Present outlook for Spain with regard to IP litigations in a recurring pandemic scenario
The passing on Saturday of Act 3/2020, of 18 September, on procedural and organisational measures to address the COVID-19 crisis within the scope of the Justice Administration, invites us to look back, while also looking to the future, to recall the effects of COVID-19 within the context of industrial and intellectual property litigations.
1. Procedural scheduling and deadlines suspended for three months
Readers of our previous Statements will recall that, as a result of the state of alarm declared in Spain to contain the spread of coronavirus, legal proceedings (except for urgent interim relief measures) were suspended from 16 March to 4 June (82 days without trials, hearings or deadlines).
2. The gradual resumption of activities since 4 June 2020
After the state of alarm was lifted on 4 June, the mercantile courts have been doing their best to return to normal. Some of the trials that were suspended have already been held in July and September. Other hearings have been rescheduled for the last quarter of the year, with a few of them, the most complex, still pending being rescheduled. Deadlines were resumed, together with the handling of legal proceedings. However, it is too early for excessive optimism.
3. The risk of a slowdown up to 31 December 2020
The devastating economic impact of coronavirus has led the Act to maintain its “invitation” for the courts to grant preferential treatment to legal proceedings linked to the pandemic until 31 December 2020. Industrial and intellectual property litigations, with the exception of interim relief measures, do not benefit from this preferential treatment. To be realistic, a slowdown is foreseeable in the processing of litigations during the next few months. In fact, our firm has already seen hearings scheduled for 2021 for ongoing litigations.
4. An uncertain prospect up to June 2021
Curiously, the new Act passed in Spain dares to set a time frame for the pandemic we are enduring. Several of the measures it proposes to alleviate the impact of COVID-19 on the Justice Administration will be in effect until 20 June 2021. It is reasonable to assume that the legislator accepts the situation will be uncertain up until then, no matter how much the courts are reinforced.
5. A commitment to hold online hearings
Under the circumstances and to counter this somewhat pessimistic outlook, it should be added that the Act reiterates its commitment to hold online court hearings as an instrument to reduce delays should face-to-face hearings become unfeasible due to new outbreaks. Although a forthcoming legal regulation of these hearings has been announced, the courts are already putting these measures into practice, with some courts having better access to resources than others. Our firm’s experience is positive in this regard, already having attended one hearing and having four more scheduled before the end of the year. Furthermore, ELZABURU has contributed towards the drafting of the FIDE Protocol for online hearings which may help to overcome the fears with regard to this new resource.
6. ELZABURU SLP accompanying its clients in their recovery
From the first day of the lockdown, ELZABURU’s lawyers and its staff as a whole have continued to work remotely from home in a normal fashion and without limitations. Many of the services provided by the Legal Department (customs measures, on-line infringements, appeals before the CJEU, legal and contractual advice) have not been affected. Also, since the state of alarm was lifted, the lawyers at ELZABURU have kept in close contact with their clients to learn about the situation they find themselves in and to develop strategies tailored to their needs. Our supportive approach to the legal profession allows us to keep the flame of hope of a better future alive for everyone.
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