On July 17, 2025, the Central Economic-Administrative Court (TEAC) issued two key rulings (RG 5685/2024 and RG 1267/2025) that standardize the criteria applicable to tax deductions for Research, Development, and Technological Innovation (R&D&I) activities under the Corporate Income Tax. This decision marks a milestone for innovative companies, as it provides greater regulatory clarity and strengthens legal certainty in an area that, until now, had been fraught with significant uncertainties.
Until recently, many companies followed the guidelines established by the General Directorate of Taxes (DGT), which allowed them to claim R&D&I deductions generated in prior fiscal years, even if they had not been included in the initial self-assessment. Binding rulings such as V-802-2011, V-0297-2012, and V-2400-2014 supported this approach, giving companies some flexibility to plan the use of their tax incentives.
The situation changed in June 2022, when Binding Ruling V-1511-2022 introduced a much more restrictive approach. From that point on, deductions could only be claimed if they were included in the tax return for the corresponding fiscal year or if an amendment was requested within the statutory deadlines. This change caused uncertainty and created risks for companies with R&D&I projects, which could lose significant tax benefits.
In its July 2025 rulings, the TEAC definitively clarifies the situation and identifies two distinct scenarios:
The TEAC adheres to the interpretation in effect prior to Advisory Opinion V-1511-2022. Therefore, R&D&I deductions generated before that date may be claimed in subsequent tax years without the need to amend the initial self-assessment, provided that the right to claim them has not expired.
This represents a significant opportunity for companies that, for strategic or planning reasons, did not take full advantage of their deductions at the time. They will now be able to claim them and optimize their tax burden.
In subsequent rulings, the TEAC reaffirms the mandatory nature of the new criterion. That is to say:
For businesses, this means strengthening internal controls and tax management processes to ensure that an administrative oversight does not result in the loss of significant tax benefits.
The new framework provides legal certainty in an area that is particularly sensitive for companies with investments in R&D&I.
Among the main impacts are:
The current regulatory framework, combined with recent rulings by the TEAC, provides an ideal context for analyzing and redesigning the management of tax deductions.
Companies have up to 18 years to utilize the profits generated, which expands their strategic options. This makes this moment a key opportunity to:
With these rulings, the TEAC establishes a more stable and predictable environment for companies that invest in R&D&I. Legal certainty and regulatory clarity make it possible to plan projects with a broader scope, without fear of changes in interpretation that could jeopardize the associated tax benefits.
At Elzaburu, we closely monitor regulatory developments regarding tax incentives for R&D&I in order to provide our clients with up-to-date, thorough advice tailored to their needs, helping them make the most of the opportunities offered by the current tax framework.
David Puentes, Head of Innovation Financing at Elzaburu.
In an increasingly competitive and globalized market, protecting strategic information and a company’s know-how is essential. In this context, trade secrets have become a key tool for safeguarding companies’ competitive advantage.
In this article, we explain what trade secrets are, their close relationship with patents, how they are protected, and where they are regulated.
A trade secret is any type of information, knowledge, or know-how of any nature (financial, strategic, R&D, marketing, organizational, among others) that meets the requirements established in the Trade Secrets Act (Law 1/2019, of February 20), which are:
The protection of an invention can be addressed through various legal mechanisms, the most notable of which are patents and trade secrets. These forms of protection can be used as alternatives or in a complementary manner, depending on the protection strategy adopted by the company.
In many cases, it may be advisable to protect an invention through both means. For example, before filing a patent application, it is essential to keep the technical information related to the invention confidential, since its disclosure could compromise the novelty requirement necessary to obtain the patent. To avoid this risk, one can resort to protection through trade secrets.
Once a patent application has been filed, there may be additional information that, while not part of the patent, constitutes valuable know-how, such as methods of use, improvement processes, or recommendations for achieving optimal results. This information can also be protected as a trade secret, thereby expanding the scope of protection.
In other cases, trade secrets and patents may be considered alternatives, which makes it necessary to analyze their main characteristics before choosing one over the other.
There is no official registration process for the protection of trade secrets, so there are no associated official fees. However, it is essential to produce evidence proving their existence and to demonstrate that reasonable measures have been taken to maintain their confidentiality, in accordance with Law 1/2019 on Trade Secrets.
