Eric Ramage discusses the special measure adopted by the Commercial Court of Barcelona and the European Union Trade Mark Court of Alicante to help Intellectual Property rights owners counter possible infringements during the Mobile World Congress to be held in Barcelona from February 25th to 29th 2019.
The Commercial Court of Barcelona and The European Union Trade Mark Court of Alicante have put in place special measures to help rights owners counter possible infringements during the Mobile World Congress (MWC) to be held in Barcelona from 25th to 28th February 2019. Global developments in wireless and mobile communications will be showcased at the MWC along with new mobile applications, other state-of-the-art software, new designs for mobile devices and this is where leading companies in computing, electronics and telecommunications show off their wares. The likelihood of commercial conflict is high – and possible piracy cannot be ignored.
Two Spanish courts (The Commercial Court of Barcelona and the EU Trade Mark Court of Alicante) have said that during this period they will provide “Priority and preferential processing” of emergency preliminary injunctions relating to intellectual property rights covering the products displayed at MWC. Disputes may include infringement of technological patents and industrial designs, infringement of trademarks and copyrights, and unfair competition and unlawful advertising in relation to products and materials that are on display at the MWC.
Owners of such rights may apply to the relevant Court to seek a preliminary injunction to prevent ongoing infringement. The Courts aim to have applications for “ex parte” preliminary injunctions (that is where the application is without hearing the defendant) resolved within 2 days, or to have preliminary injunctions with a hearing at which the defendant is represented resolved, within 10 days. In assessing the need to grant an ex parte injunction, the Court will assess the urgency of the matter. The prior conduct of the claimant and the speed with which they have reacted to the knowledge of any infringement shall be a determining factor. In this regard, the Court will consider whether the application was made in good faith or could have been submitted earlier at a time when the defendant could have been represented at a hearing.
On the other hand, those who may have a reasonable fear of being subject to an application for an ex parte preliminary injunction by a competitor before or during the MWC may file a “protective letter” (which is an advance response to a foreseeable application for ex parte preliminary injunctions). The aim is to have admission of such “protective letters” resolved within 24 hours of filing.
The admission and immediate resolution of the protective letters is to avoid, so far as possible, the adoption of the ex parte preliminary injunctions, and, firstly, to allow the defendant to put forward possible arguments and, secondly, to demonstrate their willingness to appear at the Court immediately to rule on any request for ex parte preliminary injunctions.
Eric Ramage, who is of Counsel in the IP department, is a Fellow of the Chartered Institute of Trade Mark Attorneys, London, and a professional representative before the EU Intellectual Property Office, which is located in Alicante, qualified to conduct litigation in the EU Trade Mark Court in London. He has been advising clients on filing and enforcement strategies throughout Europe, including Spain, for many years and has been a Member of the EU association for trade mark attorneys, ECTA, since it was founded and has been a Council Member since 2007. He has been a tutor in advanced trade mark practice at Nottingham Law School and elsewhere for many years.
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