Can a provisional injunction remain in force if the successful party never brings the matter before the judge on the merits?

Anyone seeking summary injunctive relief against an alleged infringement of a trademark or other intellectual property rights, sometimes seems to think that this settles the matter once and for all. But the Court of Justice ruled on April 23, 2026 (Case C-132/25, M.M. Ristorazione v. Villa Ramazzini) that such a preliminary injunction cannot remain in place forever without the plaintiff filing an action on the merits within the statutory period. If he fails to do so, the defendant can seek relief - even if the order “anticipates” a ruling on the merits.

The facts

Villa Ramazzini, holder of the Italian figurative mark Mò Mò, obtained a preliminary injunction against M.M. Ristorazione at the Rome court in March 2018. That injunction prohibited the use of the sign “Mò Mò Pizza, Sapori e Salute,” ordered its removal from the signboard and attached a penalty for each day of delay.

Villa Ramazzini then never instituted proceedings on the merits. M.M. Ristorazione thereupon sought a decision that the injunction had ceased to have effect, relying on Article 9(5) of the Enforcement Directive.

The Italian courts at first instance and on appeal rejected that request. They relied on a provision in the Italian Industrial Property Code that declares the expiry sanction - the loss of effect in the absence of timely proceedings on the merits - inapplicable to so-called “anticipatory measures”: measures that by their nature already anticipate a decision on the merits. According to those judges, a preliminary injunction fell under this and thus remained valid. The Italian Corte suprema di cassazione had doubts and referred the question to the Court of Justice.

The decision

The Court holds that Article 9(5) of the Enforcement Directive precludes national legislation that allows certain provisional measures - including those that anticipate the effects of a decision on the merits - to remain in place even though the plaintiff has not instituted proceedings on the merits within the stipulated time limit and the defendant seeks relief.

The Court's reasoning proceeds in four steps. First, the text of Article 9(5), read together with paragraphs 1 and 2, covers a wide range of provisional measures. The provision does not exclude measures that anticipate a judgment on the merits (para. 33).

The Court then points out the context: the provision gives the defendant the right to terminate the measure if the plaintiff does not pursue the dispute. That termination is not automatic, but at the defendant's request (paragraphs 34-35).

As to intent, the Court recalls that the Directive seeks to ensure fair and proportionate enforcement and to prevent abuse. Article 9(5) is intended to ensure that an interim measure does not “continue to apply indefinitely without a decision on the merits of the case" (para. 39). The provision contains no exception and constitutes a safeguard in favor of the defendant as a counterbalance to the speedy provisional measures that the plaintiff can obtain (para. 40).

Finally, the Court rejects the Italian arguments. The invoked principle of procedural economy cannot override the express provisions of EU law (paragraph 42). And the rule in Article 2(1) that Member States may retain more favorable measures for rightholders does not allow an anticipatory measure to be maintained without an obligation to bring proceedings on the merits: those conditions of application do not fall within the procedural autonomy of the Member States (paragraph 43). Whether a concrete “anticipatory measure” constitutes a provisional measure within the meaning of Article 9(1) is left to the national court - although it notes that the mere fact that an order may become final does not remove its provisional legal nature (paragraphs 45-47).

Legal analysis and interpretation

Court closes loophole on “atypical” provisional measure

The essence of the rulingt is that the label that national law places on a measure - “anticipatory,” “atypical,” “by its nature definitively protective” - does not determine the applicability of Article 9(5). What is decisive is functional reality: as long as both plaintiff and defendant can initiate proceedings on the merits, and as long as the legislature has classified the measure itself as provisional, it is not legally final (para. 46). The Court here consistently builds on its older case law on Article 50 of the TRIPS Agreement, in which it already ruled that even the parties' willingness to accept a summary judgment as final does not change the provisional legal nature (Hermès, para. 44, cited in para. 47).

This functional approach deserves approval. It prevents Member States from using a qualification trick to erode the safeguards of the Directive. The reasoning is also in line with the Phoenix Contactruling, in which the Court emphasized the effectiveness of provisional measures; by contrast, in this case it highlights the mirror side, namely the safeguard against their disproportionate or prolonged use.

