IP Hub: your resource centre on Intellectual Property

Intellectual property is the set of rights recognised over creations of the human intellect. In Spain it is divided into two blocks: intellectual property in the strict sense (copyright over literary, artistic and scientific works, regulated by RDL 1/1996, LPI) and industrial property (trademarks, patents, designs, utility models, regulated by Trademarks Act 17/2001 and Patents Act 24/2015). Both branches coexist and complement each other.

Software is protected as a literary work by copyright (LPI Art. 96), without the need for registration. The holder acquires rights automatically upon creating the work. Software-implemented inventions may be patentable if they provide a technical contribution beyond the program itself (European Patent Convention, Art. 52). Additional protection may be achieved through trade secrets (Act 1/2019) for undisclosed algorithms and processes.

A registered trademark has an initial term of 10 years from the filing date, renewable indefinitely for successive 10-year periods. However, the trademark may be revoked if it is not put to genuine use for an uninterrupted period of 5 years (Art. 51 Trademarks Act 17/2001), if it becomes the generic designation of the product, or if it misleads the public. Revocation must be declared through administrative or judicial proceedings.

A patent protects inventions with a higher inventive step, requires prior substantive examination and lasts 20 years. A utility model protects inventions with a lower inventive step (incremental improvements of practical-use objects), does not require prior substantive examination (faster grant), and lasts 10 years. The utility model does not protect processes, manufacturing methods or chemical compositions. Both titles may be accumulated for the same invention.

Freedom to Operate (FTO) is a legal analysis that determines whether a company can commercialise a product or service without infringing third-party intellectual property rights (patents, trademarks, designs, copyright). It is conducted before product launch and allows the identification of risks, the design of avoidance strategies (alternative design, licences, invalidation of obstructive patents) or the assessment of risk assumption. It is essential in technology sectors with high patent density.

There are three routes to register a trademark in the EU: (1) national registration with the OEPM (protection only in Spain); (2) European Union Trademark (EUTM) with the EUIPO in Alicante (unitary protection in the 27 Member States); (3) Madrid System of WIPO (international registration designating countries). The EUTM is the most efficient option for companies operating in several EU countries. The trademark must be distinctive, not descriptive, not deceptive and not contrary to public order.

A trade secret is information (formulas, processes, methods, algorithms, customer lists) that is secret (not generally known), has commercial value due to its secret nature, and is protected by reasonable confidentiality measures. It is regulated by Act 1/2019 on trade secrets. It does not require registration, has no term of duration and is protected as long as the secret is maintained. Infringement (misappropriation, disclosure) gives rise to civil actions (injunction, damages) and, in serious cases, criminal actions.

The Spanish Patent and Trademark Office (OEPM), under the Ministry of Industry, manages national registers of trademarks, patents, utility models and designs. The European Union Intellectual Property Office (EUIPO), based in Alicante, manages EU trademarks and Community designs. The European Patent Office (EPO) grants European patents with national validation. WIPO administers international systems (Madrid System, Hague Agreement).