Preliminary injunctions: what approach to liability is taken across the globe?
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In disputes concerning the alleged infringement of intellectual property (“IP”) rights, a court may grant a preliminary injunction (“PI”), for the benefit of the IP rights-holder, to restrain an alleged infringer from continuing the alleged infringing act while the case is pending or progressing to a trial. Strict liability may arise in this context where the PI is then overturned following the court’s finding that there has been no infringement; i.e., once the PI is lifted, the affected parties can claim for damages caused while the PI was in force without having to prove that the PI applicant was negligent or acted with fault. Without strict liability, there must be proof of negligence or fault to be entitled to any damages.
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