The Market Court: Domain Name Dispute and the Appellant's Allegedly Established Trademarks

The Market Court issued a domain name decision 418/16 on 1 July 2016. According to the court, the appellant, who was opposing a domain name registration, could not prove that its trademarks were evidently established at the time of the domain name application. In result, the revocation and transfer request was dismissed.

Background

The Finnish communications regulatory authority (FICORA) granted a domain name ppi­net.fi to a person X on 9 November 2013.

Te­lia­So­ne­ra Fin­land Oyj (TeliaSonera) requested FICORA to cancel the domain name and to transfer it to TeliaSonera. TeliaSonera argued that the domain name is a derivative of its established trademarks iNET KES­KUS­KA­TU, INET and PP.INET.FI.

FICORA dismissed the request on 18 December 2014. According to FICORA, the establishment of the marks is not evident. 

TeliaSonera filed an appeal to the Market Court against the FICORA's decision.

The Market Court issued its decision 418/16 on 1 July 2016.

The Market Court

According to section 4 paragraph 3 of Domain Name Act 228/2003 (amendments up to 397/2009 included), a domain name shall not be illegally based on a protected name or trademark owned by another party or on a natural person’s name.

According to section 3 sub-paragraph 3 of the Act, protected name or trademark means a name or trademark that has been entered into the trade register or into the registers of trademarks, associations, foundations, or political parties; or an established name, a secondary mark or trademark referred to in the Business Names Act (128/1979) or Trademarks Act (7/1964); or a name of a public body, unincorporated state enterprise, independent public corporation, public association, or diplomatic mission of a foreign state or their bodies.

According to section 12 paragraph 1 sub-paragraph 4 of the Act, FICORA may revoke a domain name, if there are weighty reasons to suspect that the domain name is a derivative of a protected name or trademark or a derivative of a natural person’s name that has been obtained with the obvious intent of obtaining benefit or harming another, and the holder of the name or trademark requests that the name be revoked and the domain name holder has not presented an acceptable reason for its right within a period of two weeks.

According to section 12 paragraph 2 of the Act, FICORA may transfer a domain name that has been revoked by virtue of paragraph 1 (2–4) to a party that has requested the revocation.

The court referred to Supreme Administrative Court (SAC) ruling 2006:41, where SAC stated that the competence of FICORA is, regarding the section 12 paragraph 1 sub-paragraph 4 of the Act, only limited to situations where it is evident that the domain name is an unlawful derivative of a protected trademark.

The court also referred to legal literature where it is stated that the establishment of the mark has to be evident. This requirement is justifiable because of the simplified procedure used in the assessment of the domain name applications.

The court had to assess whether the appellant's marks were evidently established at the time of the domain name application on 9 November 2013. If that was the case, the marks are then considered as protected trademarks and eligible for the protection provided in the section 12 paragraph 1 sub-paragraph 4.

TeliaSonera argued that the mark iNET KES­KUS­KA­TU was introduced in 1994 and it was used for a long time on a website inet.fi. According to TeliaSonera, this website was one of the most popular and used websites in Finland in the late 1990's.

TeliaSonera argued also that the mark INET has been used actively for internet services since 1995. INET was the most popular home internet plan in Finland. TeliaSonera has also had some other services with the mark INET, such as INET voice chat and INET live.

TeliaSonera argued also that the mark PP.INET.FI has been widely used for email services since 1995 and there are still many active users of the email addresses @pp.inet.fi.

The court stated that the marks of the appellant were introduced in the 1990's and they have been widely used back then. However, the assessment here required evidence of the alleged establishment at the time of the domain name application on 9 November 2013. The court stated that the provided evidence is not able to prove that the appellant's marks were evidently established at the time of the domain name application. Therefore, the marks were not protected and there was no need to assess whether the domain name has been obtained with the obvious intent of obtaining benefit or harming the appellant.

The action was dismissed.

The court ordered the appellant to pay the defendant's legal fees, in total 3 441 euros.

The Market Court: Domain Name Was Transferred Without the Consent of the Holder

The Market Court issued a domain name decision 383/16 on 27 June 2016. According to the court, there were weighty reasons to suspect that the domain name was transferred to another party without the consent of the holder of the domain name and the transferee did not present an acceptable reason for its right. The court stated that the mere sending of a transfer key in an email is not, per se, expressing the consent of the domain name holder.

