Spain ranks among the European countries with the lowest consumption of illegal content online, coming in fifth place among the countries with the fewest accesses to this type of material. According to the latest report from the European Union Intellectual Property Office (EUIPO) on online piracy, Spanish users access illegal content 8.5 times per month, a figure significantly lower than the European average of 10.3 times.

Key Findings from the EUIPO Report on Piracy in the EU

Prepared by the author based on the official EUIPO report

The study, which analyzes the Internet usage habits of users aged 15 to 74, highlights the following key points:

1. Stabilization of Illegal Consumption

Overall piracy increased through the end of 2021 and has since plateaued, averaging 10.3 illegal accesses per user per month. While illegal access to television content shows a slight increase, the decline in consumption of other types of content, such as movies, has offset this trend.

This phenomenon is primarily attributed to factors such as:

• The rise in popularity of legal streaming platforms such as Netflix and Prime Video.
• Awareness campaigns about the legal and economic consequences of piracy.

2. Television Program Piracy

Television leads the way in illegal consumption, accounting for 50% of all illicit accesses—that is, 5.1 visits per month to pirate sites per user.

The report also highlights that television content continues to attract interest because:

• Many popular shows and series are available only on specific platforms, leading users to seek out illegal alternatives.
• The diversification and proliferation of streaming platforms, which lead users to resort to piracy to avoid paying for multiple subscriptions.

3. Streaming is the preferred method

Streaming remains the predominant method for consuming illegal content. Pirated IPTV platforms not only provide immediate access without the need for downloads, but they now also mimic legal services in terms of their interface and user experience, making them more appealing and leading to a 10% increase in visits to these sites over the past year.

4. Specific Trends by Content Type

• Movie piracy has declined, possibly due to the near-immediate availability of movies after their release.
• Music and software are on the rise, driven by easy access to shared files and specialized websites.
• Unauthorized access to live sports broadcasts also continues to rise.
• The illegal consumption of books, magazines, and other texts remained stable.

Toward More Responsible Consumption

The report paints an encouraging picture, with signs of stabilization and even a decline in certain categories of illegal consumption. This reflects progress toward greater use of legal services.

However, the path toward the complete elimination of piracy requires a profound cultural shift. It is essential that users understand the impact of piracy and adopt habits that value and respect the work of creators. Hence the importance of educational initiatives, along with the development of attractive and accessible legal alternatives to combat this problem.

Alberto Gallo, Associate in the Legal and Anti-Piracy Department.

Product counterfeiting is a problem that affects various sectors, but when it comes to toys, the implications are even more serious. These items are intended for young children, and any defect or failure to meet quality standards can have devastating consequences.

Among the most commonly counterfeited toys are everything from dolls, surprise toys, and building blocks to characters from video games, animated TV series, and animated movies.

The Dangers of Piracy to Children's Health and Safety

Counterfeit toys often fail to comply with the safety standards established by the competent authorities. Article 116.1 of the Penal Code states that any person criminally liable for a crime is also civilly liable if the act results in damage or harm. In the case of counterfeit toys, the harm can be considerable. The materials used in these products may contain toxic substances, such as lead or phthalates, which are extremely harmful to children’s health. In addition, small parts can easily come loose, causing choking.

The Most Common Tricks Used by Counterfeiters

Among the most common techniques used by counterfeiters to smuggle goods into the country is the counterfeiting of labels. For nearly two decades, there has been a serious problem with products bearing the CHINA EXPORT mark, which is nearly identical to the CE (European Conformity) mark. Products with the China Export mark do not meet the quality standards required by the European Union, putting consumers’ health at risk.

CE Marking (European Conformity) vs. China Export Seal

Another tactic used by counterfeiters is to ship counterfeit products in small packages, which makes it virtually impossible for Spanish customs officials to stop each and every one of those packages for inspection.

How can manufacturers take action to combat piracy?

Toy manufacturers have several tools at their disposal to protect themselves against counterfeiting. Not only can they register the trademark for the toy in question, but they can also choose to register the toy as a three-dimensional trademark. To register a toy as a three-dimensional trademark, the toy’s shape must have at least one feature that is not inherent to the generic function dictated by the nature of the product.

