IRELAND Law and Practice Contributed by: Hannah McLoughlin, Jane Bourke, Karen Gallagher and Kevin Doyle, Pinsent Masons Ireland LLP
Injunctions are equitable remedies, and the presiding judge has discretion in granting injunctions. Injunctive relief will generally be granted to restrain a threat or prevent ongoing trade mark or copyright infringement. Traditionally, Irish courts applied a three- stage test, derived from American Cyanamid Co v Ethicon Ltd [1975] A.C. 396, and adopted in Ireland in Campus Oil v The Minister for Industry (No 2) (1983) IR 88. Under the Campus Oil test, when considering an application for an injunction, the court would assess the following questions. • Is there a serious issue to be tried? • Would damages provide an adequate remedy for either the applicant or the defendant? • If damages are inadequate for both parties, where does the balance of convenience lie, and should the status quo be preserved? This approach has since evolved. Following the Supreme Court’s decision in Merck Sharp & Dohme v Clonmel Healthcare [2020] 2 I.R. 1 [2019] IESC 65, a more flexible test is now applied. In this case, it was emphasised that the adequacy of damages is usually the most significant factor in assessing the balance of convenience or justice. However, other considerations may also be relevant and should be weighed to ensure fairness pending trial, acknowledging that a trial may never occur. According to the reframed test, the first step is to consider whether a permanent injunction would likely be granted if the plaintiff succeeds at trial. If not, it is highly unlikely that an interlocutory injunc - tion seeking similar relief would be granted. The court should then assess whether there is a fair question to be tried, which may include whether the case is likely to proceed to trial. In many cases, applying the traditional Campus Oil test will lead to the correct out - come, but the qualifications to that approach must be kept in mind. Requirements for Preliminary Injunction in Trade Mark or Copyright Cases As outlined above, to obtain a preliminary injunc - tion, a trade mark or copyright owner must satisfy the Merck test. This means first demonstrating that there is a serious issue to be tried, which is a relatively low threshold. The applicant must then demonstrate
that the balance of convenience favours granting the injunction (including consideration of factors such as whether the harm they face can be adequately com - pensated in damages). Requirements to Defend a Preliminary Injunction A defendant can oppose a preliminary injunction by arguing that damages would provide an adequate remedy for the claimant, thereby undermining any claim of irreparable harm. They may also rely on equi - table defences such as acquiescence or delay, which suggest that the applicant has not acted promptly or fairly. In addition, the defendant can seek to show that the balance of convenience lies against granting the injunction – for example, where the relief sought would cause disproportionate harm to them compared to The Copyright Act and the Trade Marks Act expressly provide for a number of monetary remedies, includ - ing relief by way of damages, account of profits, or possibly enhanced damages. The court may award aggravated or exemplary damages or both aggra - vated and exemplary damages. A defendant cannot recover both damages and an account of profits; they must elect between these remedies. The legislation requires the court to consider all the circumstances of the case and determine whether the award sought is just and proportionate. Where the defendant can show that they were unaware of the infringement and had no reason to believe they were infringing, damages should not be awarded. any benefit to the claimant. 10.2 Monetary Remedies There are no specific rules on the type or amount of damages, nor is there any set formula for calculating them, apart from the legislative considerations noted above. In copyright cases, the court has wide discre - tion, and will typically consider the actual damage (ie, the loss suffered), the account of profits made by the infringer, and the nature of the infringement (including whether aggravated or exemplary damages should be awarded). For trade mark cases, the court may apply similar con - siderations but can also take into account the number
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