Background

The Finnish communications regulatory authority (FICORA) granted a domain name suu­rel­la­sy­da­mel­la.fi to the Federation of Evangelical Lutheran Parishes in Tampere (The Federation of Parishes) on 7 September 2005. The website contains information about volunteer work in the Federation of Parishes. The Federation of Parishes has also a trademark "Suurella Sydämellä" ("With a Big Heart" in English), registered in 2011.

Agile Design Oy (Agile) has, based on a contract between it and the Federation of Parishes, taken care of the maintenance issues regarding the domain name.

In September 2013, FICORA let the Federation of Parishes to know that some problems had occurred with the name servers of the domain name. The Federation of Parishes instructed Agile to take care of these problems. On 16 September 2013, the Federation of Parishes sent an email to Agile and the email included, inter alia, a transfer key. [A fi-domain name is transferred to a new holder by using a transfer key.]

Agile used the transfer key and the domain name was transferred to it on 12 October 2013.

The Federation of Parishes requested FICORA to cancel the domain name and to transfer it back to the Federation of Parishes. The Federation of Parishes argued that the domain name was transferred to Agile without the consent of the Federation of Parishes. Agile was, according to the Federation of Parishes, only allowed to fix the occurred problems. FICORA dismissed the request on 15 June 2015.

The Federation of Parishes filed an appeal to the Market Court against the FICORA's decision. 

The Market Court issued its decision 383/16 on 27 June 2016.

The Market Court

According to section 8 paragraph 2 of Domain Name Act 228/2003 (amendments up to 397/2009 included), a domain name may be transferred to another party. The transfer shall be effective, when the transferee has made an application for the transfer in accordance with section 4 a and the holder of the domain name has consented to the transfer. [A transfer key is expressing the consent.]

According to section 12 paragraph 1 sub-paragraph 2 of the Act, FICORA may revoke a domain name, if there are weighty reasons to suspect that the domain name has been transferred to another party without the consent of the holder of the domain name, protected name or trademark, and the holder requests that the name be revoked, and the transferee has not presented an acceptable reason for its right within a period of two weeks. According to section 12 paragraph 2 of the Act, FICORA may transfer a domain name that has been revoked by virtue of paragraph 1 (2–4) to a party that has requested the revocation.

The Federation of Parishes provided evidence of the subcontract that existed between it and Agile. According to that evidence, Agile is taking care of the maintenance issues regarding the domain name. The court stated that there is a weighty reason to suspect that the domain name suu­rel­la­sy­da­mel­la.fi was transferred to Agile without the consent of the Federation of Parishes.

The court had to assess next whether Agile has presented an acceptable reason for its right.

Agile argued that the parties had conversations about the transfer and that the transfer was consensual. According to Agile, it was not a mistake that the Federation of Parishes gave the transfer key via email. The chief executive officer (CEO) of Agile told that he and a project leader B from the Federation of Parishes had conversations about the transfer during the year 2013 and it was clear to both parties that the domain name should belong to Agile. The CEO A told also that Agile could have fixed all the server problems without the transfer key and therefore the sole purpose of the transfer key was to transfer the domain name to Agile.

The project leader B confirmed that the parties had several conversations about the domain name during the year 2013. However, no conversations were held regarding the transfer of the domain name. B or the Chief information officer C, who sent the transfer key to B, did not even have the powers to authorize the transfer on behalf of the Federation of Parishes. B understood later that the transfer key was not needed in order to fix occurred problems regarding the name servers.

The Chief information officer C confirmed the statements presented by B.

The court stated that Agile has not provided any documentary evidence regarding the transfer. Agile has only referred to the consensus between the parties in the conversations in 2013. Agile could not clearly specify the moment when this consensus was reached. The statements of the parties are contradictory. Nothing, apart from the statement made by A, supports the claim that the domain name was transferred with the consent of the Federation of Parishes.