On this matter, there are several court decisions, such as the Judgment of the Court of Justice of the European Union of September 18, 2014, HAUCK, C-205/13, and the Judgment of the General Court of the European Union of December 6, 2023, BB SERVICES GMBH, T-297/22. In addition, toys can be protected by copyright, industrial design rights, and even patents.

What about consumers?

A buyer could only take legal action if they purchased a counterfeit product believing it to be genuine, as they could be considered a victim of fraud. In such cases, the consumer could file a complaint against the seller for fraud under Article 248 of the Penal Code.

Ultimately, the fight against counterfeit toys is a battle in which all stakeholders—from manufacturers and authorities to consumers—must play a role. Raising awareness of the risks and taking preventive protective measures can help mitigate this threat.

Alberto Gallo, Associate, Legal Department, Anti-Piracy

The annual Mobile World Congress, the world's largest mobile phone and technology trade show, is fast approaching. As usual, the event will take place at the Fira de Barcelona exhibition center over four days, beginning this year on Monday, March 3, and concluding on Thursday, March 6.

Risks to exhibitors arising from disputes over patents, trademarks, designs, or copyrights

Given that more than 2,000 leading companies in the sector participate in this conference, showcasing new telecommunications products, mobile applications, and software innovations to the world, the Mobile World Congress becomes, year after year, a setting prone to potential conflicts between companies, primarily due to possible violations of industrial and intellectual property rights.

There are three main risks faced by exhibitors:

1. Requests for injunctions against exhibiting companies.

In past editions of the MWC, the courts in Barcelona and Alicante have processed a large number of requests for ex parte injunctions within 48 hours and without prior notice to exhibitors. In some cases, the defendant companies were able to have the injunctions lifted by posting a substitute bond. In other cases, the exhibitors’ failure to respond or to post such a bond resulted in the injunctions remaining in effect for the duration of the conference.

2. On-site fact-finding procedures during the Congress.

In addition to preliminary injunctions, the courts have also processed, during some editions of the MWC, a number of requests for fact-finding proceedings aimed at obtaining information—at the event itself—about exhibiting companies, their products, and technical data.

3. Judicial presence at exhibitors' booths.

The risk posed by precautionary measures and fact-finding proceedings is even greater when we consider that, in previous editions, notification of the court ruling and its enforcement—through a demand to remove the displayed products—took place once the Congress had begun, through the presence—albeit discreet—of judges and law enforcement officials at the exhibitors’ booths.

Therefore, it is essential that exhibitors develop a strategy in advance to enforce their patent, trademark, design, or copyright rights and avoid incidents.

On-Call and Rapid Response Protocol: A Set of Precautionary Measures to Protect Industrial and Intellectual Property Rights

In light of these disputes, for years now, the Commercial Court of Barcelona—as well as the EU Trademark Court in Alicante—have implemented an On-Call and Rapid Response Protocol. This protocol serves the dual purpose of avoiding, to the extent possible, the adoption of preliminary injunctions without a hearing for the defendant and, at the same time, implementing effective measures to protect those rights.

Under this Protocol, the courts undertake to rule on the admissibility of requests for preliminary orders (intended to prevent the adoption of interim measures without a hearing of the defendant) on the same day they are filed (within 24 hours). In addition, they undertake to rule on requests for precautionary measures within 2 days (48 hours), scheduling a hearing within 10 days if a preventive brief has been filed.

The Protocol will take effect on February 1 and will remain in effect until the last day of the conference, March 6.

Therefore, now is the time for companies participating in the Mobile World Congress to plan ahead and take the necessary steps to ensure the protection of their rights, thereby avoiding potential setbacks during the event.

At ELZABURU, we have played a significant role, participating in approximately 25% of the cases resolved by the courts under the Mobile World Congress Protocol over the past 7 years. This year, the firm will once again provide support to its clients by implementing measures both to effectively safeguard their industrial and intellectual property rights and to mitigate any risk of unexpected actions by third parties that could jeopardize their normal participation in the upcoming congress.

María Cadarso, Associate, Legal Department, Elzaburu

Some procedural reforms are merely stopgap measures designed to correct deficiencies in the system or to fill gaps that have been revealed by judicial practice. Others, however, are so far-reaching that they forever transform the nature of litigation or the judicial system. As if it were a Three Kings’ Day gift, on January 7, 25 years ago, the legislature presented us with a law that marked a turning point in the history of Spanish procedural law.

