IP litigation and defense

If you detect that a third party is using your creation without authorization, the first step is to analyze the situation and gather evidence of the infringement. In many cases, the claim begins with a formal cease and desist letter. If this does not resolve the issue, it is possible to go to court to stop the infringement and claim damages.

It depends on the type of right and the specific circumstances of each case. Generally, registration is necessary for trademarks, patents and designs. In the case of copyright, protection exists from the moment of creation. However, having a registration or clear evidence of authorship and ownership always facilitates defense in court, as it allows proving who the owner of the right is and since when.

Courts can adopt different measures, such as ordering the immediate cessation of the infringement, removing products or content from the market, blocking certain uses on the internet, or ordering the infringer to pay compensation for damages. In some cases, urgent interim measures can also be requested to stop the infringement while the proceedings are resolved.

Not all conflicts go to trial. Many disputes are resolved through negotiations or out-of-court settlements, especially when the infringer agrees to cease use or financially compensate the rights holder. Analyzing the best strategy, whether negotiating or going to court, is an important part of legal advice.

The duration depends on the type of proceeding, the court handling the case, and the complexity of the matter. Some conflicts can be resolved relatively quickly, especially if interim measures are requested to stop the infringement, while complete proceedings may take longer. The important thing is to define a clear procedural strategy from the outset to protect the right as effectively as possible.

When infringement affects multiple jurisdictions, it is necessary to coordinate legal strategies in each territory. We analyze the viability of actions in each country, prioritizing those markets where the impact is greatest, and coordinate with international correspondents to ensure coherent and effective defense.

Costs vary depending on case complexity and procedural stage. A complete first instance proceeding can cost from €10,000 in lawyer and court agent fees, plus court fees (exempt for individuals and SMEs). Urgent injunctive relief has an additional cost. The Spanish costs regime allows the winner to recover expenses if the case is won.

Digital evidence requires guaranteeing the chain of custody and evidence integrity. We use certified web content capture tools, notarial certificates of internet facts, source code expert reports, and digital forensic analysis. Spanish courts accept this evidence if obtained respecting fundamental rights and with adequate procedural guarantees.

These are measures adopted by the judge without hearing the defendant first, when urgency justifies it. They apply when there is a risk that notifying the infringer would frustrate the measure's effectiveness (e.g., destruction of evidence or products). The applicant must provide a bond and demonstrate urgency. They are especially useful in industrial property matters and we have experience in their adoption by Spanish courts.

Yes. Compensation can be calculated in three ways: lost profits of the right holder, profits obtained by the infringer, or hypothetical royalty (what the infringer would have paid for a licence). In software patents, valuation is complex and usually requires technical and economic expertise. Courts may also award moral damages.

It is a proceeding that allows a company to obtain a court declaration that its product or technology does not infringe a third party's patent or IP right. It is useful when you receive infringement threats but believe your product does not infringe, or when you need legal certainty before launching a product to market.

Law 1/2019 on Trade Secrets allows civil actions against the unlawful acquisition, use, or disclosure of secrets. You must demonstrate that: the information had business value, was secret, and you adopted reasonable protection measures. Courts can order cessation of use, product destruction, and compensation. Having documented protection measures before litigation is essential.

Commercial Court Sections of the Trial Courts hear disputes on trademarks, patents, designs, copyright, and trade secrets. For EU trademarks and designs, the Commercial Section of the Trial Courts of Alicante has jurisdiction as EU Trademark Courts. Territorial jurisdiction depends on the defendant's domicile or the place of infringement.

Yes. Courts can order internet service providers (ISPs) to block access to websites infringing IP rights. Measures can also be requested from platforms like Amazon, eBay, or social networks to remove infringing content. Additionally, the Second Section of the Intellectual Property Commission can order content removal in certain cases.

The Unfair Competition Law complements IP protection by sanctioning conduct such as: confusing imitation (copying a product's appearance), free-riding on another's reputation, trade secret violations, and misleading advertising. It is useful when trademark or patent protection is insufficient or does not directly apply to the case.

Urgent ex parte measures can be resolved in days. Measures with a hearing for the defendant typically take 1-3 months. Once granted, measures are immediately enforceable. The applicant has 20 days to file the main claim if measures were requested before proceedings.

The first step is to analyse whether the accusation has merit: review the scope of the invoked right, verify its validity, and assess whether your product or service actually infringes. Defence options include: denying infringement, challenging the right's validity (nullity), claiming legitimate use or prior rights, and negotiating a licence or settlement. A quick and well-founded response is key.

In Spain, the costs regime allows the winner to recover lawyer and court agent fees from the loser, unless the judge finds legal doubt. Recoverable costs include professional fees, court fees, and expert costs. In IP litigation, this possibility discourages frivolous claims.

The technical expert is fundamental in litigation involving software, technology patents, or trade secrets. They provide: technical equivalence analysis between products, source code comparison, inventive novelty assessment, and economic damage valuation. Courts give significant weight to well-founded expert reports. We coordinate expert selection and work from the outset.

Yes. Arbitration is an effective alternative to court litigation for IP disputes, especially in international contexts. It offers: confidentiality (versus public hearings), procedural flexibility, specialised arbitrators, and internationally enforceable awards under the New York Convention. The WIPO Arbitration and Mediation Center is a specialised option for IP disputes.