If it's not in a contract, it didn't happen!
Image courtesy of edar at Pixabay.com

The court stated that the sole purpose of a transfer key is to transfer a domain name from one registrar to another. The sending of the transfer key was not needed here in order to fix the problems regarding the name servers. However, this does not mean that the sole announcement of the transfer key to a party, who is responsible of taking care of the maintenance issues regarding the domain name, would authorize the party to transfer the domain name. 

The court concluded that Agile has not presented an acceptable reason for its right.

The court reversed the earlier decision of FICORA and the case was sent back to FICORA for the revocation and the transfer of the domain name.

The court also ordered the defendant to pay the plaintiff's legal fees, in total 22 374,36 euros plus legal interest.

The Market Court: EUTM HANGOVER is Descriptive for Pizzas

The Market Court declared invalid the registered European Union trademark HANGOVER pursuant to Article 7(1)(b-c) of the Community trademark Regulation No 207/2009 in its decision 375/16 on 17 June 2016. According to the court, the trademark is descriptive for the goods in question (class 30 for Pizzas) and therefore also devoid of any distinctive character.

After this the proprietor tried to argue that the trademark has become established, but the court did not find any evidence to support the claim and also dismissed the infringement claim (decision 376/15 on 17 June 2016).

Background

CPR Con­sep­tor Oy (CPR) is the holder of a registered European Union trademark (EUTM) no. 012274734 HAN­GO­VER (word), registered on 18 March 2014. The EUTM is registered in class 30 for Pizzas.

CPR has been using the word "HAN­GO­VER" as a pizza name since 1996. According to the company, it has 12 franchised restaurants all over Finland. Between 2005 and 2014 it has sold approximately 200 000 "HANGOVER" pizzas. According to CPR's website, the pizza contains spicy salsa sauce, mozzarella, salami, crispy bacon, pickled cucumber and jalapeños.

CPR was not happy that some of its competitors were using names "Hangover" and "Hangover Express" for their pizzas. In 2015, CPR launched trademark infringement proceedings against the competitors.

The competitors filed a counterclaim, asserting that the plaintiff’s trademark registration shall be declared invalid pursuant to Article 7(1)(b-d) and Article 52(1)(b) or it shall be declared to be revoked pursuant to Article 51(1)(b) of the Community trademark Regulation No 207/2009.

There is nothing a good pizza can't cure!
Image courtesy of jarmoluk at Pixabay.com

The Market Court

First, the court assessed the invalidity claim (decision 375/16, issued on 17 June 2016).

According to Article 51(1)(a) of the Regulation:

1. A Community trade mark shall be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings:  

a) where the Community trade mark has been registered contrary to the provisions of Article 7.

The competitors argued that the EUTM has been registered contrary to Article 7(1)(b-d). According to Article 7(1)(b-d) of the Regulation:

1. The following shall not be registered:  

(b) trade marks which are devoid of any distinctive character;
(c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;
(d) trade marks which consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade.

According to Article 7(2) of the Regulation, paragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the Community.

The court referred to the case-law of the Court of Justice (CJ) and the General Court (GC):

The Article 7(1)(c) prevents the signs or indications referred to therein from being reserved to one undertaking alone because they have been registered as trade marks. That provision thus pursues an aim in the public interest, which requires that such signs or indications may be freely used by all. [See Joined Cases C-108/97, C-109/97 Wind­sur­fing Chiem­see, para 25 and T-348/02 Quick, para 27.]

Furthermore the signs referred to by Article 7(1)(c) are signs regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services, thus enabling the consumer who acquired the product or service to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition.[See T-219/00 Ellos, para 28.]

The signs and indications referred to in Article 7(1)(c) are those which may serve in normal usage from the point of view of the target public to designate, either directly or by reference to one of their essential characteristics, the goods or service in respect of which registration is sought. [See T-19/04 Metso Paper Automation, para 24 and C-383/99 P Procter & Gamble, para 39.]

It follows that, for a sign to be caught by the prohibition set out in that provision, there must be a sufficiently direct and specific relationship between the sign and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or one of their characteristics. [See T-19/04 Metso Paper Automation, para 25.]

In order for OHIM to refuse to register a trade mark under Article 7(1)(c), it is not necessary that the signs and indications composing the mark that are referred to in that article actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes. A sign must therefore be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned. [See C-191/01 P Wrigley, para 32.]

