SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
• The comparison shall be made objectively between one or more essential, relevant, verifiable and representative characteristics of the goods or ser - vices, which may include price. • In the case of products covered by a designation of origin or geographical indication, the comparison may only be made with other products of the same designation. • Goods or services may not be presented as imitations or replicas of other goods or services to which a protected trade mark or trade name applies. • The comparison does not contravene the provi - sions on misleading actions, denigration, and exploitation of a reputation or confusion of con - sumers. Comparative advertising is permitted in Spain but is subject to a stringent legal regime to protect both the interests of consumers and the interests of the competitor. Advertisements can explicitly or implicitly allude to and/or identify competitors but must always be truthful and must not be expressed in disdainful or denigrating terms. 4.2 Competitor Copyrights and Trade Marks In the case of acceptable comparative advertising, advertising may contain, explicitly or implicitly, refer - ence to distinctive signs of another advertiser. Beyond that, it is strictly forbidden to imitate the general outline, text, slogan, distinctive signs, visual presentation, music or sound effects of other national or foreign advertisements, even if these ads are no longer in use, provided they are protected by intel - lectual property rights. 4.3 Challenging Comparative Claims Made by Competitors An advertiser can challenge a competitor’s claims through either of the following two options: • A Complaint with Autocontrol: Autocontrol’s deci - sions are binding only on its member companies or if the defendant (if not a member of Autocontrol) accepts voluntarily to submit the case to arbitra - tion. Autocontrol does not impose fines but can
order the withdrawal of the advertisement or its modification. • Legal Action for Unlawful Advertising: Actions against unlawful advertising shall be those gen - erally established for actions arising from unfair competition, but it would be a long and difficult procedure. This claim can be brought before any competent national court. Under the Unfair Com - petition Act, the courts may impose the following measures against acts of unfair competition and illegal advertising: (i) declare the illegality of the act; (ii) stop the unfair conduct or ban its future reiteration and prohibit this conduct; (iii) remove the effects of the unfair act; (iv) rectify misleading, incorrect or false infor - mation; (v) compensation for damages caused by the unfair act, if intent or gross negligence are involved; and (vi) award damages on the basis of a declara - tion of unjust enrichment where the unfair act infringes a legal position protected by an exclusive right or another right of similar economic substance. In judgments upholding the scenarios indicated in (i)– (iv) above, the court may, at the defendant’s expense, order the publication of all or part of the judgment or, where the effects of the infringement are likely to be maintained over time, a rectifying declaration. 4.4 Ambush Marketing Spain has no specific provisions on ambush market - ing and there is hardly any legislation in relation to this matter. Most ambush marketing campaigns do not generally infringe trade marks, copyright, unfair competition or advertising regulations, as they do not promote false qualities, nor do they make false or misleading promises to the consumer. In these cases, even if it is an aggressive marketing practice, there is no possibility of prohibiting or sanctioning ambush marketing, since, in principle, it is not forbidden under Spanish law.
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