An IP preliminary injunction in Spain can stop an infringer within weeks, and in urgent cases within days, long before a judgment on the merits. To obtain one you must show a prima facie case, a real risk that waiting for the judgment will make it ineffective, and you must lodge security to cover the defendant’s losses if you turn out to be wrong. This guide explains what Spanish courts require, how long it takes and how EU rules extend the picture, for foreign rights holders facing infringement in Spain.
Key takeaways
- Spanish courts apply three requirements: appearance of good right (fumus boni iuris), risk from procedural delay (periculum in mora) and security (caución).
- Delay kills urgency: no measures are granted to change a situation the applicant has tolerated for a long time without good reason.
- Measures can be ordered without hearing the defendant within five days if urgency or the risk of frustrating the measure is shown.
- Measures requested before the claim lapse if the claim is not filed within 20 days of their adoption.
- EU trade mark courts can grant provisional measures that apply across the EU.
What can a preliminary injunction order in an IP case?
Article 9 of the Enforcement Directive 2004/48/EC requires every Member State to offer interlocutory injunctions against an alleged infringer, and against intermediaries whose services are used to infringe, plus seizure of suspected goods and, for commercial-scale infringement, precautionary seizure of assets. Spain implements this through each IP statute:
- Patents: Article 128 of the Patents Act 24/2015 lists cessation or prohibition of infringing acts, retention and deposit of goods and the means to make them, security for future damages and registry entries. Measures against intermediaries must be objective, proportionate and non-discriminatory.
- Trademarks and other distinctive signs: the Trademarks Act 17/2001 applies the procedural rules of Title XII of the Patents Act (first additional provision).
- Trade secrets: Article 21 of Law 1/2019 adds the prohibition on using or disclosing the secret and on dealing in infringing goods.
The general framework is the Civil Procedure Act (LEC), Articles 721 onwards.
What must you prove to obtain an IP preliminary injunction in Spain?
Article 728 LEC sets the test:
- Risk from delay: you must show that, without the measures, situations could arise during the proceedings that would prevent or hinder the effectiveness of a favourable judgment. Measures are refused where they seek to change a factual situation the applicant has tolerated for a long time, unless it fully justifies why it did not apply earlier.
- Appearance of good right: you must provide data, arguments and documents supporting a provisional, prima facie view in your favour, without prejudging the merits.
- Security: unless the law provides otherwise, you must lodge sufficient security to cover any damage the measures may cause to the defendant.
For trade secrets, Article 22 of Law 1/2019 asks the court to weigh proportionality: the value of the secret, the measures taken to protect it, the defendant’s conduct, the interests of both parties and of third parties, and the public interest. Article 9(3) of the Directive allows courts to ask for reasonably available evidence that you own the right and that it is being infringed or about to be.
How long does it take?
| Route | Statutory timing | Rule |
|---|---|---|
| With a hearing | Summons to a hearing within 5 days of notice; hearing within the following 10 days; decision within 5 days of the hearing | Arts. 734-735 LEC |
| Without hearing the defendant | Order within 5 days if urgency or risk to the measure is shown; no appeal, but the defendant can oppose after notice | Art. 733.2 LEC |
| Before filing the claim | Allowed for urgency or need; the claim must follow within 20 days of adoption or the measures lapse | Art. 730.2 LEC; Art. 131 Patents Act |
| Protective letter by the potential defendant | Valid for 3 months; may lead to a hearing instead of an ex parte order | Art. 132 Patents Act |
| Appeal against an order granting measures | Appeal possible, without suspensive effect | Art. 735.2 LEC |
These are statutory periods; real timing depends on the court’s workload and on how complete your application is. Two procedural points matter for foreign holders. Since 3 April 2025, most civil claims require a prior attempt at negotiation, but applications for interim measures before the claim are expressly exempt (Organic Law 1/2025, Article 5.3); plan how the main claim will meet the requirement within the 20-day window. And if you obtain measures and then let them lapse, the court will order you to pay costs and the defendant’s damages (Article 730.2 LEC).
How much security will the court ask for?
There is no fixed scale. The court sets the amount according to the nature of the claim and its provisional assessment of your case (Article 728.3 LEC). In patent and trademark matters, Article 129 of the Patents Act adds that:
- the court fixes the security when granting the measures and gives you at least five business days to provide it, failing which you are deemed to have waived the measures;
- it may consist of a bank guarantee, but personal guarantees are not accepted;
- the defendant may be allowed to replace restrictive measures with its own counter-security, set as an amount per period where the activity is ongoing.