The distinctiveness of a trade mark must be assessed, first, in relation to the goods or services in respect of which registration of the sign has been requested and, second, in relation to the perception of the section of the public targeted, which is composed of the consumers of those products or services. [See T-348/02 Quick, para 29.]

In that regard, although it is clear from Article 7(1)(c) of Regulation that each of the grounds for refusal listed in that provision is independent of the others and calls for separate examination, there is a clear overlap between the scope of the grounds for refusal set out in subparagraphs (b), (c) and (d) of Article 7(1). In particular, a word mark which is descriptive of characteristics of goods or services for the purposes of Article 7(1)(c) is, on that account, necessarily devoid of any distinctive character with regard to the same goods or services within the meaning of Article 7(1)(c). [See C-265/00 Campina Melkunie, paras 18-19, C-363/99 Koninklijke KPN Nederland, paras 67 and 86 and T-322/03 Telefon & Buch, para 111,]

The court stated that the word "hangover" ("krapula" in Finnish) refers to the condition following an abundant use of alcoholic beverages. Neither of the parties argued that the word would have some other generally known meanings.

The court considered that the relevant public, average consumers, consists of English speaking audience who understands the meaning of the word. The court stated that the Finnish consumers are part of that audience.

The competitors claimed that, inter alia, the EUTM HANGOVER designates the kind or at least one of the intended purposes of the goods [Article 7(1)(c)]. According to the companies, the relevant public understands pizza as a typical hangover food and hangover remedy.

The competitors provided also evidence of Google search results for a word "krapularuoka" ("hangover food" in English). Also a survey carried out by a Finnish newspaper in 2011 revealed that 33 percent of the 18 000 respondents think that pizza is the best hangover food. The competitors provided also evidence of several online discussion board and blog posts that are praising pizza as a hangover food or provide different recipes named, inter alia, "Hangover-pizza" or "Krapulapizza". Furthermore, the competitors referred to an interview (dated April 2013) with an executive from an online pizza ordering service. According to this executive, pizza is a hangover remedy for Finns and most orders occur immediately after holidays and on Sundays.

According to the court, the relevant Finnish public understands that the word "krapularuoka" refers to a food that people are eating, inter alia, as a remedy to ease the condition they have after an abundant use of alcoholic beverages. The court stated that, according to the relevant public, pizza is one of, if not the most, common hangover foods. The court continued and stated that this understanding has existed already before the registration of the EUTM HANGOVER.

The court referred again to CJ decision C-191/01 P Wrigley where CJ ruled that a sign must be refused if at least one of its possible meanings designates a characteristic of the goods or services concerned.

Therefore, the court stated that the mark HANGOVER has been descriptive for the goods already at the time of the registration and is thus contrary to Article 7(1)(c) of the Regulation. The mark is also devoid of any distinctive character with regard to the same goods and therefore also contrary to Article 7(1)(b) of the Regulation.

Since the request was found successful under Article 7(1)(b-c) of the Regulation it was not necessary to examine whether the additional invoked grounds for invalidation and revocation would apply.

The decision was not unanimous. One judge wrote a dissenting opinion. According to this judge, a hangover or eating pizza while having a hangover cannot be regarded as designating the characteristics of pizzas. The judge stated that, inter alia, pizza is just one of the salty and greasy foods that the people who are suffering from a hangover might find tempting. The judge concluded that the connection between the mark HANGOVER and pizzas is so vague that the EUTM HANGOVER does not go beyond the acceptable limits of suggestion. The mark is not devoid of any distinctive character either. The judge also dismissed the other invoked grounds for invalidation and revocation.

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So the EUTM HANGOVER was declared invalid pursuant to Article 7(1)(c). 

CPR still argued that the mark has been established through use. According to section 2 paragraph 1 of the Finnish Trademarks Act (7/1964), exclusive rights in a trademark may be acquired, even without registration, after the mark has become established. According to section 2 paragraph 3 of the Act, a trade symbol shall be considered established if it has become generally known in the appropriate business or consumer circles in Finland as a symbol specific to its proprietor's goods.

