CJEU: Enforcement Directive precludes national provision that allows anticipatory measures to continue to apply without (timely) instituted proceedings on the merits of the case
08-05-2026 Print this page
Provisional measures cease to have effect at the defendant's request if the applicant has not instituted proceedings within the period laid down in Article 9(5) of Directive 2004/48 [Enforcement Directive]. Article 9(5) Enforcement Directive covers a broad range of provisional measures and does not preclude provisional measures intended to anticipate the effects of the decision on the merits of the case. The objective of this provision is to ensure that the provisional measures concerned do not continue to apply indefinitely without a decision on the merits of the case and to prevent situations in which a provisional measure, which might subsequently prove to be unjustified, would continue to affect the defendant. This would undermine the principle of proportionality, referred to in Article 3(2) Enforcement Directive.
Case C-132/25 M.M. Ristorazione v Villa Ramazzini
This case concerns the proceedings between M.M. Ristorazione Srl and Villa Ramazzini Srl, the proprietor of the figurative mark Mò Mò, concerning an application by M.M. Ristorazione seeking a declaration that an interim order prohibiting M.M. Ristorazione from using the distinctive sign ‘Mò Mò Pizza, Sapori e Salute’ and any other distinctive sign containing the mark Mò Mò was ineffective, because Villa Ramazzini had not brought proceedings on the merits of the case to establish its right.
Italian law (Article 132 IPC) makes a distinction between two types of measures: '(ordinary) provisional measures' and 'anticipatory measures'. The referring court notes, in the first place, that, although Article 132(3) of the IPC lays down the general rule that a provisional measure becomes ineffective if the proceedings on the merits of the case are not brought within the mandatory time limit prescribed, Article 132(4) of the IPC nevertheless provides that that rule does not apply to urgent measures adopted pursuant to Article 700 of the CPC and to other provisional measures intended to anticipate the effects of the decision on the merits, each party being able to bring proceedings on the merits.
The national courts (Tribunale and Corte di Appello di Roma) held that, where anticipatory measures have become final, they may, on their own, definitively protect the applicant’s right. In that regard, those measures should be distinguished from the measures provided for in Article 9 Enforcement Diretive, which are characterised by the intention of preserving a state of affairs so that the main decision can have effect in the future. According to those courts, the rules governing anticipatory measures are intended to comply with the principle of procedural economy, which is governed by Article 3 Enforcement Directive.
Preliminary question:
Must Article 9(5) of Directive [2004/48] be interpreted as precluding a provision of national law, namely Article 132(4) of [the IPC] under which the requirement for the protective measure to cease to have effect in the event of failure to institute the substantive proceedings within a mandatory time limit, contained in Article 132(3) of the [IPC], does not apply to interim measures issued pursuant to Article 700 of the [CPC] and to other protective measures capable of anticipating the effects of the judgment on the substance, even though, in such cases, either party may institute the substantive proceedings?’
Answer CJEU:
Article 9(5) of Directive 2004/48 [Enforcement Directive] must be interpreted as precluding the application of a national provision which allows for certain provisional measures, such as provisional measures intended to anticipate the effects of a decision on the merits of the case, to continue to apply even though the applicant has not instituted proceedings leading to such a decision within the period laid down in Article 9(5) and the defendant requests that those provisional measures be revoked or otherwise cease to have effect.
IPPT-version will follow later