What impact did Law 1/2000 on Civil Procedure have?

Law 1/2000, in fact, adopted a model of adversarial civil procedure that stood in stark contrast to the one that had governed Spain since … 1881! The shift the law proposed in the methods and practices of the civil justice system—and in the working habits of the professionals involved (judges, attorneys, court representatives, and court clerks)—was so significant that a one-year transition period was required before it took effect. Our Litigation team at the time, led by Enrique Armijo and Carlos Morán among them, witnessed the impact of this law’s enactment and the efforts of all parties to familiarize themselves with its provisions and to resolve the doubts and uncertainties it raised.

All those who, at that time, were committed to defendingindustrial and intellectual property rights—once they had overcome their initial resistance to a paradigm shift—applauded the new system without reservation. The law embraced an Anglo-Saxon model of principle-based litigation (oral proceedings, immediate participation, and concentration) that aligned very well with the demands of litigation involving patents, trademarks, or copyrights.“It was a year of anxieties, hopes, fears, and expectations as the new ordinary trial procedure made its debut in the courts,” Enrique Armijo recalls.

We must not forget that the Law affected all areas of industrial and intellectual property claims: the introduction of a general preliminary proceedings process, the explicit regulation of injunctive relief with and without a hearing, and the organization of expert testimony. And a particularly exciting procedural process. “What sleepless nights we had facing the challenges of oral proceedings at the preliminary hearing and the trial!” admits Carlos Morán.

How the Law Has Evolved Since 2000

Although the Act was presented as the definitive modernization of the Spanish civil procedure system and was unquestionably technically sound, time has passed and reforms have continued to unfold. Suffice it to say that over the past 25 years , Act 1/2000 has been amended no fewer than 50 times. The most recent amendment came as recently as the start of the year, during the judicial recess, and was introduced surreptitiously: Organic Law 1/2025, dated January 2, on measures to improve the efficiency of the Public Justice Service. But that is another story. For now, let us pay a nostalgic tribute to Law 1/2000.

Enrique Armijo (Partner in the Legal Department at Elzaburu) and Carlos Morán (Partner in the Legal Department at Elzaburu)

The entry into force of Royal Decree 933/2021 has brought data protection in the tourism sector into the spotlight. The requirement to collect and retain a large volume of sensitive information about travelers for three years has raised concerns among experts, who warn of privacy risks and potential penalties.

A disproportionate measure?

The data that must be recorded includes personal, financial, and contractual information, such as national ID numbers, addresses, credit card numbers, and email addresses. This volume of information, combined with the requirement to store it for three years, increases the likelihood of data breaches and misuse. Furthermore, some of this data—such as credit card numbers—is highly sensitive, which increases the risk of identity theft in the event of a security breach.

Without robust safeguards, the risk of losing control over personal data is very high. Furthermore, this regulation could violate fundamental principles of the GDPR (General Data Protection Regulation), such as the principle of data minimization, which requires limiting data collection to the minimum necessary to achieve the intended purpose.

Administrative Burdens and Legal Risks for Businesses

Data protection is not only a concern for travelers but also a challenge for businesses. The decree imposes a significant administrative burden, especially on small businesses and the self-employed, who must implement technological systems to properly record, store, and protect information.

These investments are not only costly but also complex to implement in companies with limited resources, which can lead to unintentional noncompliance and, ultimately, penalties.

Fines can be substantial. Noncompliance with the GDPR due to issues such as data breaches, security failures, or misuse of information can result in penalties of up to 20 million euros or 4% of the company’s annual revenue, whichever is greater.

In addition, the decree establishes specific fines forviolations related to passenger registration, ranging from 100 to 30,000 euros, depending on the severity.

Equally important is the impact on day-to-day operations. Managing this data can slow down check-in processes, lead to conflicts with customers who refuse to provide additional information, and divert resources from other critical areas of the business. This is especially relevant in a highly competitive industry such as tourism, where any delay or problem can negatively affect the customer experience and, ultimately, the establishment’s reputation.

