By registering a trademark or any industrial property right, the owner of the trademark acquires the right to prevent any third party from using this or a very similar right that may cause confusion in the market, products, services, design, technological advance, etc., and within the territory, for which the right is registered, through civil and criminal actions.
For this, it is necessary that the right exists before the infringement and that it is in force. This right can be presented against any third party that infringes or may infringe the previous right.
By means of an infringement action, the plaintiff can request, among others, that the defendant immediately cease the actions that cause the infringement, compensation for damages, the removal of all the material that infringes all commercial circuits, as well as the publicity that has been carried out, the adjudication of all the infringing materials or the destruction thereof, the closure of the offending establishment and the publication of the resolution of the condemnatory sentence.
These infringement actions can be exercised through both civil and criminal procedures, and the applicable legislation will be as follows:
Civil proceedings: Articles 40 and ss of Law 17/2001, of December 7, on Trademarks; Articles 123 and ss of Law 11/1986, of March 20, on Patents; Articles 721 and ss of Law 1/2000, of January 7, on Civil Procedure.
The competent authority shall be the Judge of First Instance of the host city of the Superior Court of Justice of the CCAA of the defendant’s domicile or, in these cases of violation of rights, also, an election of the plaintiff, the Judge of First Instance of the Community Autonomous where it could have carried out the modification or produced its effects, it will be necessary that the initial writing justify the fulfillment of the traditional requirements of “fumus boni iuris” and “periculum in mora”.
Criminal proceedings: – The Penal Code that deals with crimes against Industrial Property in the Second Section of Chapter XI, Title XIII, in its Book III, articles 273 et seq.
They are also the norms contained in Section Four of the same chapter, which regulates the provisions common to all the crimes contained in chapter XI.
Criminal Procedure Law and Rapid Trial Law.
For more information:
June 8, 2020 – Lexlem IP