From February 27 to March 2 of 2017 Barcelona will host the Mobile World Congress (“MWC”). It is well known that the MWC is the main congress at the worldwide level in the mobile telephony sector (as well as regarding its associated disciplines, such as information technology, the videogames industry or, among many others, telecommunication in general). According to the official figures, MWC’s 2016 edition gathered more than 101,000 attendees from more than 204 different countries. It was an event covered by more than 3,600 journalists from the national and international media. Ultimately, the MWC is an indispensable event for all of those who are dedicated to the new technologies sector.
Hence, the MWC is a showcase with a global scope. For this reason, during the MWC the main companies in the mobile phone industry exhibit their latest products and also take advantage of the event in order to give an insight into some of their current projects under development. This outpouring of creativity and innovation is, simultaneously, conducive to a potential offences in a multitude of fields such as intellectual property rights, trademarks, patents, industrial designs, free competition law, unfair competition acts and, among other aspects, unfair advertising. Thus, it may be that certain companies decide to resort to precautionary proceedings and call for the adoption of inaudita parte precautionary measures prior to filing a claim with the intention of impeding or hampering the presentation of a new product at a global scale.
This set of legal proceedings that may take place during the MWC are settled in the Commercial Courts of Barcelona. These are the Courts with territorial jurisdiction and are competent for the resolution of such disputes. In order to guarantee a fast, balanced and effective system of precautionary protection, on 25 November 2016 (for the third consecutive year) the Board of Judges of the Commercial Courts of Barcelona adopted an on-call and fast action protocol during the MWC (strictly speaking, during February and until the end of the MWC).
In particular, the following was agreed:
a) To process, with priority and on a preferential basis (with or without the hearing of the other party), the urgent precautionary measures aimed to protect technological innovations and industrial designs which are expected to be presented in the MWC; as well as trademark and copyright infringements, antitrust, unfair competition and illegal advertising actions, in connection with products and subjects that are exhibited in the MWC.
b) The commitment by the judges to hand down a decision:
(i) within 2 days of the presentation before the Courts regarding the precautionary measures without the hearing of the other party; and
(ii) within 10 days of the presentation before the Courts regarding the precautionary measures in which a hearing has been indicated and provided that a protective letter has been sent.
c) To admit the anticipated presentation of protective letters before the Commercial Courts of Barcelona from those who have the well-founded fear that during the MWC their products or services will be subject to a request for precautionary measures in the context of industrial or intellectual property. The aim of these protective letters is to avoid, as far as possible, the adoption of precautionary measures without a prior hearing of the affected party.
d) In order to assess if the urgency requirements that would permit the Judges to adopt precautionary measures without the hearing of the defendant are met, the previous conduct of the defendant will be taken into special consideration. In particular, there will be an evaluation of the moment when the defendant could have had a reasonable knowledge of the subject of the dispute, in order to determine whether the defendant could (or could not) have reasonably requested the interim protection. In other words, it will be analyzed in particular detail whether the matter is urgent, or if it could have been initiated in advance provided the party requesting the precautionary measure has acted with the minimum of diligence.
At Uría Menéndez we have extensive experience in the fields affecting the protocol adopted by the Board of Judges of the Commercial Courts of Barcelona. Furthermore, we have already advised several clients on pre-litigation issues and technology protection affairs in previous editions of the MWC. If you have any queries or you require legal advice in relation with precautionary proceedings in Spain, or with protective letters or the protection of intellectual property rights, please do not hesitate to contact us at your convenience. We will be pleased to assist you.
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