The circumstances in which such measures may be ordered are discussed in the responses to questions 5 and 10 above. Due to the nature of the application, the procedures for the initiation of the provisional measures are usually done by writ and supported by an affidavit. The court has the discretion to set the date to hear the application for interim injunction and the order would be given on the same day depending on the seriousness of the allegation. The order could be extracted on the same day and executed immediately.
[Answer 5: Injunction Order 29, Rule 1(1) states that an application for the grant of an injunction may be made by any party to a cause or matter before or after trial of the cause or matter, whether or not a claim for injunction was included in the party's writ, originating summons, counterclaim or third party notice. It may be obtained by an application to the court by summons supported by an affidavit. Whenever the application is one of urgency, it may be made ex parte (without notice of the defendants). The court can grant an injunction where it considers it to be just and convenient to do so. The court followed the criteria laid down by the House of Lords in the case of American Cyanamid vs Ethicon Ltd.  AC 396 as follows: - Is there a serious issue to be tried? - Are damages as adequate? - Where does the "balance of convenience" lie? - Are there any "special factors"? The plaintiff is always required to give a cross-undertaking to damages when an injunction is granted. The purpose is to safeguard the defendant's loss and damages if the plaintiff loses at a trial. - Mareva injunction This is a special type of interlocutory injunction which can be granted by itself or in combination with an other interlocutory injunction and/or an Anton Piller Order and other order. A Mareva injunction temporarily freezes the assets of a defendant which are required to satisfy a judgement or expected judgement in order to prevent dissipation of goods by the defendant within the country or their removal from the jurisdiction of the court. It is an ex parte application and there must be cogent evidence of a risk of dissipation of assets. Order 24, Rule 3(1) allows a person to apply for an order for the discovery of documents before the commencement of proceedings. Order 24, Rule 7 allows a party to an action to apply for an order for the discovery of documents by a person who is not a party to the proceedings. An application made under these provisions must be supported by an affidavit which specifies or describes the documents in respect of which the order is sought and show, that the documents are relevant to an issue arising or likely to arise out of a claim made likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had in his possession, custody or power. The court cannot make such an order unless it is of the opinion that the discovery sought is necessary either for disposing fairly of the cause or matter or for saving cost. The order may be made on condition the applicant gives security for the costs of the person against whom the order is made or on such terms as the court thinks just. Order 26, Rule 1 allows a party to apply for an order for interrogatories before the commencement of proceedings. An application made under this provision must be supported by an affidavit. The court cannot make such an order unless it is of the opinion that the interrogations sought are necessary either for disposing fairly of the cause or matter or for saving costs. - Anton Piller Order Following the case of Anton Piller KG vs Manufacturing Processes Limited (1976) 1 Ch 55, the court had the power to order the defendant to allow the plaintiff's lawyer to enter and search premises for relevant evidence which can be removed. The preconditions are: - very strong prima facie case; - the damage, potential or actual, must be very serious to the plaintiff; and - there must be clear evidence that the defendant has in his possession incriminating documents or things, and that there is a real possibility that he may destroy such material before any inter partes applications can be made. Where the plaintiff applies for an Anton Piller Order, he is required to give an undertaking that if the court finds that the order or the carrying out of the order has caused loss to the defendant, and decides that the defendants should be compensated for that loss, the plaintiff shall comply any order which the court may make as regards damages. A permanent injunction may be granted where the plaintiff establishes infringement. Damages Damages are compensatory to compensate a plaintiff for loss or injury caused by the infringement of his intellectual property rights and not to punish the defendant. - Patents Section 67(1)(c) and (d) provides that in infringement proceedings the proprietor of a patent may claim for damages and an account of the profits derived by him from the infringement. There are restrictions on recovery of damages for infringement in that damages will not be awarded and an account of profit will not be made against a defendant if he proves that at the time of the infringement he was not aware that the product is a patented product, or if the infringement was committed during the period of six (6) months immediately following the end of the prescribed period of renewal fee and any additional fee are paid. (See Section 69(1) and (2).) - Trademarks Section 16(2) provides that in an action for infringement, all such relief by way of damages, injunction, account or otherwise is available to him as is available in respect of the infringement of any other property right. - Industrial Designs Section 48(1) provides that in infringement proceedings in any industrial design is actionable by the registered owner and remedies available are