Patent protection requires a formal registration process, which must be completed in each jurisdiction where protection is sought.
A trade secret is protected only as long as it remains confidential. It has no defined time limit, so it can remain protected indefinitely, provided it is not disclosed. If it is disclosed—whether intentionally or accidentally—it loses its status as a trade secret and, with it, its legal protection.
A patent grants an exclusive right to exploit the invention for a period of twenty years, in exchange for its public disclosure. This information may be accessed by third parties, and once the term of protection has expired, it may be used freely.
A trade secret does not confer a right to prohibit. Protection is limited to cases of unlawful acquisition, use, or disclosure. To establish its existence and protection, it is necessary to comply with legal requirements and provide evidence demonstrating these facts.
A patent does grant an exclusive right that prevents third parties from exploiting the invention during its term. Its existence and content are supported by the corresponding official registration, which facilitates its proof and legal defense.
Both trade secrets and patents are intangible assets that can be transferred or licensed to third parties.
The decision to protect an invention through a trade secret, a patent, or a combination of both forms of protection will depend on multiple factors, such as the nature of the invention, its life cycle, the ease of maintaining confidentiality, business strategy, and the competitive environment. An appropriate combination can provide stronger and more lasting protection, maximizing the strategic value of the company’s intangible assets.
Proper management of intangible assets is essential, especially when it comes to trade secrets. To protect them, the owner must take a proactive and committed approach. This approach manifests itself in two key areas: the protection of information or knowledge and the development of a clear internal strategy.
Protecting trade secrets requires that the rights holder carefully identify and document all information or knowledge that could constitute a trade secret, classify it, and take reasonable measures to ensure that the information remains confidential.
And finally, it is necessary to avoid infringing on third parties’ trade secret rights by conducting proper due diligence.
At the European level, trade secrets are primarily regulated by Directive (EU) 2016/943 of the European Parliament and of the Council of June 8 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure(hereinafter “the Directive”). In addition to harmonizing the various laws across the EU, the Directive aims to act as a deterrent against all conduct constituting unfair competition, provided that the trade secret holder has properly protected their trade secret and can prove it.
In addition, the Directive defines trade secrets very broadly, encompassing both commercial and technical information, and defines the concepts of acquisition, use, and disclosure of trade secrets, devoting a chapter to exceptions and establishing a set of rules to ensure the availability of civil remedies for infringements.
At the national level, following the transposition of the Directive into Spanish law, trade secrets in Spain are governed by Law 1/2019, dated February 20, 2019, on Trade Secrets.
At Elzaburu, we offer specialized services for implementing plans to identify, protect, manage, and maximize the value of trade secrets.
We conduct due diligence on trade secrets, perform valuations, and provide advice on licenses and agreements related to these intangible assets. In addition, we assist our clients with pre-litigation and litigation matters related to the defense and protection of their trade secrets, ensuring comprehensive and strategic protection of their confidential information.
Cristina Espín, Senior Associate in the Legal, Business, and Contracts Department at Elzaburu.
In a business environment that is increasingly reliant on online channels, Internet piracy has become a real threat to brands. It is no longer just about physical copies: today, product counterfeiting, illegal sales, and the unauthorized use of intangible assets result in losses amounting to millions and a serious erosion of consumer trust.
The impact of these trademark infringements goes beyond economic damage: they directly affect reputation, erode differentiation, and can jeopardize the viability of business models based on innovation. According to the EUIPO, piracy and counterfeiting cause annual losses of 83 billion euros in the European Union, particularly affecting sectors such as fashion, cosmetics, electronics, sports, and entertainment.
Given this situation, we’re going to explore the five essential steps to protect your brand against digital piracy, focusing on prevention and the implementation of legal and technological strategies:
The first step in any protection strategy is to properly register your industrial and intellectual property rights. This includes trademarks, designs, patents, and copyrighted works. Registration must be filed with official agencies such as the OEPM (Spanish Patent and Trademark Office), the EUIPO (European Union Intellectual Property Office), or WIPO at the international level. Having your rights registered not only establishes your legal ownership but also allows you to act quickly in the event of any unauthorized use.