The court assessed the establishment and a possible infringement in a decision 376/15, issued on 17 June 2016.

The chief executive officer (CEO) of CPR stated that the company has sold the "Hangover" pizzas in its restaurants since 1996. The company has 12 franchised restaurants all over Finland. According to the CEO, the company is selling approximately 100 000 - 200 000 "Hangover" pizzas per year. [This is contradicting the numbers CPR used in the claim. In the claim the company mentioned that it has sold, between the years 2005 and 2014, altogether 200 000 "Hangover" pizzas. The other option is that there is a typo in the decision.]

A witness G has told the court that he/she has known one of the franchised restaurants and its "Hangover" pizzas since the end of 1990s.

CPR also referred to its physical menus from the year 1996 and 2002 and menus that have been available on its website in 2003, 2009 and 2014. The Hangover pizza has been mentioned in all those menus.

CPR referred also to four different magazine or newspaper articles (dated 2006, 2007 and 2008) in which the Hangover pizza is mentioned. 

The court stated that the company has proved how it has sold the pizza since 1996, how the pizza has been one of its most popular products and how the amount of franchised restaurants has grown during the years.

However, besides the sales figures, the company has not, according to the court, provided any evidence regarding the market share, the size of the investments made by the undertaking in promoting the mark or how reputed the mark is among the appropriate business or consumer circles in Finland.

The court continued and stated that one of the referred articles does not even mention the trademark HANGOVER or a pizza named Hangover. The other three articles mention the name but the company has not provided any information of the distribution figures. Furthermore, the content of the articles is quite insignificant. The court was not able to draw any conclusions regarding the reputation of the mark. 

Therefore, the trademark has not become established.

The court dismissed the infringement claim. 

The Market Court and an Interim Injunction (Alleged Utility Model Registration in Bad Faith)

Background

In November 2012, a company B (B) filed a utility model application for an invention 'Attachment arrangement'. The invention consisted of independent claim 1 and dependent claims 2-5. The Finnish Patent and Registration Office (PRH) registered the utility model (no. 9968) on 28 January 2013. 

Utility Model Registration no. 9968.

In 2014, a company A (A) lodged an invalidity claim against the registered utility model. The A provided prior art documents D1-D8. In 2015, the A added a prior art document D9. Basically the A wanted to prove that it has been selling an apparatus that is identical with the utility model and that these sales have occurred before the B filed the utility model application in 2012. 

In 2015, PRH confirmed in its decision that the documents D2-D4 and D9 cover the apparatus described in the claim 1 of the registered utility model no. 9968. However, PRH decided to reject the invalidation claim because the documents D2-D4 and D9 are based on a communication between two companies and an internal activity in those companies. This kind of communication or activity is not considered to be a material that has become available to the public. 

The documents D2-D4 provided proof of how the A has ordered a company C (C)  to manufacture and deliver a mold of an apparatus that is, allegedly, similar to the apparatus described in the claim 1 of the registered utility model. In the document D9, the A provided evidence of how it has started to manufacture the apparatus based on a mold ordered from the C and provided information on the sales of that apparatus. All this had occurred before the B filed the utility model application in 2012. 

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In 2016, the A brought an action for an interim injunction against the B in the Market Court. The A requested the court to order that a bailiff, or an expert on behalf of the bailiff, will carry out the following measures in the business premises of the B:

1. Investigate and copy or otherwise preserve:

a) the received and sent emails, including attachments, inter alia, (i) between the B and the C.

b) electronic documents and other files regarding the registered utility model no. 9968 or regarding other apparatus similar to the utility model.

2. Seize the physical papers and drawings regarding the registered utility model no. 9968 or regarding other apparatus similar to the utility model.

3. Seize all the prototypes, if the B has such, that the C has manufactured for the A.

Furthermore, the A requested the court to order the injunction without giving the B opportunity to be heard.

The Market Court issued its decision 325/16 on 3 June 2016.

The Market Court

The court first clarified the legal basis of the interim injunction application.

According to section 1 paragraph 2 of the Act on Securing Evidence in Civil Matters concerning Industrial Rights and Copyrights (344/2000), the Act is applied to a situation in which, inter alia, an entrepreneur has unjustifiably used or revealed a business secret, a technical model or technical instructions.

