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SPAIN: An Introduction to Intellectual Property

Contributors:

Rubén Canales

Carolina Montero

Fernando Ortega

Salvador Díaz

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Introduction  

Spain is one of the largest economies in the European Union and the country within the euro area with the lowest increase in inflation (5.6%) in 2022, coupled with a remarkable growth rate (approximately 5%). The outlook for 2023 is positive, and no recession is forecast in the short-medium term.

Within this economic scenario, Intellectual Property plays an increasingly important role in improving development and competitiveness. Spanish companies give special consideration to IP rights as part of their commercial and industrial strategy for sectors that are booming, such as renewable energies, telecommunications, and biotechnology, to name few. Patents, trade secrets and utility models are becoming a regular feature of business projects in these fields. They are a key factor in adding value and protecting R&D investments.

Moreover, Spain stands out for the strength of its food, fashion and tourism industries. In these areas, the rights relating to the protection of trade marks, trade dress, designs and geographical indications are fundamental. For example, most of the iconic products of Spanish gastronomy (ie, wine, olive oil) are linked to geographical indications, which operate as a guarantee mark.

In the entertainment sector, the country's excellent telecommunications network (Spain is the third country in the world with the most fibre optics per capita, after Japan and South Korea) contributes to the high consumption and production of digital content in all areas. As a result, audiovisual and video game creation is growing rapidly, and copyright protection plays a vital role in this economic sector.

Legislative framework and new developments in 2023

Spanish Intellectual Property legislation is strongly influenced by European policy and international treaties. The presence of the EUIPO headquarters in Alicante has made IP popular with companies and users who are familiar with the registration of European trade marks and designs.

Spain has ratified the most relevant international treaties on trade marks, patents, designs and copyrights. The Spanish Patent and Trademark Office (SPTO) is an International Search Authority (ISA) under the PCT Treaty, and the first administration authorised to conduct international searches in Spanish. The SPTO has teams of qualified and experienced examiners and modern technology systems that allow all administrative steps to be processed electronically and digitally. In fact, electronic processing is mandatory for professionals and Industrial Property Agents. Applicants from non-European countries must be represented by a local Agent.

One of the most significant developments for 2023 relates to the new functions relating to trade marks assigned to the SPTO as of 14 January 2023. As a consequence of the transposition of EU Directive 2015/2436, the matters of revocation and invalidity of registered trade marks are no longer within the jurisdiction of the civil courts, so they must not be dealt with via judicial proceedings but, instead, via new administrative proceedings before the SPTO. This change is intended to expedite and simplify trade mark revocation and nullity cases, making them less complex and costly. The civil courts continue to have jurisdiction over these cases, but only when they are brought on counterclaims, ie, as part of a defence to an infringement claim. The new system is similar to the one already in place for European trade marks.

Spain is not a member of the Unitary Patent or the Unified Patent Court; therefore, their entry into force in 2023 will have no effect in Spain, although Spanish patent applicants will be able to benefit from them. For the time being, there is no official proposal by the Spanish government seeking to join the UP system, and this situation is not expected to change in 2023.

Enforcing IP rights in court - Judicial developments in 2023

The protection and defence of Intellectual Property rights in court is constantly evolving. This evolution maintains the straight principle of judicial specialisation, which entails concentrating jurisdiction for IP disputes in as few courts as possible. European trade mark and design infringement cases are subject to the exclusive jurisdiction of the Commercial Courts of Alicante and the respective Court of Appeal. Jurisdiction for national patent and trade mark cases is concentrated in the commercial courts of only seven cities in Spain.

As part of this policy of concentration and specialisation, a new development for 2023 is a change in the jurisdiction for the judicial review of SPTO decisions issued in any proceedings concerning the granting or refusal of rights, including the new cases of nullity and revocation. Until now, the judicial review of these decisions has been in the contentious-administrative jurisdiction. However, from 14 January 2023 the civil courts will have jurisdiction, namely the section specialising in IP within the Provincial Courts of Appeal.

Spain and Latin America 

There are strong links between Spain and the countries of the Americas, especially Spanish-speaking countries, in matters of Intellectual Property. There are many similarities in the rules governing IP rights, registration systems and commercial and judicial practices. Furthermore, Spain is frequently the port of entry to Europe for many companies and exporters from Latin American countries, and they often decide to open their representative offices in cities such as Madrid or Barcelona.

Practical recommendations 

To do business in Spain, it is advisable to get to know, abide by and apply its rules on Intellectual Property. Any commercial project ought to have a prior assessment and proper advice regarding this type of rights with a twofold purpose; the first is to be aware of the possible risks of infringing the IP rights of third parties, and the second is to ensure the best protection of the IP rights owned so that they are adequately safeguarded in Spain.

Although the legislation is very similar to that of other European countries, many aspects of the interpretation, the practical application and the jurisprudence are quite particular. For this reason, it is highly advisable to seek local advice from expert legal professionals specialising in IP Law.