Today, online piracy takes many forms: from counterfeit products on marketplaces to fake social media profiles. To combat it, it is essential to establish continuous digital monitoring.
There are advanced technologies that scan the internet for misuse of trademarks or copyrighted images, accurately identifying the source of the infringement. These tools, combined with the work of specialized law firms, make it possible to detect and remove illegal content with a success rate of over 80 percent.
Collaboration with digital platforms is one of the cornerstones of the current fight against piracy. Marketplaces such as Amazon, AliExpress, and eBay, as well as social media platforms such as Facebook, Instagram, and TikTok, have created mechanisms that allow rights holders to report infringements and request the removal of illegal content.
Using these channels significantly shortens response times and limits the spread of pirated products before they cause irreversible reputational damage.
Although the digital channel is the most visible, many counterfeit goods continue to be distributed through traditional logistics networks. In this context, customs surveillance becomes a key tool.
Companies can request customs intervention to identify and intercept suspicious shipments before they enter the market. This measure not only curbs the trade in counterfeit goods but also helps track down illegal distribution networks.
In a constantly changing ecosystem, where infringers operate anonymously, swiftly, and on a global scale, each case requires a tailored legal response. Having a legal team with expertise in digital intellectual property and industrial property enables us to act swiftly and devise effective strategies in both civil and criminal proceedings.
Furthermore, in cases of cross-border violations, specialized legal advice enables the coordination of actions across different jurisdictions and the use of international cooperation channels, such as Europol, Eurojust, or the European guidelines on anti-piracy legislation.
Protecting a brand in the digital environment is not a one-time task, but an ongoing process. Only through a comprehensive approach is it possible to respond effectively to the growing threat of digital piracy.
Protecting a brand today means much more than simply registering a name or a logo. It involves strategically investing in protection, digital monitoring, preventive legal actions, and institutional collaboration.
At Elzaburu, we support our clients in this endeavor by offering an ethical, rigorous, and strategic approach to protecting what gives their business its value: their brand.
Transi Ruiz, Senior Associate in the Legal and Anti-Piracy Department at Elzaburu.
For the first time, the U.S. Copyright Office (USCO) has recognized copyright protection for an image generated by artificial intelligence. The work, titled *A Single Piece of Cheese*, marks a milestone in the history of intellectual property and sparks a debate about the future of copyright in the age of AI.
Kent Keirsey, CEO of Invoke—the platform used to generate the image— announced this historic achievement on his social media accounts:
"We have played a small role in the history of U.S. copyright by securing the first copyright for a single image created exclusively with AI-generated content."
This case is significant because, until now, the U.S. Copyright Office had refused to register works generated by artificial intelligence, citing the lack of human involvement in the creative process.
The key to legal recognition in this case lies in human intervention within the creative process. Specifically, the selection, coordination, and arrangement of AI-generated elements have been recognized, demonstrating a level of involvement that has transformed the work into something distinctly human.
The creation of "A Single Piece of Cheese " was not limited to simply having an AI automatically generate the image. Using the Invoke platform, the original image was modified and retouched through the following process:
It was this series of artistic interventions that led the USCO to reconsider the protection of the work in January 2025 (following the rejection of the application in September 2024).
The U.S. Copyright Office (USCO) has previously reviewed copyright applications related to works created using artificial intelligence, although with different results than in this case:
Jason Allen used the Midjourney tool to create the work *Théâtre D’Opéra Spatial* (2022), but his application was rejected because he failed to demonstrate a sufficient level of human involvement.
In 2023, Kris Kashtanova was granted rights recognition for the story and visual composition of her graphic novel *Zarya of the Dawn*, but not for the AI-generated illustrations.
That same year, in the Rose Enigma case, protection was granted only to the portion based on a prior hand-drawn sketch by Kashtanova, while the elements added by artificial intelligence were excluded from protection.
In all of these examples, the USCO reaffirmed that artificial intelligence cannot be considered an author in its own right and that protection is granted only when there is clear and significant human involvement in the creation of the work.
In the European Union, there is still no official ruling by courts or intellectual property registries recognizing copyright in works generated by artificial intelligence. However, the recognition of copyright in A Single Piece of Cheese marks a turning point in the relationship between AI and intellectual property.