The Importance of Ensuring Data Proportionality

The precedent set by the Court of Justice of the European Union’s annulment of Directive 2006/24/EC, due to its indiscriminate nature, should serve as a warning. In the words of Ruth Benito, a data protection expert at Elzaburu: “The mass storage of personal data without proportionate measures or clear justification creates risks that may be irreversible for privacy.”

This scenario underscores the need to place data protection at the center of any measure involving the mass processing of personal information. Only a balanced approach—one that combines robust security safeguards with a clear and proportionate justification—will ensure both public safety and the fundamental rights of citizens. At the same time, it is crucial to protect the competitiveness of the tourism sector, one of Spain’s economic drivers.

Within this framework, companies must prepare to meet this challenge by investing in compliance and data protection systems that not only meet regulatory requirements but also strengthen travelers' trust.

Ruth Benito, Of Counsel. Privacy and Data Protection 

The wine market, like other products with a protected designation of origin or protected geographical indication, faces a growing threat: counterfeiting. This problem is becoming increasingly common in the wine industry given the high demand and the considerable prices that some wines can command. Furthermore, the relative ease with which wine can be replicated and counterfeited makes it an attractive target for criminals.

Such is the scale of this phenomenon that a recent operation in France, Italy, and Switzerland dismantled a network counterfeiting renowned French wines, which were sold for up to 16,000 euros through legitimate retailers who, in many cases, were unaware of the bottles’ fraudulent origin. This case illustrates the sophistication and scope that counterfeiting in the wine industry can reach, impacting not only the economy but also consumer confidence.

What is the economic impact of counterfeits on the wine industry?

One of the main threats to the wine industry's economy is counterfeiting. According to a study by the EUIPO, losses associated with counterfeit wine amount to 1.3 billion euros, affecting both large wineries and small producers.  

This illegal activity not only reduces revenue but also leads to the loss of 4,800 jobs in the industry and undermines the efforts of legitimate producers, who work to offer high-quality wines in an increasingly saturated market.

What health risks do counterfeit wines pose to consumers?

Counterfeit wine not only affects the wine industry’s economy but also posesa serious health risk to consumers. Due to a lack of quality and health controls, many of these bottles contain additives, colorants, and, in some cases, even highly dangerous substances such as methanol, toxic dyes, and other unregulated additives, which can cause poisoning, irreparable damage to the nervous system, and even death.

Furthermore, counterfeit factories are often located in unsanitary conditions, which puts consumers’ health at risk and causes other serious harm, such as environmental damage, job losses, and tax evasion.

Strategies to Combat Counterfeiting and Protect the Wine Industry

This problem must be addressed through collaboration among various stakeholders: wineries, law enforcement agencies, and regulatory bodies. Wineries, for example, can provide valuable information to authorities regarding illegal distribution routes, illicit trade channels, and detection methods. It is also crucial to strengthen border controls, particularly with regard to imports from outside the European Union.

Prevention is a cornerstone in the fight against counterfeits. Consumers must be aware of the risks and have the information they need to make informed decisions when purchasing wine. Here are some useful recommendations for choosing authentic products:

• Verify the product's source: Research the seller's information, including their address and contact details. Legitimate retailers' websites usually have clear return and refund policies.

• Check labels and packaging: Look for possible errors or slight variations in logos, seals, or packaging. These details may indicate counterfeit products.

• Evaluate prices: Be wary of prices that are excessively low and do not align with market prices.

Wineries and producers can also take preventive measures, such as implementing traceability technologies, QR codes, and security labels that allow consumers to verify the authenticity of their products.

In short, counterfeiting in the wine industry is a problem that requires a coordinated response. Consumers should exercise caution, while wineries and authorities have a responsibility to strengthen control mechanisms and security measures to prevent counterfeit products from entering the market.

Tránsito Ruiz, Associate in the Anti-Piracy Practice Group at Elzaburu

The telecommunications sector in Spain is taking an important step toward self-regulation with the implementation of the new Code of Conduct. The AEPD and Autocontrol have launched a new mediation system, which took effect on December 17, to resolve data protection disputes within the sector through out-of-court settlement.

