Can an interim injunction become a permanent enforcement solution in IP litigation? For IP practitioners in Italy, the answer has, for decades, been a resounding yes. However, the answer recently provided by the CJEU in Case C-132/25 has turned this question on its head, with important implications for any business exposed to IP litigation in Italy.

This judgment by the Court of Justice of the European Union (the "CJEU") originates in a trade mark dispute between two Italian companies.^[1] In 2018, the proprietor of a figurative mark successfully obtained a preliminary injunction from the Court of Rome which blocked the defendant from using a name that infringed the claimant's registered trade mark. The dispute appeared resolved, as neither the claimant nor the defendant initiated further proceedings to obtain a final decision on the merits.

Notably, Article 132(4) of the Italian Industrial Property Code (the "IPC") provides that an interim order with the 'anticipatory' effect of a final judgment does not require the parties to initiate full proceedings for the order's confirmation. Measures with anticipatory effect are those capable of producing the same effects as a final judgment handed down after full proceedings on the merits. In accordance with unanimous interpretation and best practice in Italy, preliminary injunctions are typically considered to be anticipatory measures.  

Several years later, as infringement of the registered trade mark resumed, the claimant under the original interim proceedings enforced the preliminary injunction against the same defendant. However, the defendant challenged the continued validity of the preliminary injunction, arguing that it should no longer apply because the interim order had not been 'confirmed' by a final judgement. This challenge was based on the alleged conflict between Article 132(4) of the IPC and Article 9(5) of Directive 2004/48/EC (the "IP Enforcement Directive").

Article 9(5) of the IP Enforcement Directive governs the lifespan of provisional measures in IP disputes, requiring that such measures - which include preliminary injunctions, and orders for the seizure or delivery up of allegedly infringing goods - be "revoked or otherwise cease to have effect, upon request of the defendant, if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case”. Where the responsible court does not determine that period, it must not exceed "20 working days or 31 calendar days, whichever is the longer".

This dispute ultimately reached the Italian Supreme Court, which referred to the CJEU the question of whether the Italian approach to provisional measures is compatible with EU law – specifically, with Article 9(5) of the IP Enforcement Directive.

Referral to the CJEU

The CJEU’s response? EU law precludes national legislation allowing such measures to remain in force where the claimant fails to bring proceedings on the merits, provided that the defendant applies for the revocation or cessation of said measures. The Court’s key findings included the following:

• The Court squarely rejected the argument that the anticipatory character of a measure could justify an exception to Article 9(5) of the IP Enforcement Directive, holding instead that all provisional measures are, by definition, temporary. This means that "any possible willingness of the parties to accept the interim judgment as a 'final' resolution to their dispute cannot alter the legal nature of a measure characterised as 'provisional'"; in other words, the practical effect of these measures does not alter their legal classification.^[2] 
• The Court emphasised that Article 9(5) is intended to provide a procedural safeguard for defendants, ensuring that a party subject to a provisional measure is not left indefinitely bound by it in the absence of substantive judicial review. This interpretation reflects the IP Enforcement Directive’s broader objective of maintaining a fair balance between effective enforcement of IP rights and the protection of the rights of defence (including proportionality and the prevention of abuse), as well as fundamental rights such as access to justice under the TRIPS Agreement and the Charter of Fundamental Rights of the European Union.
• The Court also dismissed arguments based on procedural economy. While national systems may pursue efficiency, this cannot override the explicit procedural guarantees established by EU law.

It is now up to the Italian Supreme Court to apply the legal principle expressed by the CJEU and, specifically, to clarify whether preliminary injunctions with anticipatory effect in accordance with Article 132(4) of the IPC are measures which fall within scope of Article 9(5) of the IP Enforcement Directive. A clarification in the positive appears almost inevitable given the CJEU's ruling. However, it remains to be seen exactly how the Italian Supreme Court will apply this ruling, and the ripple effect such application will have on broader civil code and contentious practice.

Implications for IP litigation in Italy

The CJEU’s ruling will have significant consequences for Italy, where so‑called 'anticipatory' preliminary injunctions have long played a central role in IP litigation.

In the Italian context, injunctions issued under Article 132(4) of the IPC have come to be regarded as a flexible tool for IP holders to obtain sufficient protection of their rights without engaging in full trial, which is considered to be time- and cost-inefficient in circumstances where a preliminary injunction can achieve the same enforcement goal. As such, anticipatory proceedings have evolved into what is effectively a 'mini-trial'; although formally characterised as summary proceedings, they differ from full proceedings primarily in the scope of remedies available, rather than in the depth of the court’s examination. Indeed, the courts often engage in a detailed assessment of the issues notwithstanding the ostensibly summary nature of the process, and even appoint technical experts where appropriate. The availability of an interim appeal also ensures that a case can be reviewed by a different panel of three judges, and it is not uncommon for first-instance decisions to be overturned at this stage. The resulting system is generally regarded as satisfactory for all the parties involved, as attested to by the fact that defendants rarely initiate full proceedings on the merits, often to avoid the risk of being ordered to pay damages following a complete trial. As a result, reliance on preliminary injunctions as de facto final remedies has gradually become standard practice in Italian IP litigation.

This system will be impacted radically by the CJEU's ruling. Whilst provisional relief will likely remain a powerful tool, it will no longer be self‑sufficient nor available as the 'final word' in cases where the defendant is prepared to challenge it procedurally. It is not unreasonable to expect that provisional measures will be sought with less frequency, and that judges will be inclined to place lesser focus on such preliminary proceedings in the knowledge that cases will almost always be litigated in full trial proceedings. Judges may also adopt a stricter attitude towards the use the interim relief, granting orders for preliminary injunctions only in truly exceptional and urgent circumstances. Uncertainty regarding the validity of past and pending preliminary injunction will also arise, opening the door to opportunistic and predatory behaviour in the market and putting pressure on IP holders to rethink their enforcement strategy in Italy.

Practical takeaways for clients with Italian exposure

Clients currently involved in, or considering, IP litigation in Italy should carefully assess the impact of the CJEU’s ruling on their litigation strategy. Immediate next steps to be taken with the support of IP advisors should include the following:

1. Review existing injunctions. Right holders should identify any provisional measures currently in force where no proceedings on the merits have been initiated and the relevant time limits have expired. Such measures may now be vulnerable to challenge if the defendant takes procedural action.
2. Prepare for merits litigation earlier. Claimants should adapt their strategy by preparing full merits arguments and evidence at an earlier stage in litigation, considering whether to initiate proceedings proactively to protect interim relief and factoring the likelihood of extended litigation into costs and resource planning.
3. Monitor defendant behaviour closely. As defendants now have a clear EU law basis to seek revocation of anticipatory measures, close monitoring of their procedural strategy is essential.
4. Factor litigation appetite into settlement discussions. The ruling alters the balance of negotiating power: claimants can no longer assume that interim relief provides long‑term certainty, while defendants now have a credible mechanism to force escalation to a full trial. Both sides should reassess their leverage accordingly when preparing for settlement negotiations.

_{^{[1] Judgment of 23 April 2026, M.M. Ristorazione Srl v Villa Ramazzini Srl, C-132/25, EU:C:2026:340.
[2] M.M. Ristorazione, paragraph 46; cf. judgment of 16 June 1998, Hermès International v FHT Marketing Choice BV, C-53/96, EU:C:1998:292, paragraph 44.}}