Trademarks and Trade Names

A trade mark is a sign that enables businesses to distinguish their goods or services from those of their competitors. Trademarks may consist of words or combinations of words, images, figures, symbols, graphics, letters, numbers, three-dimensional shapes, etc. Their function is to differentiate and distinguish certain products or services in the market from other identical or similar products or services, as well as to identify their commercial origin, and in a way to serve as an indicator of quality and a means of promoting sales.

A trade name is the sign or designation that identifies a company in commercial transactions and serves to identify, distinguish and set it apart from other companies carrying out identical or similar activities.

A company name is the name that identifies a legal entity in commercial transactions as a party to legal relationships and, therefore, subject to rights and obligations.

Any natural or legal person.

Ownership rights to a trade mark and a trade name are acquired through valid registration in accordance with the provisions of this Act.

Según el formato del signo que se protege:

DENOMINATIVA: es la que está formada exclusivamente por palabras o letras, números en caracteres estándar, sin características gráficas, de disposición ni color.
FIGURATIVA: es aquel signo formado por palabras, letras o números con caracteres, estilización o disposición no estándar con o sin elementos gráficos o de color o que estén exclusivamente formada por elementos gráficos.
TRIDIMENSIONAL: son aquellas marcas que consisten en una forma tridimensional.
DE POSICIÓN: son aquellos signos que consisten en la manera específica en que la marca se coloca o figura en el producto.
PATRÓN: son aquellos signos exclusivamente constituidos por un conjunto de elementos que se repiten periódicamente.
COLOR: son aquellas marcas compuestas exclusivamente por un solo color sin contornos o por una combinación de colores sin contornos.
SONORA: son aquellas marcas constituidas exclusivamente por un sonido o combinación de sonidos.
MOVIMIENTO: son aquellas marcas compuestas de un movimiento o un cambio en la posición de los elementos de la marca.
MULTIMEDIA: son las marcas constituidas por la combinación de imagen y sonido.
HOLOGRAMA: son las marcas compuestas por elementos con características holográficas.
OTROS: aquellas marcas que no estén cubiertas por ninguno de los otros tipos de marcas.

En función del ámbito geográfico que se pretende proteger, existen marcas nacionales, marcas europeas y marcas internacionales.

Trademarks are granted exclusively for certain goods or services, which are categorised into different classes within an International Classification (the Nice Classification). Each good or service falls within a specific class. There are 34 classes of goods and 11 of services, making a total of 45 classes.

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The processing of the application takes approximately 8 to 10 months.

Trademark registration is granted for a period of 10 years from the date of application and may be renewed indefinitely for successive periods of 10 years.

A patent is a title that recognises the right to exploit the patented invention exclusively, preventing others from manufacturing, selling or using it without the holder’s consent. In return, the patent is made available to the public for general knowledge.

For an invention to be patentable, in any field of technology, it must be new, involve an inventive step and be capable of industrial application.

In this regard, an invention is considered new if it is not included in the prior art, which is understood to mean everything that, prior to the filing date of the patent application, has been made available to the public in Spain or abroad, whether through a written or oral description, through use, or by any other means.

Furthermore, an invention involves an inventive step if it does not result from the prior art in a manner that is obvious to a person skilled in the art.

Finally, an invention is considered to be capable of industrial application when its subject matter can be manufactured or used in any kind of industry, including agriculture.

The right conferred by a patent consists of ‘the right to exclude others’ from manufacturing, using or introducing the patented product or process into trade.

A patent may relate to a new process, a new apparatus, a new product, or an improvement or enhancement thereof.

It is valid for 20 years. To keep it in force, annual fees must be paid from the date of grant.

There are three different routes for obtaining a patent valid in Spain:

National route: A Spanish patent is applied for at the Spanish Patent and Trademark Office (OEPM), which will be governed throughout its legal life, from application to expiry, by the provisions of Law 24/2015 on Patents.

European route: A European patent is applied for at the OEPM, which is subsequently processed by the European Patent Office (EPO) and, following its grant and corresponding validation, allows you to obtain a patent with the same effect as those granted via the national route. It will be governed throughout its legal life, from application to expiry, by the provisions of the 1973 Munich Convention and by the Spanish Patent Law 24/2015.

International route or PCT: The international processing of a patent is streamlined through a single application to the Spanish Patent and Trademark Office (OEPM) and a single procedure before the World Intellectual Property Organisation (WIPO), so that, once completed, patent protection for the invention may be sought in each of the signatory states to that Treaty (152 in 2017), including Spain. In short, this is not a procedure for granting patents, nor does it replace national grants; rather, it is a procedure through which the processing prior to grant is standardised.

No, as it will not meet the novelty requirement for the patentability of inventions. From 1 April 2017, it will also no longer be possible to protect such an invention as a utility model, as worldwide novelty is now required, whereas previously only national novelty was required.

Under the Patents Act, an invention is considered new if it is not included in the prior art. The prior art comprises everything that, prior to the filing date of the patent application, has been made available to the public in Spain or abroad through a written or oral description, through use, or by any other means.

A utility model protects inventions with a lower level of inventiveness than those protected by patents, consisting, for example, of giving an object a configuration or structure from which some utility or practical advantage is derived.

The device, instrument or tool protected by a utility model is characterised by its ‘utility’ and ‘practicality’ and not by its ‘aesthetics’, as is the case with industrial designs.

The scope of protection afforded by a Utility Model is identical to that conferred by a patent.

It is valid for 10 years. To keep it in force, annual fees must be paid from the date of grant.