Pending the interpretation that the Court of Justice will provide regarding the possible conflict between the so-called anticipatory interim measures governed by the Italian Intellectual Property Code and Enforcement directive, we would like to point out a very recent measure obtained by our Law Firm, which represents the first (or one of the first) decisions issued by a Court of first instance after the matter was remitted to the Court of Justice.
As is well known, a preliminary ruling is currently pending before the Court of Justice to assess a possible conflict between Article 132, paragraph IV, of the Intellectual Property Code, which establishes, with reference to precautionary measures suitable for anticipating the effects, an exception to the rule of the necessary introduction of proceedings on the merits, and Article 95 of the Enforcement Directive, which, in the event of failure to start subsequent proceedings on the merits, provides instead for the lapse of the effects of the “interim injunction”, comparable to the injunction referred to in Italian law.
Specifically, the Court of Genova, Business Section, with order issued on January 5, 2026, rejected the petition filed pursuant to Article 669-novies of the Italian Code of Civil Procedure aimed at declaring the ineffectiveness of an injunction due to failure to initiate subsequent proceedings on the merits, all on the assumption of a conflict between Article 132, paragraph IV, of the Intellectual Property Code and Article 9, paragraph 5, of the Enforcement Directive.
The Judge of Genova therefore confirmed the full effectiveness of the precautionary injunction, which had not been followed by the proceedings on the merits, considering convincing the reasoning of the previous decision of January 5, 2024, of the Court of Milan, according to which there is no conflict with European law, as the defendant remains in full possession of all defensive guarantees both within the precautionary proceedings themselves, through the appeal pursuant to Article 669terdecies of the Italian Code of Civil Procedure, and subsequently through its independent decision to start a proceedings on the merits (guarantees which, in the case brought before the Court of Genoa, the defendant had decided not to activate).
In essence, the Court clarified that Article 132, paragraph IV, of the Italian Industrial Property Code is compatible with the Enforcement Directive precisely because it provides that each party may initiate proceedings on the merits; in this way, the losing party is guaranteed that it can assert its case in the proceedings on the merits, with the possibility of requesting the revocation of the precautionary measure that is unfavorable to it.
This is a very encouraging measure in view of the decision of the Court of Justice since, in the opinion of the author, the injunction is undoubtedly a particularly effective deflationary tool. We can only wait for the decision of the Court of Justice.