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According to the press, the Provincial Court of Appeal of Barcelona recently confirmed the judgment by the Commercial Court of Barcelona of July 25, 2016 (the “judgment”), which ordered the main internet operators to prevent users from accessing the website www.exvagos.com (the “EXVAGOS WEBSITE”) that was used for massive infringement of intellectual property rights.

For years, the EXVAGOS WEBSITE has been a public database of links in which users can obtain copies of phonograms without the consent of their owners, thus infringing the owners’ rights as acknowledged in article 115 of the Intellectual Property Act (“LPI”).

The controversy arose in July 2012 when the Association for Intellectual Property Rights Management (“AGEDI”) started a procedure, which was unsuccessful, with the Second Section of the Commission on Intellectual Property against the owner of the EXVAGOS WEBSITE. The procedure was discontinued given the voluntary deactivation of the mentioned website. However, the website was re-activated shortly after the procedure was suspended.

Based on the above, in 2015, the AGEDI decided to take legal action against the main entities in the telecommunications sector and internet operators based on article 138 LPI. Under this article, cessation measures can be taken against intermediaries whose services third parties use to infringe intellectual property rights although the intermediaries’ acts themselves do not constitute an infringement. The plaintiff requested that the defendants be ordered to adopt the measures necessary to effectively prevent access to the EXVAGOS WEBSITE from Spain.

As we mentioned, the Commercial Court of Barcelona upheld the claim, which later the defendants appealed, objecting to being summoned without the claim having been made against the offender. The defendants considered that there should have first been a declaration of infringement against the offender, i.e., against the owner of the EXVAGOS WEBSITE.

We will have to wait for the Provincial Court of Appeal of Barcelona’s judgment to be published to analyze the arguments it used to confirm the first instance court’s ruling.

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claudia.morgado@cuatrecasas.com

Asociada

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cristina.clos@cuatrecasas.com