Intellectual Property, Injunctions, and Proportionality: Towards a Uniform Approach

Abstract

This article examines the role of proportionality in the context of injunctive relief. It highlights the need for flexibility where an injunction could impose excessive burdens on infringers or third parties, such as in cases involving minor infringements, complex products, or conflicting fundamental rights. The article argues for a uniform test, positioning proportionality as a hardship clause that enables courts to tailor the scope or timing of injunctions through measures such as grace periods and carve-outs. Although the primary focus is on injunctive relief, the article also considers the relevance of proportionality for corrective measures such as destruction, removal, and recall. By providing a structured framework, the article aims to support courts in striking a fair balance between effective enforcement and the interests potentially affected by an injunction.