Clifford Chance

Fortunately for a lot of people, COVID-19 did not succeed in cancelling the MWC 2021, which was held from 28 June to 1 July 2021 and once again made Barcelona the worldwide epicentre of the mobile connectivity sector.

However, despite efforts to hold the MWC 2021 is as normal as possible despite the rather abnormal conditions of the global pandemic, including adapting its usual format to a hybrid one combining face-to-face and virtual elements, nobody can deny that COVID-19 has caused a drastic reduction in the number of participating companies, making the exhibition a much smaller event, but no less interesting, than we were used to enjoying.

This has understandably had an impact on the number of IPRrelated disputes arising amongst participating competitors during the MWC 2021, which has also been reduced, as confirmed by the report jointly elaborated by both the Commercial Court of Barcelona and the European Union Trade Mark Court of Alicante (the "Results Report for 2021") following the implementation of their fast-track protocol for dealing with MWC-related IP proceedings (the "Fast-Track Protocol").

The results report for 2021

In the last few years, when the MWC comes to an end, the panel of judges of both the Commercial Court of Barcelona and the European Union Trade Mark Court of Alicante have analysed the IPR-related disputes that have arisen during the event and have been handled in accordance with the procedural measures contained in their FastTrack Protocol.

For those readers not familiar with these procedural measures, they are aimed at protecting the IPRs of the MWC participating exhibitors and include, among other things, giving preferential and priority treatment to urgent applications for interim injunctions (with or without a hearing), pre-trial examination applications (diligencias preliminares) and "saisie-style" applications (diligencias de comprobación de hechos) related to technology patents and industrial designs for products exhibited at the MWC, acts of trademark and copyright infringement, and acts of unfair competition and unlawful advertising in relation to products and materials promoted or displayed at the event; a commitment to comply with specific deadlines for the resolution of applications for interim injunction measures and the admission of protective writs; giving preference to virtual hearings, and immediate enforcement by the Barcelona Commercial Courts of preliminary injunctions and/or urgent measures ordered by the European Union Trademark and Community Design Courts in Alicante within the scope of their competence, guaranteeing prompt and effective decisions in relation to these specific IPRs.

This year's analysis is reflected in the Results Report for 2021, which was published on 2 July 2021. For the first time since the MWC has been held in Barcelona, the Report shows a reduced level of judicial activity during the exhibition, a fact that should come as no surprise if we take into account the conditions under which it has been held, i.e. in the middle of a pandemic, on a much reduced scale - occupying only three pavilions at the Fira Gran Via de Barcelona, compared to eight in 2019, with far fewer participants, using a new hybrid format, etc.

In particular, this lower level of judicial activity, which occurred not only on the days of the MWC 2021 itself, but also throughout the whole month of June - during which the Fast-Track Protocol was activated, consisted of dealing with:

• 16 protective letters that were filed at the Commercial Court of Barcelona (15 in patent cases and 1 in a Spanish national trademark case); 
• 1 protective letter based on an European trademark that was filed before the European Union Trade Mark Court of Alicante; and 
• 1 application for an ex parte interim injunction referred to a European Union trademark that was filed at the European Union Trade Mark Court of Alicante.

No "saisie-style" applications (diligencias de comprobación de hechos), pre-trial examination applications (diligencias preliminares) or other urgent applications for interim injunctions connected with the MWC 2021 - apart from the ex parte one mentioned above - were filed.

As indicated in the Results Report, the number of IPR-related cases has dropped by 36% compared to the previous MWC held in 2019. Indeed, looking at the 2019 data, the number of protective letters filed and admitted have decreased by 47.2% (17 in 2021 compared to 36 in 2019), and there has been only one urgent request for inaudita parte interim injunction, compared to 7 in 2019.

If we analyse, even in general terms, data from the three previous MWCs, we can clearly notice that the number of disputes, which increased year by year from 2017 to 2019, has clearly fallen back in 2021. Thus, the total number of cases amounted to 21 in 2017 (of which 12 were protective letters and 7 were interim injunctions), to 35 in 2018 (24 protective letters and 8 interim injunctions) and to 50 in 2019 (36 protective letters and 7 interim injunctions), to significantly drop in 2021 to 18 cases (17 protective letters and 1 inaudita parte interim injunction).

This decrease in the number of cases has most probably made it easier for the Courts to meet the deadlines for handling and resolution set by the Fast-Track Protocol. In fact, as indicated in the Results Report for 2021, this year's compliance with such deadlines has been impeccable: 100% of the protective writs filed during the MWC 2021 were admitted within 24 hours of their submission and the one ex parte preliminary injunction applied for was resolved within 48 hours of its filing, as foreseen in the Fast-Track Protocol.

Looking forward to MWC 2022!

All in all, the outcome of the application of the Fast-Track Protocol during MWC 2021 is positive, which leads us to believe that, with the appropriate adjustments, it will be in force again for MWC 2022, where, if things don't go wrong, we will possibly see an increase in IPR-related disputes.

This is the forecast of both the Commercial Court of Barcelona and the European Union Trade Mark Court of Alicante, as they state in the Results Report for 2021 that, in their opinion, the volume of IPR-related proceedings, particularly protective letters, "saisie-style" applications and interim injunctions applications, will gradually recover at MWC 2022.

Hopefully, by the time MWC 2022 arrives, which is due to be held from 28 February to 3 March 2022, we will have moved beyond the current "new normal" and settled back into the much-desired historical normality, thus returning to a new MWC in its full splendour.

In any case, the answer as to what MWC 2022 will bring will only be revealed in time, so we have no choice but to wait!