Two orders issued by the Patents Section of the Commercial Court of First Instance in Barcelona on 9 December 2025 and 8 May 2026 – the first issued ex parte and the second following a hearing on preliminary injunctions – the latter being final and binding –, provide a particularly interesting example of the application of interim measures in an unusual context: a claim for damages arising from the provisional enforcement of a judgment that was subsequently set aside by the higher courts.
The claim for which interim relief was sought arose from the legal liability that arises when a judgment provisionally enforced is subsequently overturned. In such cases, the law recognises the right of the party against whom provisional enforcement was carried out to be compensated for the losses suffered while the enforcement was effective.
On that basis, the court had to resolve a complex procedural issue: whether it was appropriate to secure, by way of interim relief, a claim for compensation whose existence had already been recognised by the court, even though its quantification remained the subject of dispute in subsequent proceedings.
The first order granted ex parte the preventive attachment of several European Union trade marks by means of a registration entry with the EUIPO. The decision attached particular importance to the fact that the right to compensation had previously been affirmed by final judgments and that the pending litigation centred exclusively on determining the amount of damages.
However, the truly relevant aspect of the case lies not so much in the existence of the claim as in the financial situation of the party liable for it.
The ruling describes a particularly complex business scenario. The court analysed financial documentation showing significant losses in previous financial years, net equity that had become negative, the need for corporate restructuring, dependence on intra-group financing decisions, and a financial trajectory that raised reasonable doubts as to the company’s future ability to meet a potential large-scale order for damages.
Of particular importance is the fact that the claim for damages amounted to an extraordinarily high sum in relation to the financial scale of the company concerned. In the court’s view, this factor increased the risk that, whilst the main proceedings were ongoing, the eventual satisfaction of the claim might be jeopardised.
From this perspective, the court considered that the so-called ‘periculum in mora’ was present, that is to say, the risk that the passage of time might render a future favourable ruling ineffective. On that basis, it ordered the preventive attachment of the trade marks, further holding that these were easily identifiable assets that could be secured through registration without directly interfering with the company’s ordinary commercial activity.
The second ruling analyses the opposition lodged against these preliminary injunctions and is particularly interesting because it highlights the difficulty of assessing dynamic business situations.
During the opposition hearing, it was established that the financial situation had formally improved. The most recent accounts showed profits and a significant recovery in net worth. However, the court carried out a more in-depth examination of the data and concluded that this improvement should be interpreted with caution.
In particular, the ruling highlights that a substantial portion of the positive results stemmed from intra-group transactions and extraordinary dividends, which made it necessary to distinguish between the immediate accounting improvement and the structural and recurring capacity to generate resources. Furthermore, the court took into account the financial situation of the business group as a whole, the existence of considerable debt and the imminence of several financial maturities.
Whilst expressly acknowledging that some of the most worrying circumstances identified in the initial phase no longer applied, the court concluded that the risk of the future judgment being ineffective still existed and justified maintaining the interim measure.
The second notable aspect of this ruling is the treatment of the alternative security.
The company concerned proposed replacing the attachment with a guarantee provided by its parent company. However, the court rejected this guarantee as insufficient, on the grounds that it presented various uncertainties: doubts regarding the parent company’s organic capacity to honour the commitment, the subsidiary nature of the obligation, the benefit of excussion, and the absence of the immediacy characteristic of a guarantee enforceable on first demand.
Finally, in its ruling of 8 May 2026, the court opted for a compromise solution. It upheld the attachment but permitted it to be replaced by a bank guarantee that met certain conditions of soundness and enforceability. Furthermore, it set the amount of that guarantee at a prudent figure, lower than the full amount of the claim sought, on the grounds that —without assessing the merits of the case— the final quantification of the damages remained an open and contentious issue.
Taken together, both orders provide an interesting example of how the courts can use preliminary injunctions, such as the attachment of intangible assets, to balance two legitimate interests: on the one hand, the need to preserve the effectiveness of a future order for damages; and, on the other, the desirability of limiting any restrictions that may be imposed on a company’s strategic assets. The ruling also stands out for the detailed economic analysis carried out and for the willingness to adapt the interim injunction to the actual evolution of the debtor’s financial situation, without losing sight of the essential aim of ensuring effective future judicial protection.