According to section 2 of the Act, the court can give a seizure order concerning any material that can have a significance in the case in question. The opposing party shall not suffer undue inconvenience in comparison with the benefit to be secured (comparison of interest / unreasonable inconvenience). According to section 3 of the Act, the rightholder needs to demonstrate that it is probable that he or she has a right that is enforceable against the opposing party, and the right is being infringed or that such infringement is imminent (claim requirement). Furthermore, there is a danger that the opposing party, or the one who has the material, conceals, destroys or hands over the evidence or in some other manner endangers the preservation of the evidence (danger requirement).

According to Government Bill 119/1999 of the Act, the applicant has to specify the object of the injunction. One has to know what to look for during the enforcement of the injunction. Furthermore, the specification is needed so that the court can assess whether the object has a significance as an evidence. The applicant has to specify the object of the injunction so precisely that the bailiff can carry out the enforcement without further consideration.

According to section 4 of the Act, the court can, on request, order the interim injunction without giving the defendant opportunity to be heard, if the purpose of the injunction is otherwise endangered.

According to section 5 paragraph 1 of the Act, a bailiff can use, if necessary, an unchallengeable expert. The applicant of the injunction, or his/her representative, can act as an expert if it is likely that he/she will not unjustifiably obtain any other business or trade secrets. 

1. Claim requirement

The A provided evidence that the figure eight of the registered utility model no. 9968 is identical with the drawings that the A sent to the C in 2010. The court stated that the A has an enforceable right against the B and the claim requirement is therefore fulfilled. The court stated also that at least part of the material, targeted by the injunction, has a significance in the case.

The A argued that the B has received material from the C and used it in the utility model application. Therefore, the email correspondence between the B and the C may have a significance as an evidence. The court agreed and stated that the relevant time period is between 2010 and 28 November 2012.

Otherwise the court rejected the requests no. 1-3 because it could not evaluate whether the material targeted in those requests would have a significance regarding the unjustifiable use or reveal of a technical model, i.e. the requests were not specific enough. 

Utility Model Registration no. 9968, Fig. 8.

2. Danger requirement

The court referred to earlier Supreme Court rulings 1994:132 and 1994:133 where the Supreme Court has ruled that the danger requirement is fulfilled if the danger is not very improbable based on the circumstances in the case. 

According to the A, it is likely that the B has some of the targeted material described in the interim injunction application. Taking into account the alleged bad faith behavior described above, there is a danger that the B conceals, destroys or hands over the evidence or in some other manner endangers the preservation of the evidence before the main proceedings. The court agreed and stated that the danger requirement is sufficiently fulfilled.

3. Comparison of interest / unreasonable inconvenience

The court considered that, as mentioned above, it is justifiable to order the interim injunction only regarding the request 1 (a)(i), i.e. the email correspondence, including attachments, between the B and the C between 2010 and 28 November 2012. Furthermore, the material is ordered to be left in the bailiff's possession. Since the injunction is ordered in a restrictive form like this, the opposing party B is not going to suffer undue inconvenience in comparison with the benefit to be secured. The comparison of interest / unreasonable inconvenience requirement is thus fulfilled.

The court also considered that there is a reason to order the interim injunction without giving the defendant opportunity to be heard.

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Therefore, the Market Court ordered a bailiff to carry out the following measure in the business premises of the B:

- Investigate and copy or otherwise preserve the received and sent emails, including attachments, between the B and the C between 2010 and 28 November 2012.

The bailiff can use, if it is necessary, an unchallengeable expert who is obliged to follow the rules of confidentiality and prohibition of exploitation.

Enforcement and security

A prerequisite for the entry into force of the interim injunction is that the applicant applies for enforcement of a precautionary measure as provided in chapter 8 of the Enforcement Code (705/2007).

According to chapter 8 section 2 paragraph 1 of the Enforcement Code, enforcement of a precautionary measure requires that the applicant lodges with the bailiff security for loss that the respondent may incur as a result of the precautionary measure.

The A has to apply the enforcement not later than 13 June 2016. Furthermore, the A has to deliver a document covering the description and results of the enforcement not later than 20 June 2016.