Under 156 of the Code of Civil Procedure, the court may order by a provisional measure, on request, compliance with the action claim (counterclaim) or with any special claim contained in the request for a provisional measure. A provisional measure can be obtained if it is necessary to prevent imminent damage, or to preserve circumstances giving rise to litigation or to protect the petitioner's rights deserving special appreciation. Furthermore, the court should be satisfied that the drawbacks caused by the measure do not outweigh the benefits attainable by it. The court may subject the ordering of a provisional measure to a security to be provided by the applicant. The facts on which the request is based must be made likely. The request for a provisional measure can only be submitted after the statement of claim has been filed. The court, however, may decide on the provisional measure even before the first trial. The court is required to decide on a provisional measure promptly, but prior to that, it has to hear the parties personally or allow them to present their cases in writing. The hearing of the parties may only be omitted if the provisional measure is urgently needed, or if the party concerned does not comply with the time-limit or period fixed for the hearing. Although an appeal may be lodged against the court's decision ordering a provisional measure, it does not necessarily have a suspensive (delaying) effect on the execution of the measure, i.e. it can be executed in advance.
These provisions of the Code of Civil Procedure (as amended by Act LX of 1995) meet the requirements of Article 50 of the TRIPS Agreement.
Special provisions on provisional measures applicable in the case of infringement have been included in Hungarian industrial property and copyright laws by the Trademark Act and are contained in the Trademark Act itself.
Those provisions are of an interpretative nature in relation to the Code of Civil Procedure, and are designed to reflect the specialties of intellectual property cases so that they should enhance the efficiency of enforcement. They have introduced a statutory presumption in favour of intellectual property rights holders that there is a need to protect a right "deserving special appreciation" (as is required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work, invention, trademark or other subject matter is legally protected, and that he is entitled to that protection, i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question. However, this presumption does not apply where six months have already elapsed form the beginning of the infringement, or sixty days from the date on which the applicant became aware of the infringement and the identity of the infringer. (Nevertheless, in such a case a provisional measure can still be obtained, but only under the general rules of the Code of Civil Procedure, i.e. without the "help" of the statutory presumption.) Furthermore, courts have been put under the obligation to decide on requests for provisional measures within fifteen days, at the latest, counted from the day of submission of such a request.
The relevant provisions are the following: Articles 95 (2) (4) of the Trademark Act, Articles 52 (3) (5) of the Copyright Act, Articles 20 (3) (5) of the Industrial Design Decree, Articles 104 (3) (5) of the Patent Act.
See also Hungary's reply to question 10 of the Checklist of Issues on Enforcement.
