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30Sep
Distintividad de una marca
by Lexlem IPSin categoría

Para poder registrar una marca y que sea efectiva, debe ser lo más “distinta” posible de cualquier otra marca que designe productos y/o servicios iguales o similares, para que estos puedan ser diferenciados en el mercado de aquellos ofrecidos por la competencia y, así, evitar el riesgo de confusión entre los consumidores finales.

 

Además, dicha marca no debe ser “descriptiva” de ningún producto y/o servicio que pretenda amparar.

 

Por otro lado, si hablamos de Marcas Europeas, este hecho se complica, ya que la distintividad debe extenderse a todos los países miembros de la Unión Europea.

 

Por ejemplo, dos signos que en un estado miembro puedan ser completamente diferentes cuando los comparamos de forma tanto fonética, como gráfica y conceptual, en otro de los estados miembros, podrían ser similares, por lo que el signo solicitado podría ser denegado.

 

Además, nunca debe procederse a solicitar una marca que pueda ser considerada como descriptiva de los productos y/o servicios que pretenda amparar en ninguno de los idiomas oficiales de los estados miembros, ya que, en este caso, también carecería de distintividad, aun cuando incorpore elementos gráficos o tipografía especial.

 

Por ello, antes de proceder con la solicitud de una marca, es necesario consultar con un profesional para que analice la misma y pueda asesorarle sobre la conveniencia o no de presentar dicha solicitud de marca o buscar otro signo más conveniente.

 

30/09/2020

LEXLEM IP

info@lexlem.com

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19Jun
Industrial Designs. General Issues and Benefits of Registering them.
by MariaLXSin categoría

What can be registered as an industrial design?

A wide variety of elements can be registered as an industrial design, such as: Lines, contours, shapes, textures, materials, furniture, shoes, watches, jewelry, textile prints, household appliances, vehicles, technical and medical instruments, shop windows, interior design of shops, architectural structures, web pages, book covers, magazines …

Which are the requirements?

In order to register an industrial design, this must be new and have a unique character. That is to say, no 0dentical or almost identical industrial design should have been made public previously.

Regarding the singular character, it is understood that it must produce to the users, different impression that the one caused by any other previous public design.

In addition, it is necessary that the design does not violate public order or good customs.

How long does it last?

Depending on the terrytory that it has been registered, for example, a Community registered design will have a duration of 5 years from the date of filing of the application and can be renewed for consecutive periods of 5 years up to a total of 25.

However, an industrial design that is not registered will give to its owner a protection of 3 years from the date it has been made public. Not being able to extend this term.

Why is it advisable and beneficial to register an industrial design?

By registering an industrial design, the owner obtains the exclusive right to use it, being able to prevent its reproduction or imitation by third parties, provided that it is not consented to by the owner.

In addition, it gives its products a differentiating character to the products of its competitors.

On the other hand, the owner can obtain economic benefits by granting licenses to third parties or by selling it.

What territories can be covered?

Depending on the interest of the owner, the industrial design can be registered at national, community or international level.

For more information, contact us, trust professionals: info@lexlem.com

Maria Carcelen
June 19, 2020

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08Jun
Industrial Property Infringement Action
by MariaLXSin categoría

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: info@lexlem.com
June 8, 2020 – Lexlem IP

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22May
COVID19 and Patents. Will citizens around the world be able to access it in accordance with current laws?
by MariaLXPropiedad Industrial

First of all, and taking into account the social responsibility of the researchers, we understand that, once the vaccine is developed, the owners of the vaccine will very likely agree to grant favourable contractual licenses for the good of humanity.

However, and in the hypothetical case that this does not happen, patent regulations have sufficient mechanisms to deal with these cases of health emergency.

Therefore, even if no voluntary licenses were granted, the State could compel one or more companies to grant them in order to ensure supply. For example, the Spanish Patent Law, in its Articles 91 and 95 say the indicated below.

Article 91. Assumptions of compulsory licensing.

The granting of compulsory licenses on a certain patent will proceed when one of the following cases occurs:

[…]

  1. d) Existence of reasons of public interest for the concession.

Article 95. Compulsory licenses for reasons of public interest.

  1. For reasons of public interest, the Government may submit, at any time, a patent application or a patent already granted, to the compulsory licensing regime, thus providing for it by royal decree.
  2. It will be considered in any case that there are reasons of public interest when:
  3. a) The initiation, increase or generalization of the exploitation of the invention, or improvement of the conditions in which such exploitation is carried out, are of primary importance for public health or for national defense.
  4. b) The lack of exploitation or the insufficient quality or quantity of the exploitation carried out implies serious damage to the economic or technological development of the country.
  5. c) The national supply needs so require.
  6. The royal decree referred to in section 1 must be agreed upon at the proposal of the Ministry of Industry, Energy and Tourism. In cases where the importance of exploiting the invention is related to public health or national defense, the proposal must be formulated jointly with the Minister responsible for health or defense, respectively.
  7. The royal decree that establishes the subjection of the patent to the compulsory licensing regime may directly establish, in whole or in part, the scope, conditions and license fee in the cases provided for in article 97.2, or remit the fixing of such conditions to the appropriate procedure before the Spanish Patent and Trademark Office provided in the following chapter for its concretion in the resolution granting the license.
  8. When the subjection to compulsory licensing for reasons of public interest is due to its importance for national defense, the possibility of requesting such licenses from one or more specific companies may be reserved.

Maria Carcelén

05/22/2020

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16Mar
COVID-19 notice
by Lexlem IPSin categoría

As you might have heard in Spain the government has ordered the state of alertness due to the spreading of the Covid-19 virus.

We hope that all of you and your dear ones are doing well. At the same time we would like to inform you that all our staff and families are fine.

 

For your information, our firm is and will be fully operative even during this period, with the staff working from home. Therefore, we are able to provide IP assistance to all our clients around the world.

 

For further information and/or assistance: info@lexlem.com; maria@lexlem.com

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