In this context, it is likely that European case law will, in the future, gradually define the interpretive criteria for determining the minimum level of human involvement required for a work generated by AI to be protected.
At ELZABURU, specialists in intellectual property, we closely monitor these developments and are ready to advise creators and companies on protecting their rights in the digital environment. Contact us for more information on how to protect your creations under current law.
Agustín Alguacil, Associate in the Legal at Elzaburu.
One in ten medicines on the market in developed countries is counterfeit or fails to meet the required quality standards, according to data from the World Health Organization (WHO). This alarming figure not only poses a serious risk to public health but also causes economic harm to the pharmaceutical industry and hinders global scientific and medical progress.
Counterfeit medicines pose a serious health risk, as they may contain the wrong ingredients, incorrect dosages, be past their expiration date, or contain hazardous substances. Their use endangers patients’ lives, especially in the treatment of serious diseases such as cancer, HIV/AIDS, tuberculosis, or malaria. In these cases, the use of counterfeit products is not only ineffective but can also worsen the patient’s condition, contribute to the development of treatment resistance, and undermine the effectiveness of public health policies.
The consequences of using counterfeit medications are particularly dangerous when they include low-quality antibiotics or antibiotics in insufficient doses. Instead of eliminating the infection, these products allow some bacteria to survive and become stronger, promoting the emergence of resistant strains.
Despite efforts by authorities and the industry to curb this threat, the counterfeiting of medicines continues to rise. Over the past five years, the supply of these illicit products has increased by 35 percent, driven primarily by the boom in e-commerce. Digital platforms allow counterfeiters to reach a much wider audience, taking advantage of the anonymity offered by the internet and making it considerably more difficult to track them down and prosecute them.
The situation has become so serious that law enforcement agencies have stepped up their operations against the illegal trafficking of medications. The most recent of these is Operation Shield V, coordinated by Europol between April and November 2024, involved 30 countries. This operation led to the arrest of 418 people and the seizure of counterfeit medications valued at more than 11.1 million euros. These figures highlight the magnitude of the problem and its direct link to organized crime networks.
To combat this threat, European countries have implemented traceability and verification systems within the legal supply chain for medicines. In Spain, the Spanish Medication Verification System (SEVeM) stands out as a key tool for ensuring the authenticity of every package dispensed at pharmacies.
SEVeM assigns each medication a unique identifier, similar to a QR code, which is verified at the time of dispensing. Thanks to this system, it is possible to detect whether a product has been tampered with or does not belong to the authorized supply chain. Currently, more than 22,000 pharmacies, 216 private hospitals, 340 distributors, and 543 laboratories are connected to this network.
Furthermore, pursuant to the Delegated Regulation (EU) 2016/161, as of September 30, 2024, it is prohibited to dispense medicines that trigger alerts in the system and that cannot be ruled out as suspected counterfeits. This regulation strengthens patient safety and requires all actors in the pharmaceutical supply chain to act with the utmost diligence.
The Spanish Agency for Medicines and Health Products (AEMPS) has established specific procedures for reporting suspected cases of counterfeit medicines, which are available to manufacturers, distributors, and pharmacies. These reports are continuously updated and serve as a valuable resource for identifying patterns and preventing new threats.
The fight against counterfeiting requires effective coordination among public institutions, pharmaceutical industry operators, and the public. Information, education, and public awareness are essential to reducing demand for these products and encouraging safe purchases through official channels.
The harm caused by counterfeit medicines is not limited to public health. The economic losses for pharmaceutical companies are significant, as these illegal products compete directly with the originals, damage brand reputations, and reduce the return on investment in innovation.
Furthermore, they discourage scientific research. Developing a new drug requires years of work and enormous financial resources. The entry of counterfeit products into the market undermines those efforts, making investment in science and technology less attractive. Without sustained investment in R&D, medical progress stagnates, and millions of people could be left without access to effective and safe treatments.
The impact also extends to public health systems, which must deal with the consequences of using ineffective medications: repeated treatments, adverse effects, unnecessary hospitalizations, and campaigns to detect or recall products from the market.
To protect yourself from the risks associated with counterfeit medications, it is recommended that you follow these guidelines:
Drug counterfeiting is a global public health problem. It affects patients, harms the economy, undermines innovation, and strengthens organized criminal networks. Strengthening surveillance, promoting public education, and encouraging the purchase of medicines through official channels are essential steps in combating this threat.
