Durán-Corretjer SLP

For the fourth consecutive year, during the month of February and during the MOBILE WORLD CONGRESS dates, Barcelona’s Commercial Court judges have adopted an on-call and rapid action protocol that contemplates, among others, the following measures:

a) To give a preferential and priority treatment to urgent interim injuctions (with or without a hearing) in relation to patents and technological innovations as well as industrial designs whose presentation is expected to take place during the above mentioned Mobile World Congress; as well as trade mark and copyright infringements, protection of competition and unfair competition practices and illicit advertising, in relation to products and materials that are exposed or exhibited during the event.

b) To commit themselves to issue a decision on interim injunctions petitions without prior hearing of the defendant within two days from receipt of the request by the Court; and a maximum period of ten days from receipt of the application to issue a decision on interim injunctions petitions with prior hearing of the defendant, as long as a “protective letter” has been filed.

c) In the context of an eventual conflict with another company regarding industrial or intellectual property rights and where there is a reasonable fear of being subject to an interim injuction petition without prior hearing, to admit the submission of “protective letters” before Barcelona’s Commercial Courts to avoid, when possible, these interim injuctions being adopted without prior hearing of the defendant, which will, on the first place, allow the potential defendant to state their allegations and, secondly, their availability to immediately appear before the Court to resolve any query about the interim injunction petition without prior hearing.

According to the Patent Law, once the protective letter has been filed, the Court will inform the proprietor of the patent of the submission of that letter. Then, he will have a deadline to file the interim injunction petition, which will allow them to access to the content of the protective letter. In case that the owner of the patent does not file the interim injuction, the proceedings will be closed.
The filing of the preventive letter is not binding for the Court. This means that even if the proprietor of the patent files an interim injunction petition, the Court can still decide to grant if without a hearing.

d) In order to determine the required urgency regarding the adoption of such interim injuctions without prior hearing of the defendant, except when such hearing may compromise the proper functioning of the interim injuctions, the plaintiff’s prior behaviour and how quick their response to the knowledge of the infringement has been will be decisive. In this regard, it is relevant that the interim injunction petition has been filed sufficiently in advance so that, in good faith, it does not, prevent the hearing of the defendant, if the proprietor of the allegedly infringed right had had prior knowledge of the potential infringement and was able to file their petition with sufficient time in advance.