Intellectual property (propiedad intelectual) protects works (texts, photos, music, designs, software); industrial property (propiedad industrial) protects trade marks, patents and industrial designs. An intellectual property lawyer who also covers industrial property registers what can be registered and defends you if you are copied.
Registering a trade mark at the OEPM
Prior search for identical or similar trade marks: this is the step that avoids the most problems.
Application to the Spanish Patent and Trade Mark Office (OEPM), in the Nice classes; third parties can oppose it.
Outside Spain: EUIPO (European Union trade mark) or WIPO (OMPI in Spanish).
If you are going to set up a company, check the name as a trade mark too.
Copyright: it arises on creation
Copyright (derechos de autor) arises when the work is created, without registration. It includes moral rights that cannot be waived (authorship, integrity) and exploitation rights (reproduction, distribution, communication to the public, transformation). As a general rule it lasts for the author’s whole life and 70 years after their death.
Commissioned software, websites and content
If you commission a logo, a website or a program from outside, you need a contract that assigns the exploitation rights to you; if the program is created by an employee in the course of their duties, the law gives those rights to the employer, unless otherwise agreed. More in commercial lawyer and data protection.
Patents and industrial designs
A patent requires novelty, inventive step and industrial application and lasts a maximum of 20 years: do not disclose the invention before applying. The appearance of a product is protected as an industrial design, renewable for five-year periods up to a maximum of 25.
If you are copied
If someone copies your trade mark or your work
Depending on the case, there are several ways to respond. In the most serious cases, the infringement can be a criminal offence.
01
Someone applies for a trade mark similar to yours
You can oppose the registration of that trade mark while it is being processed.
02
Your trade mark or your work is used without permission
You can send a formal demand for the use to stop.
03
The copy is on platforms or search engines
You can request the removal of content from platforms and search engines.
04
The use does not stop after the formal demand
You can claim before the courts for the infringement to stop and for compensation for the damage.
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Frequently asked questions
Questions about intellectual property
What is the difference between intellectual and industrial property?
Intellectual property protects authors' creations (books, photos, music, software); industrial property, signs and creations with a business use, such as trade marks, trade names, patents and designs.
How long does a registered trade mark last?
10 years from the application date, renewable indefinitely for 10-year periods. If you do not renew it in time, you can lose it.
Do I have to register my works to have copyright?
No. The rights arise when the work is created. The Intellectual Property Registry (Registro de la Propiedad Intelectual) is voluntary and serves as evidence of authorship and the date.
Does registering my company's name protect my trade mark?
No. The company name is registered at the Companies Registry (Registro Mercantil), but the trade mark is only protected if you register it at the OEPM or the EUIPO.
What do I do if someone uses my trade mark without permission?
Gather evidence of the use and consult a lawyer. The usual approach is to start with a formal demand and, if the use does not stop, to claim before the courts for it to stop and for compensation.
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