SPAIN Law and Practice Contributed by: Marina Gómez, Arochi & Lindner
In Spain, international treaties become part of the national legal system upon ratification, as per Article 96 of the Spanish Constitution, and are considered self-executing. Foreign trade mark holders are protected under the Spanish Trade Mark Act (Law 17/2001) and EU Regulation 2017/1001 on the European Union Trade Mark (EUTMR). Priority rights under the Paris Convention for the Protection of Industrial Property allow foreign holders to claim earlier fil - ing dates for applications filed within six months. Foreign copyright holders are protected under the Spanish Intellectual Property Law (Royal Legislative Decree 1/1996) and the Berne Con - vention for the Protection of Literary and Artistic Works. Spain recognises the automatic protec - tion of works created by authors from mem - ber countries of the Berne Convention, TRIPS Agreement, and other applicable treaties. 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks Among the types of distinctive signs are:
The following trade marks require authorisation from a person other than the applicant: • the civil name or image identifying a person other than the applicant for the trade mark; • the first name, surname, pseudonym or any other sign that, for the general public, identi - fies a person other than the applicant; • signs that reproduce, imitate or transform cre - ations protected by copyright or by another industrial property right other than those referred to in Articles 6 and 7 (prior marks and trade names); and • the name, trade name or business name of a legal person which, prior to the filing or priority date of the mark applied for, identi - fies in the course of trade a person other than the applicant, if, because of its identity with or similarity to those signs, and its identical or similar scope of application, there exists a likelihood of confusion on the part of the public. Industrial designs may be registered as trade marks provided that they meet the requirements for registration as trade marks (see 2.2 Essential Elements of Trade Mark Protection ). Concerning the protection of well-known marks that are neither registered nor in use, see 1.1 Governing Law . 2.2 Essential Elements of Trade Mark Protection Pursuant to Article 4 of the TM Act, any sign may constitute a trade mark, provided that such sign fulfils the following requirements: • it distinguishes the goods or services of one undertaking from those of other undertakings; and
• product marks; • service marks; • collective marks; • guarantee marks; and • trade names.
In accordance with Article 4 of the TM Act, all signs – particularly words, and including per - sonal names, designs, letters, numerals, col - ours, the shape of goods or of their packaging, or sounds – may be registered as trade marks.
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