Where does a crime against IP rights happen?. Well, when the illicit product is manufactured in the country it seems logical to understand that the crime happens where the factory is located (i.e. the crime will be the manufacture of counterfeit products a.e.). As long as the Spanish Criminal Procedure Law assigns the venue to the Courts of the place of infringement (art. 14.2) it should not be a problem.
However, what happens when the crime is just the importation of counterfeited products into Spain?. Does the crime happen at the place of introduction (i.e. the port / airport) or does it at the place of destination? (Where the products are effectively available to the criminal).
This dilemma has run for several years amongst IP practitioners, being a key matter for efficiency and speed of the procedure (you do not want to be involved in a dispute of venue between Spanish Courts) but the solution came in 2005 when the High Court settled the matter declaring that crimes happen “where all the legal requirements for the offense are met”. If it involves several places, the competent Court will be the first dealing with the proceedings.
However, this solution did not solve the discussion: IP owners practiced forum shopping at their place of convenience, sometimes hundreds of kilometers away where the offender was addressed thus maximizing the damage and “easing” the negotiation.
Consequently “the bucket kept being passed” between the lower courts, requesting a clearer position from the High Court.
The most recent decision in this regard is dated 3rd April 2013. The case goes as follows: an Italian company is warned of the apprehension of some possibly counterfeited products at Malaga’s airport with destination Almeria. The complaint is filed before Madrid’s Courts but the pilgrimage continues to Malaga and Almeria. As you surely guessed nobody wanted the case.
The High Court settles the discussion assigning the venue to Malaga’s Courts since it is at the city’s airport where the counterfeited products were seized by customs authorities This simply solution should be taken into account when filing the complaint by the IP rights’ owner as to avoid undesirable delays of the matter (in the case at issue, the discussion about the venue took almost one year and a half). Justice is always a matter of time and in Spain it does count too much.