BACKGROUND TO THE DISPUTE

On July 29th 2022, VISUAL ENTIDAD DE GESTIÓN DE ARTISTAS PLÁSTICOS, filed several actions, requesting that it be declared that the defendant, Grupo Mango, was infringing the economic and moral rights that Mr. Agustín, Mr. Alejo and Mr. Alfredo hold over five works, that were being used by the defendant without their consent or authorization, and that it be ordered to cease such use, with the corresponding compensation, and to publish the judgment. On the claim, the plaintiff requested inaudita parte an injunctive relief for the ceasing on the use of the aforementioned works, with the consequent withdrawal of all the elements in which they are reproduced, offering a 1,000 euros guarantee.

This measure was denied on August 8th, without hearing of the defendant. Subsequently, at the hearing, the plaintiff ratified her request, and the defendant orally opposed to it. Once the evidence had been heard, conclusions had been drawn and the pertinent transfers had been made, the request for the pending injunctive relief remained to be resolved.

DECISION

First, the concurrence of periculum in mora was examined. As a conclusion, it was considered that this could be appreciated, but in a partial and relative way.

Partial, because the defendant, as prudent act during the course of the legal proceedings, withdrew the physical supports of the works, as well as their social networks and metaverse reproductions, so that periculum is reduced to some NFT’s uploaded to the Opensea platform, in which certain works, whose rights were held by the plaintiffs, were incorporated and transformed, but without allowing their commercialization or exchange.

Relative, because it is known that the platform agreed, at the plaintiffs’ request, to remove the aforementioned NFT’s from its web page. This last fact, as deemed proven, made from the risk that the plaintiff or a third party could dispose of said NFT’s minimal or non-existent event, since they were not uploaded to any blockchain, and therefore were not transferred to any of the two wallets held by the defendant. However, there is no certainty as to how the platform is guarding the NFT’s, so it cannot be categorically stated that they are protected and that no one can access them. These doubts increase considering the several attacks suffered by Opensea for the theft of NFTs. Therefore, there is a certain risk of inefficiency on the measure.

Secondly, it is not considered necessary to carry out an exhaustive examination on the concurrence of fumus boni iuris. This is due to the complexity of the issues at stake in this case, which makes it difficult to carry out a provisional and circumstantial judgment, without prejudging the merits of the case. However, it is considered that there is a sufficient factual and legal basis for such requirement.

In conclusion, the injunctive relief is partially granted, only referring to the NFT’s and directed to the Opensea platform, not to the defendant, since the latter does not have access to them. As a consequence, the aforementioned platform is required transfer the NFT’s to this Court, within 2 days, for their custody by the Lawyer of the Administration of Justice, on the wallet provided by the plaintiff for this purpose.

[Barcelona Commercial Court No. 09, ORDER No. 468/2022, 21.10.2022]