The Barcelona Commercial Courts have published a report on the outcome of the Protocol that had been put in place during the MWC, which was held in Barcelona between 26 February and 1 March. ELZABURU has direct experience of the incidents concerned and can offer a first-hand account of the risks and opportunities that they represent for participating exhibitors. ELZABURU worked on 8 of the 35 cases that were handled by the Courts.
1. The real risk of an ex parte preliminary injunction order against exhibiting companies
The Barcelona Courts processed and granted 7 ex parte preliminary injunction petitions within the space of 48 hours. ELZABURU had to deal with one such petition which was filed, processed and granted in a matter of hours, on Wednesday, 20 February, just five days before the Congress began.
2. The risk of on-site facts verification proceedings during the Congress
In addition to preliminary injunctions, the Barcelona Courts also granted 3 requests for facts verification proceedings aimed at obtaining information from exhibiting companies during the Congress.
3. Court presence at the exhibitors’ stands
The risk posed by injunctions and facts verification proceedings is even greater, if indeed that is possible, when we learn that in 9 of the 10 cases mentioned, service of the court decision and execution of that decision by means of a request to remove the products on display happened once the Congress had begun through the –albeit discreet– presence of judges and police authorities at the exhibitors’ stands. ELZABURU managed to avoid that situation in the preliminary injunction proceedings that it handled for one of its clients.
4. The effectiveness of protective letters in mitigating those risks
Prior to the Congress, 22 protective letters were filed and granted leave to proceed. ELZABURU filed 7 such submissions. In one case in particular in which ELZABURU was involved, the prior action taken in view of a warning letter received by a company barely a week before the start of the Congress –and the filing of a protective letter– enabled the preliminary injunction order to be served early and a bond to be posted within 24 hours in order to mitigate the effectiveness of the injunction. This was the only case of the 7 mentioned in which the target of the preliminary injunction managed to prevent it from being executed.
5. Growing importance of court action at the MWC and forecast for 2019
In 2018, the Barcelona Courts resolved 40% more cases than in previous years of the MWC; the number of protective letters has doubled and the number of facts verification proceedings has tripled. 27 companies in total have been affected by these actions.
The forecast for next year suggests that the number of cases will continue to rise. The Barcelona Courts have demonstrated an extraordinary response capacity (acting within 24 and 48 hours), which is commendable. The legal tools (preliminary injunctions, protective letters) work.
It is up to companies to think about how they can use those tools in order to take advantage of opportunities and minimise risks at the Congress in the future. ELZABURU will continue to provide support to companies that wish to set strategies and attend the MWC with the sole aim of doing business … without setbacks or nasty shocks!Author: Enrique Armijo Chávarri
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