Since 3 April 2025, Spain has made an attempt at negotiation mandatory before most civil litigation, IP claims included: under Article 5 of Organic Law 1/2025, a trade mark, patent, design, copyright or trade secret infringement claim is inadmissible unless the claimant first used an appropriate dispute resolution method, known in Spanish as MASC. This mandatory ADR step does not apply to pre-action interim measures, preliminary inquiries or enforcement of judgments. Foreign rights holders planning to sue in Spain must therefore build the negotiation, and the proof of it, into their timetable.
Key takeaways
- MASC (medios adecuados de solución de controversias) covers mediation, conciliation, a neutral expert opinion, a confidential binding offer and direct negotiation, including between lawyers.
- The requirement applies to all declarative proceedings under the Civil Procedure Act, with a closed list of exceptions that does not include IP.
- Pre-action interim measures and preliminary inquiries do not need MASC, so urgent relief is still possible.
- A request to negotiate interrupts the limitation period; the negotiation is deemed failed after 30 days without a reply.
- Refusing to take part without good reason can cost you the legal costs award, even if you win.
What is MASC and when did it become mandatory in Spain?
Organic Law 1/2025 of 2 January on the efficiency of the Public Justice Service was published in the Boletín Oficial del Estado (BOE) on 3 January 2025, and its Title II on MASC entered into force three months later, on 3 April 2025. Article 2 defines MASC as any negotiating activity in which the parties seek, in good faith, an out-of-court solution, by themselves or with a neutral third party.
Article 5(1) makes it a procedural requirement (requisito de procedibilidad): a civil claim is only admissible if the parties first tried one of these methods, and the subject of the negotiation must match the subject of the lawsuit. The law accepts several routes:
- Mediation under Law 5/2012.
- Conciliation, including private conciliation managed by a qualified professional (Article 15).
- The opinion of an independent expert.
- A confidential binding offer, which binds the offeror once expressly accepted and lapses if not accepted within one month (Article 17).
- Direct negotiation between the parties or between their lawyers, or a collaborative law process.
Does mandatory ADR before litigation apply to IP claims?
Yes, as a rule. Article 5(2) requires prior negotiation in all declarative proceedings in Book II and the special proceedings in Book IV of the Civil Procedure Act (LEC), except for a closed list that covers civil protection of fundamental rights, certain family, child protection and disability matters, summary possession and ruinous-building claims, and bill-of-exchange claims. None concerns IP. Article 3(2) excludes labour, criminal and insolvency matters altogether, which means a criminal complaint against counterfeiters needs no MASC.
| Step in an IP dispute | MASC needed? | Basis |
|---|---|---|
| Infringement claim (trade mark, patent, design, copyright, trade secret, unfair competition) | Yes | Art. 5(1) and (2) |
| Interim measures requested before the claim | No | Art. 5(3) |
| Preliminary inquiries (diligencias preliminares) | No | Art. 5(3) |
| Enforcement of a judgment | No | Art. 5(3) |
| Criminal complaint | No | Art. 3(2) |
| Fact-finding measures under the Patents Act (diligencias de comprobación) | Not expressly listed | Treat with caution and take advice |
The last row matters: these fact-finding measures, available for patents, trade marks and trade secrets, are not named in the Article 5(3) exceptions. Until the courts settle the point, our recommendation is to plan for both readings rather than assume an exemption.
How the timing works: limitation periods and deadlines
Under Article 7, a request to negotiate that properly defines the subject interrupts the limitation period (or suspends a time bar) from the date delivery to the other party was attempted. Counting resumes if no first meeting takes place or no written reply arrives within 30 calendar days. Article 10(4) sets when the negotiation ends without agreement:
| Situation | Negotiation ends |
|---|---|
| No meeting or written reply to the initial request | 30 calendar days after receipt |
| A concrete proposal gets no agreement or written reply | 30 days after receipt of the proposal |
| Talks started but no agreement | 3 months after the first meeting, unless both agree to continue |
| One party ends the talks in writing | On that communication |
This interacts with IP limitation rules. Trade mark infringement actions prescribe five years after they could be brought (Trade Marks Act, Article 45) and trade secret actions three years after the holder learns who the infringer is (Law 1/2019, Article 11). A well-drafted request protects those periods; a vague one may not.