Greater representation of the sector, greater coverage for users

One of the main changes in the Code of Conduct is the expansion of its scope. The original operators that were part of the Protocol—Movistar, Orange, Vodafone, and MásMóvil, among others—are now joined by Euskaltel, Virgin Telco, R, and Telecable. This ensures greater representation of the sector, which directly benefits users by providing a common framework for resolving complaints related to data protection.

The Code also expands the types of cases covered under its scope of application. This means that more types of complaints can now be addressed through this mechanism, although those seeking financial compensation are expressly excluded. This approach reinforces the Code’s primary objective: to facilitate a swift, free, and effective resolution of issues related to privacy and data protection.

SELF-REGULATION: The Key Element in the Process of Promoting Swift and Flexible Agreements

To ensure impartiality, the Code designates the AUTOCONTROL Advertising Jury as the supervisory body. This independent third party is responsible for managing mediations between interested parties and participating operators.

Mediation typically lasts 30 days, but this period may be extended to up to three months if there are valid reasons. Although AUTOCONTROL’s proposed solutions are not binding, the agreement reached by both parties will be binding. In the event of a disagreement, the complainant may request that the complaint be referred to the AUTOCONTROL Panel, provided that the operator agrees.

A notable feature of the Code is its commitment to the confidentiality of proceedings, a crucial requirement given that many complaints may involve sensitive information. However, the Panel’s decisions are public, which brings transparency to the process and reinforces its credibility.

“Mediation, managed by an independent third party such as AUTOCONTROL, promotes swift and flexible agreements, although the non-binding nature of the proposed solutions may limit its effectiveness in certain cases. This is because, as is customary in any type of mediation, the proposed solutions offered by the mediator—in this case, the AUTOCONTROL Mediation Unit—are not binding. Only the agreement reached by the parties and the decision of the AUTOCONTROL Panel would be binding, should the parties voluntarily decide to submit the matter to the Panel,” Agustín Alguacil.

A system of penalties designed to act as a deterrent through referral to the Spanish Data Protection Agency (AEPD)

The Code reinforces its effectiveness through a system of penalties for noncompliant operators. Violations are classified as minor, serious, or very serious, and can result in penalties ranging from warnings to the temporary suspension of rights under the Code or even expulsion.

Although the sanctions do not include financial penalties, their deterrent effect lies in the reputational impact and in the referral of the decisions to the Spanish Data Protection Agency (AEPD). This mechanism complements the AEPD’s powers, ensuring that the self-regulatory system aligns with national and European regulations.

Overall, the Code of Conduct serves as an example of how the private sector can establish effective self-regulatory mechanisms, striking a balance between sectoral autonomy and the rights of stakeholders.

Agustín Alguacil, Associate, Legal Department. Business and Contracts

On July 13, Donald Trump survived an assassination attempt while delivering a speech at a rally in Pennsylvania. Just a few hours later, T-shirts and other merchandise featuring an image of the triumphant candidate—with his fist raised—were already being sold, after he emerged unscathed from the attack.

Is it legal to sell these products without authorization from Trump or the photographers who took these photos? Regulations regarding the right to reputation and the right to one's own image vary by jurisdiction.

What Is the Right to One's Own Image Like in Spain?

The applicable organic law in Spain is Law 1/1982, of May 5, which, in Article 8.2, establishes that the right to one’s own image“shall not preclude its capture, reproduction, or publication by any means in the case of persons holding public office or engaged in a profession of public prominence or visibility, provided that the image is captured during a public event or in places open to the public, or where a significant historical interest prevails.”

The fact is that, although a person’s increased public profile entails a reduction in the protected scope of their image and privacy, this does not mean that such a person is deprived of the rights to which they are entitled.

In other words, although photos of public figures may be published, the unauthorized commercial use of these images would be unlawful and would fall under the provisions of Article 7, paragraph 6, of Law 1/1982, which establishes that “the use of a person’s name, voice, or image for advertising, commercial, or similar purposes, without the consent of that person, shall be considered an unlawful infringement of the right to honor, to one’s own name, and to the image of the affected person.”

Yes to reproduction, no to commercialization

Under this law, at least in Spain, products cannot be marketed using a photograph of a politician without that person’s consent. And, for the same reason, the work of a photographer or artist cannot be reproduced or distributed without their authorization, or without the authorization of a natural or legal person authorized by them to license such uses.

