Our regulations allow for requesting certain evidence before filing a lawsuit for the infringement of our trademark or trade name. This request is known as preliminary proceedings. It is regulated in Article 256, points 7 and 8 of the Civil Procedure Law.
The specific evidence that can be requested is:
- Obtaining data on the potential infringer, the origin and distribution networks of the works, goods, or services. Among these, the law highlights:
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- The names and addresses of the producers, manufacturers, distributors, suppliers, and providers of the goods and services, as well as those who, for commercial purposes, have been in possession of the goods.
- The names and addresses of the wholesalers and retailers to whom the goods or services have been distributed.
- The quantities produced, manufactured, delivered, received, or ordered, and the amounts paid as price for the goods or services in question, as well as the models and technical characteristics of the goods.
- The exhibition of banking, financial, commercial, or customs documents, produced within a certain period and presumed to be in the possession of the party who would be sued as responsible.
This second type of evidence can only be requested if there is initial proof of the infringement’s reality, which could be, for example, a sample of the copies, goods, or products in which the infringement is materialized.
This mechanism is very useful for cases where a claim for damages is filed due to the improper use of a trademark or trade name. It will allow the lawsuit to be filed with much more substantiation, enabling the trademark owner not to initiate litigation blindly.
Furthermore, it can be a way to reduce costs. The trademark owner will be able to verify beforehand if such an infringement has occurred and if it is worthwhile to initiate legal action. And, for their part, the infringer may choose to try to find an out-of-court settlement. All of this culminates in a reduction of costs for both parties.
