How to prepare a trial unfair competition?

unfair competition













Before trial for unfair competition is possible to apply for both preliminary measures as precautionary measures.

Preliminary proceedings

Article 36 of la Unfair Competition Law provides for the adoption of preliminary hearing when you require the assistance of the judge to check facts essential to prepare the Judgment. They shall be conducted as provided in Articles 129 a 132 of the Patent Act. A lack of regulation by previous rules, apply the Code of Civil Procedure Articles 256 a 263.

Through the preliminary hearing we can ensure both the subjects who performed acts of unfair competition and the facts constituting the offense. Is, they can even afford to avoid raising a claim if in view of the results of the preliminary hearing or not worth the chances of success are slim.

The requirements for a preliminary hearing are:

1.- Appearance: Present evidence of unfair competition.

2.- Justify legitimate interest requesting the proceedings.

3.- Reasoned the need of measures for the future judgment.

4.- Provide the delivery of bond point the court.

The request must be in writing before the case is brought before the court to be released on future judgment (would be the Commercial Court of the place where the defendant lives).

Precautionary Measures

Are those that attempt ensure that the process is effective and prevent the duration of the process do the useless. If a competitor is performing an act of unfair competition, can be requested as a precautionary measure the immediate cessation, avoiding damage could be irreparable sometimes even demand were successful at trial. These measures are set out in Articles 721 and following of the Code of Civil Procedure. Article 727 contains the special precautionary measures:

Article 727 Specific precautionary measures

As established in the previous article, may be agreed, inter, The following precautionary measures:

1.ª The garnishee, to ensure the execution of judgments of conviction upon delivery of amounts of money or fruit, income and miscellaneous things computable by applying metal prices ciertos.Fuera cases of the previous paragraph, also be from the lien if it appears as suitable and not replaceable by another of equal or greater efficacy and less onerous for the defendant.

2.ª Intervention or judicial administration of productive assets, when conviction is intended to deliver by way of business, beneficial owner or any other legitimate interest in maintaining behave or improve productivity or warranty as this is a major concern for the effectiveness of the sentence that may fall.

3.ª The deposit movable thing, when demand intended to deliver conviction and it is in possession of the defendant.

4.ª The formation of inventories of goods, under the conditions as the court.

5.ª The notation demand, when this property or rights subject to registration in public registers concerns.

6.ª Other registry entries, in cases where land registration is useful for the success of the implementation.

7.ª The injunction to temporarily cease an activity; the temporarily refrain from performing a behavior; or temporary prohibition to interrupt or cease performing a delivery taking place to come.

8.ª Intervention and deposit proceeds of an activity that is considered illegal and the prohibition of which is intended to or cessation in demand, and the deposit or deposit of amounts to be claimed as remuneration of intellectual property.

9.ª The temporary storage of copies of works or objects reputen produced in violation of the rules of intellectual property and industrial, and the deposit of the material used for their production.

10.ª The suspension of resolutions challenged, when the plaintiff or plaintiffs represent, at least, the 1 o el 5 by 100 share capital, according to the defendant company or any securities issued, at the time of the challenge, estuvieren admitted to trading on official secondary market.

11.ª Those other measures, for the protection of certain rights, laws expressly provide, or as may be necessary to ensure effective judicial protection that may be granted in the judgment by which falls on the trial.

The following requirements apply:

1.- Proportionality: the measure must not be capable of being replaced by another equally effective, but less burdensome for the defendant (art. 726.1.2º LEC).

2.- Looks good right: required to provide proof of completion of the act of unfair competition, to demonstrate that there is sufficient basis for the adoption of the precautionary measure (art. 728.2 LEC).

3.- Provision of Security Deposit: Given the possibility of prejudicing the defendant and then demand has not deemed, requires that the injunction requested by the secure payment of these hypothetical damage. The judge determines the amount of the bond and its presentation which may be by cash, endorsement or other. But applying precautionary measures, must provide the amount and mode of bail.

The competent court to decide on interim measures is the process knowing it to be or that it was competent to demand.

In summary, despite a trial can be resolved within usually higher than 6 in 8 months, However, is possible to order preliminary measures as precautionary measures to ensure effective legal protection through the process.

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