The city of Barcelona will host again from 26 February to 1 March 2018 the Mobile World Congress (MWC), the biggest gathering worldwide of the mobile communications industry.
This year, as has been the case since 2015, the Barcelona Patent Courts, being aware of the greater litigiousness that an event of this nature can bring out, once again adopted the so-called “fast-action” protocol to deal with the urgent interim relief applications filed during and on the occasion of the MWC for the infringement of the participating companies’ IP rights.
Indeed, this global exhibition provides for an environment where the cutting-edge technological advances and new launches within the industry are presented, including new devices, applications, software or functionalities. This, in turn, can easily give rise to intellectual property related conflicts between participating companies, not only in the patent arena, but also involving other kind of rights including –without limitation– copyrights or industrial designs.
Thus this protocol is aimed to provide swift and urgent relief to right-holders (required by the temporary nature of the MWC itself) while safeguarding the proper defense rights of any potential infringers, including the right to be heard.
This protocol was applied for the first time in the MWC held in February 2015 and was later renewed for it to be likewise executed during the 2016 and 2017 congresses. In 2017, as reported by the Board of Judges of the Barcelona Courts, 12 protective briefs were filed in application of said protocol, by companies such as SAMSUNG, NOKIA, ERICSSON, WIKO, ZTE, ARCHOS, etc. Similarly, 7 ex parte preliminary injunctions applications were filed against 8 different companies, which were all processed in 24 hours (of which 4 were estimated and 3 rejected). One opposition to precautionary measures granted ex parte was admitted and substituted by a guarantee (cross-bond). In addition, in the context of these preliminary injunction proceedings, one “preliminary fact-finding diligence” was admitted and carried out during the Congress. In total, 21 cases were resolved within the framework of application of the protocol.
Thus, in view of the success achieved by this initiative, the Judges of the Barcelona Commercial Courts agreed on 13 December 2017 to apply the protocol, for the fourth consecutive year, on the occasion of the next edition of the MWC 2018.
As in previous years, by virtue if this protocol the Barcelona Commercial Judges commit to implement the measures below:
A. To grant preferential and priority status to requests for urgent interim measures (with or without a hearing) related to patents and industrial designs, the presentation of which is planned for said MWC; or related as well to trademark or copyright infringements, acts of unfair competition and misleading advertising with regard to products and materials exhibited there.
B. To resolve ex parte applications for interim measures within two days, and within a maximum period of 10 days in cases where a hearing shall be scheduled (inter partes), always provided that a protective letter has been submitted.
C. To admit on the same day of its filing the protective letters submitted by the companies which fear being subject of a potential ex parte request for interim relief related to intellectual property rights or copyrights, in order to avoid, as far as possible, the adoption of interim measures without a hearing, by allowing the defendant –by means of such protective letter- to present its arguments in written and to state its willingness to immediately appear in court to resolve any interim measure request without a hearing.
D. To assess the urgency legally required to grant ex parte interim injunction in the light of the plaintiff’s previous behavior and promptness upon having learned of the possible infringement, which will be a decisive element. In this regard, the request for urgent interim measures shall have been timely filed so that in good faith it does not prevent the hearing of the defendant, when the right-holder had prior knowledge of the alleged infringement and could have submitted his request with enough time.
The protocol for action above will be effective throughout the whole month of February 2018 and during the specific days when the MWC will take place (26 February – 1 March).