A new edition of the Mobile World Congress (MWC), the world's largest and most important event in the mobile communications industry, will be held in Barcelona from 24 to 27 February 2020.
Foreseeing possible conflicts that may exist between the participating companies, the panel of judges of the Barcelona commercial courts – for the sixth consecutive year and for the second year in conjunction with the panel of judges of the Alicante commercial courts (the EU trademark courts) – have agreed to adopt a specific protocol of guard service and fast action which contains effective measures to protect technology patents, industrial designs, trademarks, copyrights, competition law, unfair competition and unlawful advertising acts in relation to products and materials which are on display at the MWC.
The agreed protocol, which will be applied during February 2020 and the days of the event, consists of:
- the priority and preferential processing of petitions for preliminary procedures and/or verification of facts procedures for the products and materials to be displayed at the event;
- the priority and preferential processing of urgent interim injunctions (either ex parte or not) for the products and materials to be displayed at the event;
- any petitions for preliminary procedures, verification of facts procedures and/or ex parte interim injunction in a two-day period; and
- an interim injunction in a 10-day period in the event of a hearing, as long as a protective letter has been filed;
- resolving the admission of a request for protective letters on the same day of their presentation:
- A protective letter is an anticipatory defence to avoid the adoption of ex parte interim injunctions. Its admission and immediate resolution is made to allow the defendants to put forward their arguments and willingness to appear at the court immediately, to be heard in case any request for ex parte interim injunctions has been filed.
- The filing of a protective letter does not bind the court, so if the patentee submits the interim injunction petition, the court can decide to grant it without a hearing;
- in order to assess the urgency of such ex parte interim injunctions, the prior conduct of the claimant and the speed with which they reacted to the knowledge of the infringement shall be determining factors. It will be assessed, whenever possible, that the injunction has been filed with such notice that in good faith it does not impede the hearing of the defendant;
- adopting the necessary measures to preserve the confidentiality of the information filed within a proceeding that may be considered a trade secret; and
- the Barcelona commercial courts will immediately execute the interim injunctions and/or urgent matters ruled by the EU Trademark Court of Alicante in the scope of its specific competence in EU trademarks and Community designs.
The Barcelona commercial courts and the EU trademark courts highlighted the results of applying the MWC 2019 protocol as follows:
- Thirty-eight protective letters were submitted and admitted: 36 of them before the Barcelona commercial courts relating to patents and two before the EU trademark court relating to trademarks.
- Five verification of facts procedures relating to patents were submitted before the Barcelona commercial courts; these were processed and resolved within 48 hours. Two of them were notified and executed during the event, two were withdrawn at the request of the plaintiff before the beginning of the MWC and the remaining one was dismissed.
- Five ex parte interim injunction petitions were filed against three companies relating to patents before the Barcelona commercial courts. They were processed and resolved within 48 hours, three of them were granted (before the event) and two of them were dismissed (one before and the other during the event).
- Regarding the granted interim injunctions, the courts granted the defendants the option of posting a bond in order to be released. In one of them, the defendant did not post it and the interim injunction was maintained throughout the event. Regarding the two granted interim injunctions, the defendant opposed them the second day of the event and they were lifted, returning the products seized, since it was not considered that the 'periculum in mora' requirement had been met.
- One ex parte interim injunction was filed before the Barcelona commercial courts relating to trademarks and trade names, which was dismissed due to lack of competence.
- One ex parte interim injunction was filed before the EU trademark courts relating to EU trademarks and trade names, which was dismissed the day of the hearing held on the first day of the congress.
- In total, 50 cases were admitted and resolved – an increase of 42.8% compared with 2018.
The commercial courts foresee that the number of cases filed will increase – in particular, regarding the filing of protective letters, the verification of facts procedures or interim injunction petitions. Further, an exponential growth of cases relating to EU trademarks and community designs from the EU trademark court is anticipated.
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