by way of damages, injunction or account of profits. However, the court will not award damages and order an account of profits in respect of the same infringement. Section 52 gives further restriction on recovery of damages or profits if the registered owner or an exclusive licensee of the industrial designs fails to register the transaction before the end of the period of six months beginning with its date or if the court is satisfied that it was not practicable to make such an application before the end of that period and it was made as soon as practicable after the end of the period. - Copyright Section 99(2) provides that in an action for infringement of copyright, all such relief by way of damages, injunction, account or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right. If the defendant in an action for infringement showed that at the time of the infringement he did not know and had no reason to believe the work was copyrighted, the plaintiff is not entitled to damages against him, but this is without prejudice to any other remedy. (Section 100(1)) The court may in any action for infringement of copyright take other circumstances such as the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement award such additional damages as the justice of the case may require. - Layout-Designs Section 23(1)(a) and (b) provides the remedies available to the owner of layout-design rights in cases of infringement of their layout-design rights which include payment of damages as well as an account of profits. Section 23(3) gives the court power to consider circumstances such as the flagrancy of the infringement and any benefit accruing to the defendant, when the court decides whether to award such damages or additional damages as the justice of the case may require. In conclusion, as damages are compensatory the plaintiff has the option to elect to sue for an account of profits. It is an equitable remedy and is in the discretion of the court and whether the court is prepared to make such an order depending on the circumstances of the case. The actual method by which damages are to be assessed would depend on how the plaintiff exploited his intellectual property rights. Destruction To facilitate the enforcement of an injunction, a court may exercise the discretion to order the delivery up of infringing articles and documents for destruction. - Patents Section 67(1)(b) provides for delivery or destruction of any patented product in relation to which the patent is infringed or any article in which the product is inextricably comprised or any implement the predominant use of which has been in the creation of the infringing product. - Trademarks Section 18(4) provides for the delivery of infringing goods, material or articles to such person as the court may direct but the application has to be made after the end of a certain time-limit. Section 17(1) provides for order for erasure of offending sign in cases of trademark infringement or if not reasonably practicable, to destroy the infringing goods. - Industrial designs Section 53(1) provides for the court to order for delivery up of infringing articles and section 54(1) provides that an application may be made to the court for order for disposal or of forfeiture of infringing articles. - Copyright The court may order that any infringing copy, or any article which is specifically designed or adapted for making copies of a work or other subject-matter and which has been or is to be used for making infringing copies of the work or subject-matter, in the possession of the defendant or before the court, be delivered up to the plaintiff or to such other person as it may direct who shall retain the copy or object pending the making of an order. (Section 101) The court may order that the infringing copy or other object be forfeited to the plaintiff or destroyed or otherwise dealt with as the court thinks fit. (Section 212) Other persons having an interest in the copy or other object are entitled to participate in the proceedings. (Section 212(3)) In considering what order, if any, shall be made, the court shall have regard to whether other remedies are available in action for copyright infringement would be adequate to compensate the plaintiff and to protect the plaintiff's interest. Where there is more that one person interested in the copy or other articles, the court may direct that the object be sold or otherwise dealt with and the proceeds divided, or make any other order as it thinks just. (Section 212(5)) - Layout-Designs A court may make an order for the delivery up or destruction of any article which are infringing articles. (Section 23(1)(c) and (d)) Other remedies Section 102(1) of the Copyright Order provides for the right to seize infringing copies which are found exposed or otherwise immediately available for sale or hire with the requirement that notice of time and place of the proposed seizure must be given to a local police station.]
[Answer 10: In Brunei, the High Court Rules supplement the specific provisions of the intellectual property laws which contain provisions that give the court the authority to impose provisional measures to prevent infringement, including the granting of ex parte orders to protect the intellectual property right owner. Order 29, Rule 9, provides that the court may by order grant injunction in all cases in which it appears to the court to be just and convenient to do so. Any such order may be made either unconditionally or on such terms and conditions as the court thinks fit. A court can order a temporary order which remains in force until the trial or until amended by further order. It may be obtained by an application to court by summons supported by affidavit and whenever the application is one of urgency, it may be made ex parte.]