Security must be provided before any measure is enforced (Article 737 LEC). In trade secret cases the court must also consider potential harm to third parties, and the defendant cannot replace measures aimed at preventing disclosure with counter-security (Law 1/2019, Articles 23 and 25).
How the EU dimension changes the picture
For an EU trade mark, Article 131 of Regulation (EU) 2017/1001 lets an EU trade mark court whose jurisdiction rests on the domicile-based rules of Article 125(1) to (4) grant provisional measures applicable in any Member State, subject to recognition and enforcement rules. For patents with effect in Spain’s neighbours, the Unified Patent Court can order provisional measures under Article 62 of the UPC Agreement, weighing the harm to each party; Spain is not part of the UPC, so Spanish patents and Spanish validations stay with the Spanish courts.
What this means for your business
- Act fast and keep a dated record of when you learned of the infringement; unexplained delay is the most common reason urgency fails.
- Build the file before filing: title to the right, test purchases, notarised web captures, expert reports where technical.
- Decide whether to ask for measures without hearing, and justify it separately.
- Arrange a bank guarantee in advance so you can provide security within the court’s deadline.
- Choose the forum with the whole EU in mind: a Spanish court, an EU trade mark court or the UPC.
Our IP litigation and preliminary injunction team prepares these applications with Spanish litigation counsel and coordinates parallel steps in other countries.
Where rights holders get preliminary injunctions wrong
- Waiting months to negotiate first. Courts may read it as tolerance and refuse urgency.
- Weak proof of title. Assignments not recorded or licences without standing delay everything.
- Underestimating security. Without a guarantee ready, a granted measure can be lost by default.
- Forgetting the 20-day deadline after a pre-claim measure, with costs and damages as the price.
- Ignoring protective letters. A defendant who has filed one can turn an ex parte plan into a contested hearing.
Frequently asked questions
Can I get an IP injunction in Spain without the defendant being heard?
Yes, if you ask for it and show urgency or that hearing the defendant first could compromise the measure. The court then decides within five days by an order that must give separate reasons. No appeal lies against it, but the defendant is notified immediately after enforcement and can oppose it.
What happens if the injunction is later lifted?
If the measures are revoked or lapse, the defendant can claim compensation for the damage they caused, and the security you lodged answers for it. If you obtained measures before the claim and did not file it within 20 days, the court also orders you to pay the costs and declares you liable for the damage.
Do I need to negotiate before applying for interim measures?
Not for an application before the claim: Organic Law 1/2025 exempts it from the prior negotiation requirement. The main claim that must follow within 20 days is a different matter, so the strategy needs to cover both steps from the start, ideally with advice before any letter is sent.
Can IP Global Guard handle a preliminary injunction in Spain for a foreign company?
Yes. We assess urgency and evidence, prepare the application with Spanish litigation counsel and coordinate security and any parallel EU, UPC or Latin American steps, so a foreign rights holder deals with a single point of contact throughout the case.
How IP Global Guard helps you stop an infringer in Spain
For a foreign rights holder, a preliminary injunction is often what actually stops an infringer, and it depends on decisions made in the first days. IP Global Guard, the IP services line of META Channel Corporation Limited, coordinates IP enforcement across more than 25 jurisdictions in Europe, Latin America and Africa, with one strategy and one billing relationship.
Share what is being infringed, since when you know and where the products or services are offered. We will tell you whether urgency still holds, what evidence is missing and what security to expect. Send us the details of the infringement.
This article is general information, not legal advice, and reflects the law at its publication date.
Sources
- Directive 2004/48/EC on the enforcement of IP rights, Article 9 (29 April 2004)
- BOE, Civil Procedure Act 1/2000 (consolidated text)
- BOE, Patents Act 24/2015 (consolidated text)
- BOE, Trademarks Act 17/2001 (consolidated text)
- BOE, Law 1/2019 on trade secrets (20 February 2019)
- BOE, Organic Law 1/2025 on the efficiency of the public justice service (2 January 2025)
- Regulation (EU) 2017/1001 on the EU trade mark, Article 131 (14 June 2017)
- Agreement on a Unified Patent Court, Article 62 (19 February 2013)
