FREQUENTLY ASKED QUESTIONS

Below are the most interesting questions we have collected: questions

I. TRADEMARKS AND TRADE NAMES

The brand is the sign that distinguishes the products or services of a company in the market, whether it is individual or social.

The brand is a distinctive sign. Its function is to differentiate and individualize products or services on the market from other identical or similar products or services. In addition, the brand identifies its business origin and, in a certain way, it is an indicator of quality and a means of sales promotion.

The brand is, therefore, the distinctive sign used by the entrepreneur to differentiate his products or services in the market from the products or services of competitors.

The commercial name is the sign or denomination that identifies a company in commercial traffic. This serves to distinguish it from other companies that carry out identical or similar activities.

The commercial name, therefore, distinguishes the company that manufactures or markets the products or provides the services. The brand, on the other hand, distinguishes the products or services that said company manufactures, markets or provides.

Thus, a manufacturer of pants would register as a trade name the one that he uses in his manufacturer’s business activities, for example, in his relationships with suppliers, customers, etc.

The sign or name with which these pants are sold will be the brand of the product.

In the previous legislation, the establishment label, which was the sign or denomination with which the business premises were distinguished, existed as a registrable distinctive sign. The current Trademark Law does not contemplate this type of distinctive sign. The owner of a trademark or trade name is empowered to use these signs on the frontispiece of his business premises or establishment, making it unnecessary to survive this type of distinctive sign.

Along with the brand itself or individual brand, the Law regulates the collective mark and the guarantee mark. The collective mark is one that serves to distinguish in the market the products or services of the members of an association of manufacturers, merchants or service providers. The owner of this brand is said association.

The guarantee mark is one that guarantees or certifies that the products or services to which it is applied meet common requirements. In particular, the requirements concerning its quality, components, geographical origin, technical conditions, method of product development, etc. This brand cannot be used by its owner, but by third parties whom it authorizes, after controlling and evaluating that the products or services of this third party meet the requirements that said brand guarantees or certifies.

Both the collective mark and the guarantee mark require to be registered that it be accompanied with the application for registration of the corresponding regulation of use.

Según el artículo 4.1 de la Ley de Marcas: “se entiende por marca todo signo susceptible de representación gráfica que sirva para distinguir en el mercado productos o servicios de una empresa de los de otras”.

Pueden especialmente ser marca:

  • Las palabras y combinaciones de palabras.
  • Las imágenes, figuras, símbolos y dibujos.
  • Las letras, las cifras y sus combinaciones.
  • Las formas tridimensionales, entre las que se incluyen los envoltorios, envases y la forma del producto.
  • Los sonidos, siempre que sean susceptibles de representación gráfica, por ejemplo, mediante el pentagrama.
  • Cualquier combinación de los signos mencionados.

Esta enumeración es enunciativa, no limitativa.

  • NAMES : arbitrary or fancy names. Company names, pseudonyms and proper names. The figures, letters, etc …
  • GRAPHICS : the graphic symbols, logos, drawings, etc …
  • MIXED : the combination of word and graphic elements.
  • THREE-DIMENSIONAL : packaging and wrapping, the shape of the product, etc …
  • SOUNDS : Provided that said sounds consisting of the brand can be represented graphically.
As the trademark registration gives its owner the right to use it exclusively in commercial traffic, the sign must meet a series of validity and registrability requirements, so the Trademark Law (arts. 5, 6, 7, 8, 9 and 10) establishes a series of prohibitions:

They cannot be registered as a brand:

  • Signs not capable of graphic representation. For example, tactile, gustatory, olfactory and sound signs when they cannot be represented graphically.
  • The generic and specific signs insofar as they constitute the designation of the genus or species of the products or services for which the brand is intended. In addition to the signs made up exclusively of mentions or indications that in commerce or in ordinary language have come to constitute the necessary or usual name of the product or service in question.
  • Descriptive signs. Composed exclusively of signs that serve or may serve in commerce to designate the quality, quantity, destination, value, place of origin, time of production or other characteristics of the products or services.
  • The three-dimensional shapes that are imposed by the nature of the product itself or that produce a technical result or that give an essential value to the product.
  • Those who are contrary to the Law, public order or good customs.
  • Those who can mislead the public.
  • Signs that reproduce or imitate the municipal, provincial, Autonomous Communities, Spanish State and other State coats of arms, flags and emblems unless duly authorized.
  • Signs that include insignia, emblems or shields other than those related in the previous section and that are in the public interest, unless there is authorization.

The sign adopted as a brand must be available. A sign that is identical or similar to a previously requested or registered trademark, trade name or establishment label may not be registered as a trademark. When said sign is requested for products, services or activities identical or similar to those protected by these previous signs and there is a risk of confusion among the consuming public.