The reform also amended Article 730(2) LEC. Interim measures granted before the claim still lapse if the claim is not filed within 20 days, and a new paragraph deals with measures adopted before or during a MASC process. How the two fit together in a particular case needs careful planning before you apply.
How to prove the attempt and what it costs to refuse
Article 10 requires the negotiation to be documented: a document signed by both parties or, failing that, proof that the other side received the invitation or proposal and could read it in full. If a neutral third party intervened, they issue a certificate. The claim must state the MASC used and attach that document (LEC Articles 399(3) and 264), or it will not be admitted (Article 403(2)).
Costs follow conduct. Under the amended Article 394 LEC, a party that refused without just cause to take part in a mandatory MASC will not be awarded costs and may be ordered to pay them even if the claim succeeds only in part.
What this means for your business
- Treat the cease-and-desist letter as a MASC request: define the dispute precisely, propose a meeting or a binding offer and keep proof of delivery.
- Decide first whether you need surprise. If evidence could disappear, request interim measures or evidence preservation before writing to the infringer.
- Diarise the 30-day and three-month marks and the limitation date for each right involved.
- Prepare the file for the court: the request, delivery receipts, any proposals and a record of meetings.
- Coordinate with other countries. A single negotiation can cover parallel infringements in Latin America or Africa if it is planned that way.
For a dispute that may end up in a Spanish court, our IP litigation and dispute resolution team in Spain can draft the MASC request so it also works as the opening move of the case.
Where companies get this wrong
- Warning the infringer too early. A negotiation letter sent before securing evidence or interim measures can prompt the other side to hide stock or move a domain.
- Vague requests. If the subject of the negotiation does not match the later claim, the requirement may not be met.
- Losing track of time. Assuming the clock stops indefinitely while talks drag on can let a limitation period expire.
- Refusing to engage. Ignoring the other side’s invitation can cost you the costs award.
Frequently asked questions
Do I need to negotiate before seeking an IP injunction in Spain?
Not for interim measures requested before the claim: Article 5(3) of Organic Law 1/2025 exempts them, together with preliminary inquiries and enforcement proceedings. The main infringement claim, however, does require a prior MASC attempt, and pre-action measures lapse if the claim is not filed within 20 days, so both steps must be planned together.
Does a cease-and-desist letter count as a MASC?
It can, if it works as a genuine invitation to negotiate: it should define the dispute clearly, propose a way to resolve it and be delivered in a way you can prove. A letter that only demands compliance, without any offer to negotiate, is a weaker basis for meeting the requirement.
Does MASC apply if the infringer is outside Spain?
The law covers cross-border disputes, and the requirement attaches to the claim filed in Spain. If the defendant’s address or contact channel is unknown, the claimant can file a sworn statement explaining why negotiation was impossible (LEC Article 264). Where the infringer is abroad, our recommendation is to send the request through a channel you can prove.
Can IP Global Guard handle the MASC step and the lawsuit?
Yes. We prepare the negotiation strategy and documents, manage the exchange with the other side and, if there is no agreement, coordinate the claim before the Spanish courts, directly where our professionals are qualified and otherwise through qualified local counsel, with one point of contact.
How IP Global Guard can help you resolve the dispute
Mandatory negotiation can be an opportunity: many IP disputes settle once the infringer sees a well-documented claim. IP Global Guard, the IP services line of META Channel Corporation Limited, runs negotiation, enforcement and litigation as one strategy, with one billing relationship, across more than 25 jurisdictions; see our coverage in Europe, Latin America and Africa.
Share the infringement, the rights involved and any deadlines you are facing. We will tell you whether to seek urgent measures first and how to structure the MASC so it protects your claim. Contact our IP dispute team.
This article is general information, not legal advice, and does not replace an assessment of your specific case.
