Intellectual Property Trademarks in Spain
Intellectual property is a culmination of intangible property rights which owners have over their creations. It is largely based on finding a suitable registration to render the desired entitlements over the property. Registration of a trademark, patent, or copyright are all examples of legal protection offered by a state over an individual’s unique intellectual creation. Since the subjects of the protection granted by such tools are intangibles, the protection prevents abuse of the creation itself as opposed to a particular physical object. Depending on the legal tool attained, the rights one has will vary. With that said, one common entitlement to all institutions of intellectual property rights is the right of exclusion. Such an allocation of property rights rewards creators for their inventions. It allows them to monopolize how it is used, by which beneficiaries, and over what period of time.
A trademark is a protection method often used to cover a sign or design of a brand that is unique and identifiable to a specific business. The right of exclusion, amongst other rights included in the bundle of entitlements of a trademark, allow an individual to license and authorize someone to use or sell said trademark as they wish. It enables the proprietor to stop other people from using signs that are alike or similar if they do not have previous rights to do so.
The requirements for the creation of a trademark and obtaining its protection are harmonized across the European Union (“EU”) through Regulation 207/2009. Trademarks exist based on the distinctiveness of the graphical representation of the sign and its legality. Since the primary function of a mark is to point to the business of a certain proprietor, it must be unique or distinct enough to establish this connection solely by its graphics. With that said, generic names such as “Apple” or “Camel” still became registered trademarks. The reason being that the names have become attached to the products and services of the respective companies in the markets they exist in. There is a fixed association of the names to the specific brands rendering generic names as distinct in the scope of a market. And so, the distinctiveness of a sign is judged individually. The second condition is the mark’s lawfulness within the legal system that provides the protection. It may not violate a state’s public policy, rules or regulations by its characteristics.
The reach of the protection provided depends on the regime of specialty and principle of territoriality. The specialty of a trademark is a characteristic that links a business with its consumer. It indicates the origin of the product and eventually the quality of the brand. Since products come in different classes, when one applies for a trademark, it is an application for exclusivity in that particular sector. The protection granted is only for the industry in which the creator identifies the trademark to belong to in the application. Similarly, the principle of territoriality limits the creator’s privileges over the mark to breaches from and in the country which awarded the registration.
The protection of a trademark may be obtained for an unlimited duration. The EU allows for the connection between the sign and the brand to remain for as longs as the creator is in the market. The only requirement to keep the trademark is the proprietor’s use of it. As long as the creators are complying with mandatory use of the trademark in the industry, it is theirs to keep for the time they are in the market.
Registration is an essential aspect for trademark creation. It is the rule that brings about the protection but is simultaneously the exception. According to the article 6 bis of the Paris Convention for the Protection of Industrial Property, unregistered trademarks that are “well-known” are subject to protection from reproduction, imitation, translation, or an act aimed to create confusion with another mark. For creators to attain such protection, they must show that the sign is well-known either in terms of its representation amongst consumers targeted by the product or by notoriety of the trademark.
By registering a trademark in Spain, the creator will have protection in all of the Member States of the EU. The first step to register in Spain is establishing a distinct and identifiable sign that portrays the good or service of the creator. The availability of the mark for registration may be checked prior to the application by using the trademark locator service. Assuming that the sign is vacant and unregistered, the proprietor may proceed. Second, one must fill and file “Instancia de solicitud 4101” as well as pay the required fee to the Spanish Patent and Trademark Office (“SPTO”). Once performed, the applicant will be given a receipt with an application number. The office shall carry out a formal examination of the application and shall inform the applicant of any flaws as to correct them within one or two months. If there are no flaws, or if they have been amended in due time, the application will be published in the Trademarks Journal to give the opportunity for any individual to see and potentially oppose it. During this time, the office will check if the substantive requirements of the application are met. If there is no opposition to the application and the substantive criterion is satisfied, the trademark registration is finalized and certified.