Introduction

The next Mobile World Congress (MWC), a world-leading event in the mobile communications industry, will be held in Barcelona from 25 to 28 February 2019.

Foreseeing potential conflicts between the participating companies, the panel of judges of the Barcelona commercial courts has agreed – for the fifth consecutive year and for the first time in conjunction with the panel of judges of the commercial courts of Alicante (the EU trademark courts) – to adopt a specific protocol of guard service and fast action which contains effective measures to protect technology patents, industrial designs, trademarks and copyright and defend against unfair competition and unlawful advertising acts in relation to products and materials which are displayed at the MWC.

2019 protocol

The following protocol will be put in place from the beginning of February 2019 until the end of the event:

  • There will be priority and preferential processing of urgent interim injunctions (either ex parte or not) for the products and materials displayed at the event.
  • Ex parte interim injunction petitions must be resolved within two days and interim injunctions must be resolved within 10 days in the event of a hearing, as long as a protective letter has been filed.
  • The admission of a request for a protective letter must be resolved on the day of its presentation. A protective letter is an anticipatory defence to avoid the adoption of ex parte interim injunctions. Its admission and immediate resolution is made so as to allow the eventual defendants to:
    • put forward their arguments; and
    • show their willingness to appear before the court immediately where a request for an ex parte interim injunction is filed.
  • The filing of a protective letter does not bind the courts; thus, if a patentee submits an interim injunction petition, the court can grant it without a hearing.
  • In order to assess the urgency of ex parte interim injunctions, the claimant's prior conduct and the speed with which it reacted to the infringement will be determining factors. Where possible, the courts will assess whether an injunction has been filed in good faith and with sufficient notice so as not to impede hearing the defendant.
  • The Barcelona commercial courts will immediately enforce interim injunctions and urgent matters ordered by the commercial courts of Alicante (the EU trademark courts) within the scope of their specific competence over EU trademarks and Community designs.

Success of previous protocols

The Barcelona commercial courts have highlighted the results of the protocol applied during the MWC 2018. In particular, 35 cases were admitted, which was an increase of 40% compared with 2017. In addition, the following results were observed:

  • Twenty-two protective letters relating to patents were submitted. All of these were resolved before the event began. Two additional protective letters were filed and admitted before the commercial courts of Alicante (the EU trademark courts).
  • Three verification-of-facts procedures relating to patents were filed against four companies, all of which were processed and granted within 48 hours.
  • Seven ex parte interim injunction petitions were filed against eight companies, all of which were processed and granted within 48 hours:
    • In two such cases, the court granted the defendants the option of posting a bond in order to be released. This faculty was exercised in only one case. In the other case, the interim injunction was maintained throughout the event.
    • Another interim injunction was shelved following an agreement between the parties.
  • No oppositions to the interim injunctions adopted were filed.
  • One interim injunction resulted in a hearing, which was resolved and granted before the MWC began. The defendant posted a bond to be released from the interim injunction.

The commercial court judges have predicted that there will be an increase in the number of protective letters and ex parte interim injunctions filed during the MWC 2019.

For further information on this topic please contact Alejandro Angulo, Jesús Arribas or Ignacio Marqués at Grau & Angulo by telephone (+34 93 202 34 56) or email (a.angulo@ga-ip.com, j.arribas@ga-ip.com or i.marques@ga-ip.com). The Grau & Angulo website can be accessed at www.ga-ip.com.

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