The Court of Instance of Logroño has condemned Telefónica Soluciones de Informática y Comunicaciones de España for infringing the copyright of the local firm Sistemas de Oficina de Rioja (Pancorbo Group) by improperly using its educational software in a public contract.
In the ruling, issued by the Commercial Court of the Court of Instance of Logroño and to which EL PAÍS/Cinco Días has had access, the judge fully upholds the claim presented by Sistemas de Oficina de Rioja and its general director, Jose Luis Pancorbo. The ruling declares that the multinational violated the intellectual property rights of the Riojan company on Virtuali, a technological solution for desktop virtualization designed for the school environment and implemented in public centers within the Neotec competition of the Government of La Rioja.
The court considered it proven that Telefónica went to Grupo Pancorbo as an essential collaborator to participate in the project tender. The judicial text states that the technical documentation delivered by the Rioja firm was included “almost literally and in its entirety” in lot V of Telefónica's offer, a section without which the operator would not have been able to comply with the specifications required by the regional administration.
The resolution specifies that the transfer of the technical material was conditional on Telefónica subcontracting to Grupo Pancorbo if it were awarded. When Telefónica failed to comply with that commitment and subsequently requested the Government of La Rioja to exclude the tool to apply it on its own without the creative company, the ruling concludes that consent to use was waived. The judge determined the existence of plagiarism and improper use of protected work under article 139 of the Intellectual Property Law. The sentence imposes on Telefónica the immediate cessation of the infringing activity, prohibits its future resumption and requires it to pay the procedural costs. The decision is not final and can be appealed. Telefónica sources confirmed to this newspaper that they will appeal the ruling.
"We consider that the contracting body right now has two options: That Telefónica, for its part, continue providing the service with the Pancorbo Group or, we are facing a case of negligent contractual breach on the part of Telefónica that could even open a way or initiate a file of negligent contractual resolution on the part of Telefónica," said lawyer Diego Hernaiz during a press conference held this Tuesday.
The origin of the conflict dates back to 2017, when the regional Executive put out to tender the virtualization of desktops for primary and secondary education teachers and students. Telefónica was awarded the tender using the solution developed by Grupo Pancorbo.
“This technological solution allowed teachers and students to work remotely during Covid in one of the few regions where its educational system had full capacity for remote work from anywhere in the world, thanks to this desktop virtualization solution,” the general director of the SME, José Luis Pancorbo, explained to journalists.
In 2021, within the framework of the NEOTEC aid tender, both companies agreed to participate jointly. The pact established that the SME would give up the use of its technology in exchange for being subcontracted if Telefónica was the winner of the award. According to the Riojan firm, Telefónica presented the offer accrediting Grupo Pancorbo's technology as its own without meeting the agreed subcontracting conditions, which led to the initiation of legal actions.
Another ruling from the Court
In parallel, the National Court has rejected an appeal by the operator against the National Markets and Competition Commission (CNMC) and has ratified the maximum rate of 0.07 cents per minute that it must apply to Vodafone for calls directed to emergency services.
In this ruling, the Contentious-Administrative Chamber of the National Court ratified the resolution issued by the CNMC in September 2022. The judicial decision rejects Telefónica's appeal and validates the wholesale limit of 0.07 euro cents per minute applicable between Telefónica and Vodafone for calls to the emergency and health emergency telephone numbers (061), Civil Guard (062), firefighters (080), National Police (091) and Municipal Police (092).
Termination rates represent the wholesale toll paid by Vodafone to Telefónica when a call originating on its network terminated on Telefónica's infrastructure. The National Court determined that Delegated Regulation (EU) 2021/654 of the European Commission, in force since July 1, 2021, is directly applicable to this type of traffic and requires modifying the General Interconnection Agreement between both companies.
The ruling rejects Telefónica's allegations of retroactivity and incompetence of the regulator, concluding that European regulations prevail over the previous billing model based on retail prices. The court specified that the application of the rule does not require an automatic refund of money, but authorizes Vodafone to claim economic readjustments corresponding to the period after July 2021. The National Court imposed the costs of the process on Telefónica with a limit of 3,000 euros. This ruling also allows an appeal to the Supreme Court.
