On the Admissibility of the Presidential Ordinance for Measures to Terminate Acts for the Infringement of Industrial Property Rights

• Author: Georgeta Modiga, Andreea Miclea
• Pages: 113-117

Legal Sciences in the New Millennium

113

On the Admissibility of the Presidential Ordinance for Measures to

Terminate Acts for the Infringement of Industrial Property Rights

Georgeta Modiga1, Andreea Miclea2

Abstract: Given that the sp ecial laws on industrial property (trade marks, geographical indications, patents,

models and industrial designs) do not contain any special rules regarding the procedural particularities of the

Presidential Ordinance for taking measures to stop acts of infringement of industrial property rights, we propose

to present the special legal condition s of common law for the exercise of the presidential ordinance, provided

for in art. 997, par. 1 Code of Civil Procedure, in the light of the particularities determined by the specificity of

industrial property rights.

Keywords: Presidential Ordinance; industrial property rights; common law

In principle, the presidential ordinance may also be issued in the field of industrial property for the

cessation of acts of infringement of industrial property rights, if the special legal requirements of

common law are cumulatively fulfilled: the appearance of the law, the urgency of the measure to be

taken, the temporal character of the measure and the failure to judge the fund.

The peculiarities are determined by the specificity of industrial property rights, which must be found in

titles obtained in procedures governed by special laws, these being absolute real rights of industrial

property, erga omnes opposable (Roș, 2003, pp. 633-634) (within the limits of the principles of

specialty, territoriality and temporary character, established by Law for each of these rights), with the

content expressly and legally regulated.

The special regulations in the matter insurance provisions in the industrial property domain expressly

providing for the possibility for the plaintiff to make bail. The examination of this condition of

admissibility is, however, a matter of further examination of the other conditions of admissibility of the

presidential decree, which must be retained as previously agreed, given their mandatory and peremptory

character (in relation to the optional initial and the dilatory nature of the bail).

The condition- premises from which the examination of the admissibility of the request made by way

of the Presidential Ordinance is the appearance of the subjective right which would be prejudiced by

delay and which must be retained accordingly or in connection with which an imminent loss would

occur and which could not be repaired and, consequently, necessary to be prevented.

1 Professor, PhD, Faculty of Law, Danubius University of Galati, Romania, Address: 3 Galati Blvd., Galati 800654, Romania,

Tel.: +40372361102, Corresponding author: georgeta.modiga@univ-danubius.ro.

2 PhD in progress, University of Titu Maiorescu, Romania, Address: 22 Dâmbovnicului Str., Bucharest 040441, Romania, E-

mail: andreea.miclea@vasiliumiclea.ro.