At Elzaburu, we continue to support the protection of industrial property rights and to collaborate with authorities and companies to ensure consumer safety and market integrity.
Alberto Gallo.Associate in the Anti-Piracy Department at Elzaburu
Cultural and folk festivals are gathering places that promote cultural diversity and blend historical traditions with contemporary artistic expressions.
From live music to graphic design, including the performing arts, audiovisual arts, and traditional art forms, intangible assets are a cornerstone of these festivals, making them high-risk legal environments if appropriate preventive measures are not taken.
Implementing an effective industrial and intellectual property strategy is not only crucial for protecting the interests of the organizers and participants, but also contributes to the protection of the festival’s culture, sustainability, and recognition.
In the following article, we outline five key points you should consider as part of your strategy for protecting and leveraging intangible assets if you're thinking about organizing a cultural or folk festival:
The first step in protecting intangible assets is trademark registration. Both the festival’s name and logo are distinctive marks, and protecting them is essential to prevent unauthorized use that could damage the event’s reputation or cause confusion among the public. In addition, it is advisable to register the corresponding domain name and create official social media profiles.
Cultural festivals involve the extensive use of copyrighted works: music, videos, stage performances, visual arts, and others. Therefore, it is essential that organizers enter into agreements with the rights holders or their representatives.
These contracts must specify the terms of use for the works, including the duration of the license, the authorized territory, the means of exploitation, and any financial compensation.
Sponsorships are a crucial source of funding for these types of events, but they also involve the shared use of trademarks and other intangible assets, which requires clear and detailed regulations. Sponsorship contracts must specify the terms of use for trademarks, as well as any licenses for copyrighted works used in promotional activities.
It is also advisable to establish control and oversight mechanisms within the organization, during the creation of advertising materials, and throughout the event to ensure:
At cultural events, it is common to capture images and sounds. However, when the event involves works protected by copyright or image rights, clear guidelines regarding image rights and reproduction must be followed.
Organizers must post visible notices on the premises informing the public and the media of the permitted purposes for recording and distributing content. In addition, they must ensure compliance with these regulations to protect creators’ rights and maintain the integrity of the event.
Another aspect to consider is respect for traditional cultural expressions—those unique to traditional communities that form part of their cultural identity and have been passed down from generation to generation. It is always important to ensure that there is no misuse of cultural expressions.
Organizing festivals involves both exposure to risks—such as piracy, counterfeiting, or the misappropriation of content—and the potential to generate financial and reputational benefits through proper management of intellectual and industrial property.
A preventive strategy not only protects organizers from potential violations but also allows them to make the most of intangible assets—through licensing or controlled transfer—thereby transforming cultural value into real opportunities for development.
At Elzaburu, we assist organizers, rights holders, and public and private entities in designing and implementing legal strategies that ensure effective protection of industrial and intellectual property at all types of cultural events. Our team of experts enables us to offer a service that safeguards the value of intangible assets and contributes to the sustainable development of culture.
Cristina Espín, Senior Associate in the Legal Department (Business and Contracts) at Elzaburu.
Over the past decade, CrossFit has evolved from a trend in the field of functional training into a global discipline with millions of followers and more than 12,000 affiliated gyms worldwide. This expansion has been accompanied by a parallel phenomenon: an increase in piracy and counterfeiting in the sport, particularly the misuse of registered trademarks such as“CrossFit.” This situation affects both rights holders and consumers, who may be misled into receiving a service that does not meet the quality standards associated with the brand.
CrossFit is not only synonymous with a high-intensity functional training method; it is also a registered trademark. This distinction is essential to understanding the legal issues surrounding its use. While the training system (based on exercises such as burpees, snatches, or AMRAPs) can be freely practiced by anyone or any gym, the use of the name “CrossFit” is legally protected. In other words, a facility can offer similar workouts without legal issues, but it cannot use the CrossFit trademark without the appropriate license.
