As everybody knows, the Mobile World Congress (MWC) that every year takes place in Barcelona, is the world's largest gathering for the mobile industry and one of the most important events taking place in our country. It is also well known that, precisely because of that, the litigation activity increases the days before.
This is why for the third consecutive year the Sectorial Board of Commercial Courts of Barcelona has approved a protocol with the aim of prioritizing and speeding the prosecution of the preliminary injunction claims that may be filed in view of the MWC, avoiding –as far as possible- the granting of preliminary injunction inaudita parte and, at the same time, warrantying that the injunction that may be adopted is effective to protect the rights of IPR holders.
To that end, the Sectorial Board of Commercial Courts of Barcelona has committed to do the following during the month of February and, in particular, during the 27 and 28 of February and 1 and 2 of March (when the MWC will take place):
- To give a preferential treatment to preliminary injunction actions (with our without hearing the counterpart) that are referred to (i) the alleged infringement of Industrial Property rights, (ii) an unfair competition action, (iii) illicit advertising, in connection with the exhibition or launch of a product during the MWC;
- Provided a protective letter has been filed, to issue a decision on preliminary injunction actions inaudita parte within a two-day-term from its filing. For the rest of cases (ordinary preliminary injunction actions) to issue a decision within a ten-day-term from its filing.
- To admit the filing of protective letters in order to avoid, if possible, the adoption of preliminary injunction without hearing the counterpart. This is intended to grant the defendant his right to be heard and, at the same time, to confirm his availability to immediately appear in Court in case a preliminary injunction action inaudita parte is filed against him.
As already said, this will be the third consecutive year that the specialized commercial courts in Barcelona adopt this protocol after the results obtained from its implementation the two years before. These results show that the broader dissemination (and therefore, knowledge) of the protocol has led to a higher number of actions filed in connection with the MWC.
Indeed, according to the "Report about the results of the Protocol adopted by the Commercial Courts of Barcelona in connection with the MWC that took place in this city the 22-25 of February 2016", which was published the 1 of March 2016, the number of preliminary injunction actions filed in 2015 –when the protocol was adopted for the first time- was just 1 and no protective letters were filed. In 2016, however, 14 protective letters (12 of them in connection with patents) and 2 preliminary injunctions inaudita parte were filed. Following the preferential prosecution mentioned in the Protocol, the preliminary injunction actions were decided (and rejected) the day after its entry into the Judge. The decision about the protective letters was issued the very same day of its filing.
As it is indicated in the Report, the increase in the number of actions lodged in 2016 is due to the wider distribution of the Protocol after its implementation in 2015. This is why Commercial Courts of Barcelona expect that the number of protective letters and preliminary injunction claims will be higher this year 2017.
Now, those who are interested in seeking the urgent protection of their rights, will benefit from knowing beforehand the content of the two decisions issued by Commercial Court nº 1 of Barcelona in the two cases filed last year, where the preliminary injunction inaudita parte actions were rejected for not meeting the urgency requirement.
The Specialized Commercial Courts of Barcelona already indicated in the Protocol that, "in order to assess the urgency to adopt preliminary injunction inaudita parte, the previous behaviour of the plaintiff and the speed in his reaction after knowing about the infringement will play a critical role". In the case decided by the Commercial Court nº 1 last 22 of February 2016 (where the plaintiff had asked for the adoption of the preliminary injunction without hearing the counterpart), it was indicated that the reasons behind the filing of a preliminary injunction at a specific time cannot be subjective. On the contrary, the reasons for filing the preliminary injunction action right before the MWC must be objective and external. Likewise, the Court indicated that the filing of the preliminary injunction action before the action on the merits was not justified at all since the plaintiff knew about the alleged infringement long before the filing of the action ("there is not and ex novo infringement to be discovered for the first time at the MWC").
All in all, those who are interested in filing a preliminary injunction action inaudita parte in view of the MWC can be sure that their action will be prosecuted preferentially and, at the same time, carefully studied by the Courts, which will check that the actions duly comply with the legal requirements and are not filed using the MWC as the mere excuse to obtain an urgent protection that, in other circumstances, would not be granted.