of such person to apply for the issue of any precautionary warrant as provided in the Code of Organization and Civil Procedure to protect his rights. (Section 47(1) & (2)) 5.3.3. Destruction or other disposal of infringing goods and materials/implements for their production The Court may, on the demand of the plaintiff, order that the machinery or other industrial means or contrivances used in contravention of the patent, the infringing articles, and the apparatus destined for their production, be forfeited, wholly or partially, and delivered up to the proprietor of the patent. (Section 47(3)) 5.4 Specific – Copyright 5.4.1 Damages, including recovery of profits, and expenses, including attorney's fees Where any person infringes the copyright, neighbouring rights or sui generis rights in respect of a work he shall be liable, at the suit of the copyright owner or right holder to be condemned by the Civil Court, First Hall, to the payment of damages or to the payment of a fine to be determined in accordance with a scale of fines to be prescribed by the Minister and to the restriction of all the profit derived from the infringement of the copyright, neighbouring rights or sui generis rights. Where the defendant proves to the satisfaction of the Court that at the line of the infringement he was not aware and could not reasonably be expected to be aware that copyright, neighbouring rights or sui generis rights subsisted in the work to which the action relates, the Court shall not condemn him to the restitution of the profit. The Civil Court, First Hall, may in an action for infringement of copyright, neighbouring rights or sui generis rights having regard to all the circumstances and in particular to the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement, award such additional damage as the justice of the case may require. (Section 43(1) & (2)) Any person who is found liable for infringement of moral rights shall be liable at the suit of the author or his heirs to be condemned by the Civil Court, First Hall, to the payment of a fine, and for damages to be determined in accordance with a scale of fines to be prescribed by the Minister. 5.4.2 Destruction or other disposal of infringing goods and materials/implements for their production The Court may order that all the infringing articles still in possession of the defendant be delivered to the plaintiff. The Court shall order the destruction of all the infringing articles still in the possession of the defendant where it is satisfied that the prejudice caused to the author is so serious as to justify such measure. This provision shall not apply where the infringing article is a building. (Section 44(2) & (3))]