The unauthorized use of the name “CrossFit” by unaffiliated gyms constitutes a clear form of sports piracy. These facilities take advantage of the brand’s reputation and prestige to attract customers, without meeting the certification and training requirements or paying the licensing fees required by the brand. This practice not only infringes on intellectual property rights but also constitutes unfair competition against facilities that do operate within the established legal framework, investing in training and quality standards.
CrossFit Inc. has taken an active, global stance in defending its brand. The company has implemented a monitoring network that combines technology with the collaboration of its affiliate community. Through a reporting form available on its official website, anyone can report misuse of the brand. This network makes it possible to detect cases of CrossFit piracy at various levels, from large chains to small neighborhood gyms.
The procedure begins with a friendly notice requesting that the infringer cease the unauthorized use of the trademark on items such as social media, whiteboards, signage, or T-shirts. If a satisfactory response is not received, the case is referred to the legal team in the relevant country. In Spain, this role is carried out by the law firm Elzaburu, which has represented CrossFit Inc. since 2015.
Over the past 10 years, 15 legal proceedings have been filed in Spain, 6 of which have resulted in convictions. Currently, there are eight active lawsuits pending in various national courts, although a significant portion of these disputes are resolved before they go to trial.
The amount of the claims has reached as high as 30,000 euros, a figure that may seem modest but reflects the fact that, in most cases, these claims are settled before the litigation becomes complicated.
The phenomenon of counterfeiting in sports is not new, but in rapidly growing disciplines such as CrossFit, it takes on a unique dimension. The professional appearance of many illegal facilities, the use of similar terminology, and the proliferation of social media as promotional channels make it difficult to distinguish between official and unauthorized operations. Added to this is the creation of disguised names such as “XtremFit,” “CrossBattle,” or “GarageWarriors.”
This practice is a clear example of unfair competition, as it creates confusion among consumers and undermines the efforts of those who comply with the regulations. Furthermore, piracy in CrossFit erodes the brand’s value, which has been built up over years of investing in its reputation and offering a unique athletic experience.
CrossFit’s legal strategy seeks not only to preserve the rights arising from its trademark registration but also to protect a business model based on certified training, standardized quality, and consumer trust. In this context, piracy in CrossFit represents not only a trademark infringement but also a structural risk that affects the identity and sustainability of the ecosystem built around this discipline.
The protection of industrial property rights in the sports sector is crucial to preserving market integrity and protecting both rights holders and consumers. At Elzaburu, we continue to work to ensure that trademark owners can effectively exercise their rights, promoting an environment of fair competition and respect for the law.
Carlos Morán, Partner in the Legal Department at Elzaburu.
No, this isn’t a science fiction movie. On April 3, Organic Law 1/2025 of January 7 on the efficiency of the public justice system came into effect with regard to the new Alternative Dispute Resolution Mechanisms (MASC). This means that, from now on, it will no longer be possible to file a civil lawsuit without first attempting to resolve the dispute through one of the alternative methods proposed by the law.
Over the past three months, the term “admissibility requirement”—so characteristic of procedural law—has become widely known. By granting the MASC this status, the legislature has elevated “the temple of Concord” above “the temple of Justice.”
We said that this isn’t a movie, but the reality is that it could very well be a “remake.” The civil justice system already had this mechanism in place—through the judicial settlement procedure—until the 1984 reform, which transformed it into an optional process. And, by the way, to widespread applause.
There are quite a few new uncertainties emerging now regarding industrial and intellectual property litigation, which our litigation attorneys will be discussing over the coming weeks:
Let's hope, in any case, that *The Day of the MASC*—even though it isn't the title of a movie and despite its air of being a remake—doesn't end up becoming a piece of experimental cinema that leaves moviegoers bewildered.
Enrique Armijo(Partner in theLegalDepartment at Elzaburu) andCarlos Morán(Partner in theLegal Department at Elzaburu).
According to a recent report, Spanish companies in sectors such as fashion, cosmetics, and pharmaceuticals are losing “more than 10% of their revenue due to counterfeiting.” The problem is well documented. For example, in a report by The New York Timeson street vendors selling counterfeit goods in Barcelona, the newspaper highlighted the significant challenges faced by the police in curbing these activities in Spain. As a result, vendors selling counterfeit goods are common in various parts of the country, especially in areas with high tourist traffic.
