Preliminary Injunction For Trademarks And Trade Names

Author:Mr Sergio Ellmann and Maria Alejandra Hoschoian
Profession:Marval O'Farrell & Mairal

On November 15, 2011, in the case "Crocito, Fabián Rafael et al v. Gel Technologies Corp. Suc. Argentina on Interim injunctions", Division 1 of the National Court of Appeals on Federal Civil and Commercial Matters carefully distinguished between trademark and trade name to partially grant an interim injunction.

The plaintiff, managing partner of Gel Technologies S.R.L., had requested a preliminary injunction to enjoin defendant from using "GEL TECHNOLOGIES" as a trademark and trade name, and "GEL-TEC" as a trademark. The first instance judge granted the injunction, ordering simultaneously that a bond be posted by the plaintiff. The Court of Appeals partially reversed the decision of the lower court.

In so doing, the Court recalled that, owing to their nature, preliminary injunctions do not require an absolute certainty as to the existence of the alleged right, but only a likelihood of rights (verisimilitude); that under art. 50 of the GATT TRIPs Agreement injunctions can be obtained in advance of the final court decision without giving defendant the chance to decide whether or not to continue the objected use; and that the issue had to be carefully scrutinized because it was tantamount to anticipating the final...

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