The limit of the “favorability principle” of Article 2

More theoretically interesting is the rejection of the Article 2(1) argument. Member States may offer more protection to rightholders than the Directive, but the Court holds that this principle of favorability does not extend to eroding the very conditions of application of provisional measures (paragraph 43). The Court frames this within the balance sought by the Union legislature between the rights of the holder and the rights of defense under Articles 47 and 48 of the Charter of Fundamental Rights, read in the light of Article 50 of the TRIPS Agreement.

The message is principled: a “benefit” to the rights holder that undermines the defendant's defense rights in the long run is not an admitted favorable measure but an upset of the balance guarded by the directive. That reading will prove reusable in future disputes over national enforcement rules.

Relevance to Belgian law: a reassuring but not unnecessary statement

For Belgian practice, the ruling is especially affirmative. The Belgian legislature has transposed Article 9(5) of the Enforcement Directive into Article 1369ter Judicial Code. That provision restates the directive text almost verbatim: when a person who may act to stop an infringement of an intellectual property right, applies Article 584 of the Judicial Code, the provisional measures are revoked or cease to have effect at the defendant's request if the plaintiff does not institute proceedings on the merits within a reasonable time - in the absence of a time limit set by the court, within a maximum of twenty working days or thirty-one days from the date of service of the order.

Unlike Italian law, Belgian law has no exception that exempts “anticipatory measures” from this rule. Thus, the Belgian transposition does not contain the defect that the Court sanctioned in this case. Nevertheless, the ruling is not without significance. It confirms that the provisional nature of a Belgian summary judgment should not be lost sight of, even when, in practice, an injunction is perceived as an end point. Moreover, the judgment is directive in its interpretation of article 1369ter Ger.W. itself, which must be read in conformity with the directive.

Specifically, what does this mean?

For holders of intellectual property rights. A preliminary injunction is not an end run around. Anyone who relies on a provisional measure without initiating proceedings on the merits runs the risk that the opposing party will ask for it to be lifted as soon as the deadline has expired. Those who want to permanently entrench the protection should therefore plan the proceedings on the merits immediately as well - or carefully weigh whether the opposing party will actually acquiesce to the injunction. Do not count on tacit perpetuation.

For those facing a preliminary injunction. The ruling strengthens a defense remedy that in practice is sometimes underused. If the opposing party has obtained an injunction but never commenced proceedings on the merits within the time limit, the lifting or expiration of the measure can be claimed. It is therefore advisable to actively monitor, after service of an interim measure, whether and when proceedings on the merits are commenced, and carefully note the relevant deadlines.

Frequently asked questions (FAQ)

Do I always have to initiate proceedings on the merits after winning summary proceedings?
Not in every case, but when you have obtained interim measures in an intellectual property dispute on the basis of article 584 of the Judicial Code. In that case, article 1369ter of the Judicial Code, following article 9, paragraph 5, of the Enforcement Directive, stipulates that you must institute proceedings on the merits within a reasonable period of time. If you fail to do so, the opposing party may request the revocation of the measure, or it will cease to have effect by operation of law. Outside that framework, no such obligation exists after summary proceedings.

Does a preliminary injunction automatically expire if there are no proceedings on the merits?
The law provides for two sanctions. Art. 1369 ter Ger.W. stipulates that the provisional measures are revoked at the request of the defendant or cease to have effect by operation of law if the plaintiff does not institute proceedings on the merits within the time limit. Both consequences are possible: revocation upon request as well as lapse by operation of law. In practice, those who want certainty that the measure will lapse should expressly request revocation or a determination of lapse, rather than merely waiting.

Does this also apply to an injunction that feels final in practice?
Yes. The Court of Justice holds that the provisional legal nature of a measure is not altered by the fact that the parties actually accept the order as a final settlement. As long as substantive proceedings are still possible, the measure remains provisional and is subject to the guarantee of Article 9(5).

Conclusion

With the ruling of April 23, 2026, the Court of Justice confirms that the guarantee of Article 9(5) of the Enforcement Directive does not tolerate exceptions: an anticipatory measure in an intellectual property dispute may not remain in force indefinitely when the plaintiff does not initiate proceedings on the merits and the defendant seeks relief. The label “anticipatory measure” does not change this. For Belgian law, which already has a conforming transposition with art. 1369ter Jud. C., this is a welcome confirmation that once again sharpens the provisional nature of the interlocutory injunction.