Below, we share the most effective way for brands to combat the sale of counterfeit products in Spain, as well as highlight some of the markets that rights holders should keep on their radar.
Enforcing intellectual property rights against counterfeiting in Spain requires an understanding of the country’s legal framework, which is aligned with European Union regulations and international agreements. Rights holders seeking to take action against counterfeit products in physical markets must be familiar with both the legal framework and the practical steps to follow.
Trademark infringement cases are primarily prosecuted through criminal proceedings, although trademark owners may also file civil suits, either independently or in conjunction with the criminal proceedings.
According to Article 274 of the Penal Code, trademark counterfeiting is punishable by imprisonment for six months to four years, with the possibility of up to six years in the most serious cases. Fines vary depending on the severity of the offense. Although trademark counterfeiting is classified as a public offense—which allows authorities to take action without the need for a formal complaint— it is recommended that rights holders file a complaint. This enables authorities to gather the necessary evidence, increasing the chances of a successful prosecution.
Once a criminal complaint has been filed and proceedings have begun, the trademark owner may choose to participate in the proceedings as a private prosecutor (which allows the owner to access evidence, present their own evidence, and appeal decisions) or leave the prosecution in the hands of the Public Prosecutor’s Office, which limits the owner’s participation and control over the case.
The liability of property owners will depend on the extent of their involvement in and/or knowledge of the violation committed on their properties.
In the first instance, according to the Spanish Penal Code, property owners bear no liability. However, if it is proven that they were aware of these activities, they could be considered instigators, necessary accomplices, accomplices, or accessories after the fact.
Since their knowledge of the violation could make them liable, it is advisable to notify them of any illegal activity on their properties and to hold them liable in such cases, as recognized in the July 7, 2016, ruling of the Court of Justice of the European Union in Delta Centre (C-494/15).
ANDEMA (Association for the Defense of Trademarks) is Spain’s leading association of intellectual property rights holders. Founded in 1989, its primary function is to represent companies before government agencies to defend their trademark rights against infringements. It currently has 100 member brands from various sectors and countries.
Alberto Gallo, Associate in the Legal andAnti-Piracy Department.
Traditional cultural expressions (TCEs) and traditional knowledge (TK) are fundamental pillars of the identity and heritage of indigenous peoples and local communities. In a globalized world, where traditions are increasingly showcased at festivals, in international media, and on social media, ensuring their protection against misappropriation is a crucial task.
Traditional Cultural Expressions (TCE) include forms of expression such as dances, songs, crafts, ceremonies, stories, and rituals passed down from generation to generation. These are part of a community’s cultural heritage and are considered expressions of folklore.
Traditional Knowledge (TK), on the other hand, encompasses traditional practices, skills, and innovations, such as agricultural techniques, knowledge of medicinal plants, and methods of hunting, fishing, or food preparation.
Both concepts constitute what UNESCO defines as“intangible cultural heritage”: the practices, representations, expressions, knowledge, and techniques—along with the instruments, objects, artifacts, and cultural spaces inherent to them—that communities, groups, and, in some cases, individuals recognize as an integral part of their cultural heritage.
Conventional intellectual property systems consider traditional cultural expressions and traditional knowledge to be in the public domain, unless they are secrets or protected by special legislation.
At the international level, traditional knowledge and traditional cultural expressions are not directly protected by intellectual property law, although there are some legal instruments that provide partial protection:
At the national and regional levels, it is worth noting that some countries have adopted specific legislation requiring authorization from the rights-holding communities before their traditional cultural expressions and traditional knowledge may be used.
Folkloric, artistic, and cultural festivals are venues where traditional cultural expressions and traditional knowledge are showcased and shared. These events present economic and cultural opportunities, but they also carry risks such as:
Although there is no uniform international legal framework, festival organizers and creators can implement best practices to safeguard these rights:
The traditional cultural expressions and traditional knowledge are more than just artistic expressions; they are the very essence of the identity of peoples and communities. Protecting them means ensuring that their voices, stories, and knowledge remain alive for future generations.
At Elzaburu, we understand the importance of intellectual property as a key tool for balancing cultural respect and economic development. Proper management of these rights is essential to building a future where cultural diversity is valued and protected.
Agustín Alguacil, Associate in the Legal Department at Elzaburu.