Tag Archives: Precautionary measures

Assessment of MWC Barcelona 2019

The Commercial Court of Barcelona and the European Union Trade Mark Courts of Alicante have published their report summarising the application of the duty service and fast-action protocol for the Mobile World Congress held last week in Barcelona (MWC 2019). The information provided in this report will be no surprise for those, such as ELZABURU, having experienced first-hand the procedural peripeteia at this Congress.

  1. The courts have handled and resolved 50 matters in total, representing a 42% increase when compared to those dealt with in 2018.
  1. 38 protective letters were submitted to avoid adopting preliminary injuctions inaudita altera parte, 36 of these in Barcelona with regard to patents and 2 in Alicante in relation to European Union trade marks and designs. They were all processed and resolved within 24 hours.
  1. In order to verify the presence of goods suspect of patent infringement during the trade fair, the court attended 5 petitions for verification of facts procedures, these being processed and granted within a period of 48 hours. 2 of these petitions were notified and carried out by means of seizing samples at the actual inauguration of the Congress.
  1. On the subject of preliminary injunctions inaudita altera parte, the court of Barcelona attended 5 petitions filed and granted within a period of 48 hours before the start of the Congress. The measures were performed while the Congress was underway, with onsite seizure of samples. Curiously, in one of the cases the interested party was able to file a brief of opposition within two days, with the court accepting the opposition and immediately lifting the measures.
  1. ELZABURU followed the MWC 2019 there and then, being involved in 6 legal proceedings, preparing the defence strategy for another 2 cases that took different courses, while attending the Congress onsite to face any incident that could have occurred.

In addition, the actions of the courts of Barcelona and Alicante were exemplary when assessed regarding the judicial response and the efficiency of the mechanisms established in the Protocol. All remaining is to think of MWC 2020!

Author: Enrique Armijo

Visit our website: http://www.elzaburu.es/en

 

The court hotline has been set up for MOBILE WORLD CONGRESS 2019 in Barcelona

The Mercantile Courts of Barcelona have now disclosed the Duty Service and Fast-Action Protocol adopted on 13 December for MOBILE WORLD CONGRESS 2019. This is the fifth year running the Courts of Barcelona provide coverage for this important international forum, enabling the adoption of preliminary injunctions and the handling of preventive briefs under the most urgent conditions. The Protocol brings several important developments with it this year.

For the first time, the Protocol is agreed jointly by the Mercantile Court of Barcelona and the European Union Trade Mark Court in Alicante. In this way, the Protocol will not only be effective regarding patent infringements, but also for cases of infringement of European Union Trade Marks and Designs. Any preliminary injunction adopted by the Court of Alicante within this context may be enforced by the Courts of Barcelona while the Congress is being held.

The Protocol will be in force throughout February, in particular during the days the event is held (25-28 February). The commitment of the courts is to process and decide on the petitions for urgent preliminary injunctions within a period of 2 days (without a hearing for the defendant) or of 10 days (with a previous hearing being held) in terms of whether a preventive brief was previously filed.

Furthermore, the Protocol also proposes a guideline is followed to evaluate the risk factor that justifies measures are taken without a hearing for the defendant. For such purpose, both the previous behaviour of the complainant and the reaction speed to any knowledge on an eventual infringement will be decisive. The Protocol places emphasis on the fact that “it will be important to have submitted a petition for urgent preliminary injunctions sufficiently in advance for this, in good faith, not to reasonably prevent a hearing for the defendant, whenever the owner of the allegedly infringed right knew about the possible infringement beforehand and was able to file his petition in good time”.

These provisions of the Protocol encourage companies participating in MWC to weigh out and put in place as soon as possible their defensive or preventive strategies to guarantee their position. It should be borne in mind that 35 actions were carried out by judges in Barcelona regarding MWC 2018, 7 of these consisting of preliminary injunctions without a hearing for the defendants that were aimed at removing products on exhibition in the stands.

Author: Enrique Armijo

Visit our website: http://www.elzaburu.es/en

Taking stock of the Mobile World Congress in Barcelona: risks and opportunities for exhibitors as a result of patent conflicts

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

Visit our website: http://www.elzaburu.es/en

 

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