Those who violate these laws may face civil actions to protect their honor, privacy, or personal image in connection with the use of the photographed person’s image, as well as civil actions for infringement of intellectual property rights in connection with the unauthorized use of the photographs.

Similarly, if someone were to use a photograph—of which they are not the author—for commercial purposes after digitally altering it, they would still be infringing on the rights to that photograph.

Among the exclusive rights enjoyed by intellectual property rights holders are the rights of reproduction, distribution, public performance, and adaptation.

Complainants may ask platforms to remove infringing products

Just a few hours after the infamous attack on Trump, T-shirts and other merchandise commemorating the event were already available for purchase on AliExpress and Amazon. Do these platforms bear any responsibility for the sale of these items?

Amazon, like other online sales platforms, has mechanisms in place for reporting infringing content that are available to holders of industrial and intellectual property rights, as well as rights to reputation, privacy, or one’s own image; therefore, those who believe they have been harmed may contact the platform directly to request the removal of such content.

It would also be worth exploring the possibility of seeking injunctive relief (either before filing a lawsuit or in conjunction with it) to have infringing products removed or blocked from sale.

Would Trump or the photographer have any financial rights to those sales?

Any rights holder whose rights are being exploited by a third party without their consent is entitled to claim compensation, either in the form of a license or, at a later stage—as part of a claim—as compensation for the damages caused.

Alba Mª López, Associate Partner in the Business and Contracts Practice at ELZABURU

We have recently learned of the Supreme Court’s (SC) decision, which represents a very significant update regarding tax deductions for technological innovation and sets an important precedent.

The Supreme Court has ruled that the Ministry of Science’s report on the tax deduction for technological innovation is binding on the Tax Administration. Consequently, all of us who work to study and advise on the best financing options for innovation have reason to celebrate following the three rulings handed down in appeals Nos. 948, 1633, and 1635/2023.

Supreme Court Ruling Strengthens the Application of Tax Deductions for R&D&I

In summary, the Supreme Court has ruled that the Ministry of Science’s report on the tax deduction for technological innovation is binding on the Tax Administration. The Administrative Appeals Chamber has recognized the appellants’ right to the tax deduction for technological innovation that they had claimed in their self-assessments.

Some key points to put this Supreme Court decision—which all stakeholders involved in R&D&I in Spain had been awaiting—into context are as follows:

2. The Administrative Court has overturned the rulings of the National Court that upheld the reports of the IT Support Team (EAI), an internal unit of the State Tax Administration Agency (AEAT), on the grounds that they contradicted the binding opinion on technological innovation issued by the Ministry of Science and Innovation.
3. Article 35.4 of the Consolidated Text of the Corporate Income Tax Law (TRLIS) of 2004 provides that companies may request a report from the Ministry of Science and Innovation (MCIN) for the tax deduction for technological innovation. According to the law, that report is binding on the AEAT.

Given its terms, the report holds the AEAT accountable in all respects—that is, not only with regard to the classification of the project as part of such a technological innovation, but also with regard to the investments and expenses submitted by the companies that have been evaluated positively.

3. In particular, such binding reports cannot be challenged or disregarded by the AEAT’s bodies, either in determining whether projects qualify for the tax deduction or with regard to the expenses included in the project. 

The Ministry of Science’s Reasoned Report: Binding and Decisive for the Treasury

In short, at ELZABURU, we believe that this decision by the Supreme Court should provide legal certainty to companies regarding the application of R&D&I tax deductions, ensuring that the Spanish Tax Agency (AEAT) fully respects the Binding Reasoned Reports.  In fact, we have already received a favorable ruling on an appeal for reconsideration on behalf of a client for whom we argued in favor of applying these deductions, and the Spanish Tax Agency has decided to fully grant the appeals filed.

However, given that the Supreme Court has ruled on deductions for tax years subject to the TRLIS regulations—which, with regard to the rules on reasoned reports, differ in certain respects from the current Corporate Income Tax Law (LIS)—we will have to wait until the rulings are published and analyzed in depth before we can determine their implications under current legislation. We therefore recommend caution pending a more thorough and in-depth analysis of the rulings.

