The Commercial Courts of Barcelona and the Courts of Alicante have published the so-called “IP Fast Action Protocol” to handle IP conflicts (i.e. disputes) that may arise during the Mobile World Congress (MWC), which is being held in Barcelona from 24 to 27 February 2020. The MWC is the largest mobile event in the world, where businesses in the industry exhibit their most recent innovations and new cutting-edge technology.
This is the sixth consecutive year in which this protocol has been adopted by the Courts of Barcelona and the second consecutive year in which the Courts of Alicante have engaged with the Protocol.
This IP Fast Action Protocol is used to protect the interests of IP rights owners (patents, designs, trade marks and copyright owners), as well as to protect the interests of the exhibitors (allegedly the infringers) during the MWC, when an urgent decision may be needed from the Courts. The Protocol allows interim injunctions to be granted to protect IP rights in a very short period of time.
On the one hand, the Protocol ensures that the Courts will grant preferential and priority treatment to urgent interim injunctions and assess requests for verification of facts, in relation to the alleged infringement of IP rights by those companies that launch or exhibit products during the MWC.
In this respect, the Courts undertake to resolve any applications for preliminary procedures, verification of facts procedures and/or ex parte interim injunctions within a term of two days (48 hours).
On the other hand, companies that are legitimately concerned about being subject to an ex parte interim injunction, have the possibility to file preventive writs. Preventive writs, also known as protective letters, are an anticipatory defence to avoid an application for an ex parte interim injunction. Such preventive writs must:
(a) State why the company should not be a party to an interim injunction application that, presumably, might be filed against it; and
(b) Show its availability to appear immediately before the Courts in case the judge considers it necessary to determine whether an ex parte interim injunction application is required.
In accordance with the Protocol, a preventive writ will be accepted or rejected, if possible, within 24 hours of being filed, in order to prevent a request being made for an ex parte interim injunction.
To evaluate the urgency of interim injunctions, the Protocol states that the previous behaviour of the claimant will be decisive and the promptness of its reaction to the alleged infringement. In this respect, it will be important that the request for an interim injunction is submitted with enough notice, if and when possible, allowing sufficient time for the defendant to be heard.
The Protocol also establishes that a Court will adopt, of its own accord or at the request of a party, specific measures necessary to preserve the confidentiality of information that may constitute a trade secret, as defined by the Directive on the Protection of Trade Secrets ((EU) 2016/943).
Further, the Commercial Court of Barcelona will immediately enforce any interim injunctions that the European Union Trade mark Court of Alicante issues. For this purpose, relevant communication and cooperation channels will be established between the two Courts.
The results of the Protocol of the MWC 2019 indicate that a total of 50 cases were filed and resolved, which implies an increase of 42.8% compared to 2018. There were 36 preventive writs (an increase of 50% compared to 2018), 5 requests for verification of facts (an increase of 66% compared to 2018), 7 requests for ex-parte interim measures and 1 request for interim measures with a hearing (both figures being the same as 2018).
The Commercial Courts expect that the number of cases dealt with in Barcelona will remain the same or increase and that the number of cases that the Courts of Alicante deal with will see a significant increase, considering this is the second year it has participated in the Protocol and now has more knowledge and experience.