When the adopted sign is identical or similar to a well-known or renowned brand -or trade name-, access to the registration of said sign is also prohibited with respect to products, services or activities other than those protected by said well-known or renowned brand, if this it may imply an improper use of it or an impairment in its distinctive character, notoriety or reputation.

The adopted sign may also not be registered, without due authorization, when:

  • Consist of the name, pseudonym, surname, etc. or in the image that for the general public identifies a person other than the applicant.
  • Reproduce, imitate or transform creations protected by a copyright or other industrial property right (inventions, models or industrial drawings).
  • It is confusing with the commercial name, denomination or business name that identifies in the economic traffic a person other than the applicant.
  • It is confusing with an unregistered trademark, but which is well known in Spain. When this brand is not well known, it may not be registered either, if the registrant is the commercial agent or representative in Spain of the owner of said brand in any of the Member States of the Convention of the Paris Union or the World Trade Organization and do not have his consent.
A class, according to the Nice Classification, serves to identify the products or services under which the brand is related and registered.

The corresponding list is detailed below:

NICE CLASSIFICATION
8th Edition 2002

SEE CLASS TITLES
The COMMERCIAL NAME is the distinctive sign through which a natural or legal person is usually identified in the exercise of their business activity.

With the granting of a COMMERCIAL NAME, the right of exclusive use of a social name or person is obtained as with the Trademark to apply it to commercial transactions of a business.

This exclusivity is not obtained by the fact of the constitution of the company and its inscription in the Mercantile Registry, since with the inscription in the Mercantile registry, the Trade Names, Trademarks or Establishment Labels are not protected, but only its company name. , putting the first ones mentioned at the mercy of any usurper in the market that takes advantage of its prestige and reputation.

  • Name and address of the interested party.
  • Denomination, badge or logo to register.
  • Products to which the brand, name or label must be applied.
  • Authorization in our favor empowering us to act on behalf of the interested party.

II. TECHNICAL CREATIONS (PATENTS AND UTILITY MODELS)

We must consider TECHNICAL CREATIONS, as a synonym for inventions, that is, it is a technical rule which is the result of a creative process of the inventor or inventors; Through the invention, one or more rules are formulated in which technical means are indicated to solve a technical problem. Therefore it must be said that technique and technique constitute the essential ingredient of the invention.

For an invention to be considered PATENT , it is essential that it meets the following requirements.

  • New
  • Inventive step
  • Susceptible for industrial application

The novelty required of patents is a world novelty; The novelty destroys everything that, before the filing date of the application, has been made accessible to the public in Spain or abroad. The inventive step implies that the invention is not evident from the state of the art for a person skilled in the art.

Patents are granted for a non-extendable term of 20 years from the date of filing of the application, after which the invention passes into the public domain.

For an invention to be considered a PATENT, it is essential that it meets the following requirements.

  • New
  • Inventive step
  • Susceptible for industrial application

The UTILITY MODEL , protects those inventions in which the novelty results in a useful and advantageous result compared to what was previously known. It is the ideal mode of protection for small inventions, consisting of giving an object a peculiar shape, achieving through it a certain technical advantage, such as: utensils, instruments, tools, devices, devices or parts thereof .

The Utility Model that regulates the Patent Law in title xlv articles 143 to 154. Reduces its duration of exclusive use to 10 years.

III. CREATIONS OF FORM (INDUSTRIAL MODELS AND INDUSTRIAL DRAWINGS)

Along with technical creations characterized by providing a solution to a technical problem with technical means, there are other creations through which only an aesthetically new form is generated. Well, these are THE CREATIONS OF FORM that are protected through industrial and artistic models and drawings.

INDUSTRIAL MODEL means any object that can serve as a type for the manufacture of a product and that can be described by its structure, configuration, ornamentation or representation.

The difference between Utility Models and Industrial Models is that the latter exclusively protects the shape or configuration. It is a three-dimensional creation, with certain peculiarities in terms of configuration. As for example a container, a bottle, etc. While the Utility Models, they are peculiar because the possible configuration adds a technical advantage, operation, etc …

The INDUSTRIAL DRAWINGS , consist of a set of lines and colors, which make up a two-dimensional creation, and are defined as “Any arrangement or set of lines or colors or colors and lines applicable for a commercial purpose to the ornamentation of a product using any manual, mechanical, chemical or combined means “As for example: the bands or combination of colors that can be seen in various sportswear.

For the protection of Industrial Models and Drawings a world novelty is required. The duration of these figures is 10 years, renewable only for another 10-year period (art. 185 EPI).