In conclusion, the good news is that, based on this significant decision by the Supreme Court, there are arguments and considerations that suggest legal uncertainty regarding the application of R&D&I tax deductions has been considerably reduced.

New Challenges and Opportunities in Legislation on Tax Deductions for Technological Innovation

However, it would be both desirable and necessary to reform the current law so that it is better suited to the new technologies and ICT (Information and Communications Technologies) sector—an industry that accounts for an increasingly significant and growing share of our GDP—in order to better align the tax incentive system with R&D&I projects in Spain.

One suggestion for improvement that we believe is worth considering, for example, could be to conduct a comparative analysis with neighboring countries (Portugal, France, and Belgium, among other European Union countries) in an effort to emulate those legal frameworks that provide greater legal certainty for R&D&I-intensive companies in Spain.

In any case, we would like to commend the Supreme Court for this decision, as it provides the legal certainty that all of us in the R&D&I sector have been hoping for for many years.

We therefore welcome this ruling, which supports the legislature’s ultimate goals: to promote and encourage competitiveness and innovation among Spanish companies.

David Puentes, Head of Innovation Funding at ELZABURU 

After reviewing the achievements and evolution of the European Union Trademark and Design Court, in this fourth and final installment marking its 20th anniversary, we will reflect on the challenges facing this judicial body in the current context.

With the United Kingdom’s departure from the European Union, the Alicante court is in a key position to assume an even more prominent role in international litigation. We will analyze the opportunities and challenges brought about by Brexit and how the court can strengthen its leading role in the future.

Brexit: An Opportunity for the Alicante Court?

Who could have imagined that the United Kingdom’s exit from the European Union could have the unintended consequence of strengthening the Spanish court’s rolein international trademark litigation? But that is the case—or could be—if certain key factors are taken into account in this context.

The starting point is that the European Union Trademark and Design Court in Alicante—since the EUIPO’s headquarters are located in that city—has residual jurisdiction to hear infringement actions brought between parties who do not have a domicile in Europe.

This jurisdiction makes Alicante a potentially key forum for resolving international disputes involving industrial property, especially in the post-Brexit environment.

The Need to Strengthen Leadership

The United Kingdom, as one of the leading countries in terms of the number of EU trademark applications and a major player in international trade, now faces a significant change in its participation in the EU trademark system.

With the UK's departure from the EU, legal actions brought by British plaintiffs against companies based outside the EU—as well as those brought by such companies against British firms—could begin to be transferred to Alicante.

Of course, such a leading role is not automatic; it must be earned. The somewhat flexible concept of“domicile”in Europe that the Court of Justice is establishing may or may not encourage the shift of litigation to other jurisdictions. But this would not be the case if the Spanish court were to establish itself as a European benchmark in this area.

On the contrary, in addition to this residual forum, there are certain opportunities forforum shoppinginvolving EU trademarks that could create anincentive to bringlitigation to Spain.

In this regard, the fledgling court in Alicante faces both a challenge and a historic opportunity to reaffirm its position on the European judicial scene.

Challenges and Outlook for the EU Trademark and Design Court

It should be noted—to begin with the mostcircumstantialpoint—that a new City of Justice is under construction in Alicante. Given the international scope of these cases, it is reasonable to insist that in the new building set to open (in 2025?), the European Union Trademark and Design Court (the joint courtroom that the three existing courts might share) should present the best possible image of our country. 

But an iconic setting alone is not enough forthecourt’sproceedings. It is also necessary to strengthen the unification of legal doctrine among the three courts—all operating under the umbrella of the Eighth Section of the Provincial Court—through measures such as the aforementioned approach of acting in acollegialmanner.There is no room for procedural biases when the prestige of Spanish institutions in the eyes of the world is at stake.

In the meantime, we must conclude this commemorative series as we began it: with warm congratulations to the court on its twentieth anniversary. While the song says “twenty years is nothing,” for the European Union Trademark and Design Court, these have been years of development, specialization, and consolidation.

As attorneys, we can only express our gratitude for your work, and we hope that you will continue to be a pillar in the defense of industrial property rights in Europe.

Carlos Morán, Partner in the Litigation Practice Group at ELZABURU