What happens when a stadium hosting a World Cup match is named after a brand that does not officially sponsor the competition?
The controversy surrounding some of the stadiums for the 2026 World Cup clearly reflects this tension, as many sports venues are typically identified by logos associated with major brands.
Behind this situation lie so-called naming rights agreements, through which a company acquires the right to associate its brand with the name of a stadium for a specific period of time in exchange for financial compensation. These contracts are a major source of revenue for stadium owners and, at the same time, a powerful branding tool for sponsoring companies, which aim to ensure that the public immediately associates the stadium with their brand.
In the recent competition, the event organizers required that the use of those brands be omitted and that neutral terms be used instead.
This establishes a framework in which industrial property rights, existing naming rights agreements, the 2026 World Cup sponsorship program, and the international broadcasts of a global sporting event coexist.
The organization is requiring the stadiums selected to host the matches to change their names to prevent brands that are not sponsors of the event from appearing to be officially associated with the tournament.
The World Cup has a sponsorship program based on the granting of exclusive rights for commercial exploitation of certain categories of products and services. This exclusivity is one of the main assets of sports sponsorship, since those who become official sponsors seek not only to gain visibility during the event but also to prevent competitors or third parties from benefiting from its media exposure without having borne the cost of that investment.
For this reason, organizers enforce “clean site” policies. Under these guidelines, areas associated with the competition must be free of logos and advertising elements not included in the official sponsorship program. This requirement may apply to indoor advertising, signage, building facades, advertising displays visible from the stands, press areas, and, in some cases, the stadium’s name itself.
The goal is not to permanently remove the commercial branding or to question the validity of the naming rights agreements, but rather to temporarily suspend their visibility while the stadium is integrated into the tournament’s official environment. This preserves the commercial exclusivity agreed upon with the official sponsors and prevents third parties from gaining an indirect association with the competition.
The connection lies in the coexistence of different trademark rights and in the use of distinctive signs at an event subject to a regime of commercial exclusivity.
Industrial property rights protect trademarks, trade names, and distinctive signs that identify the commercial origin of products or services. At a World Cup, the official trademarks of the competition, the trademarks of authorized sponsors, licensing rights, and naming rights agreements that commercially identify the stadiums all come together.
A conflict arises when a brand that is not part of the group of official sponsors gains visibility within the event’s perimeter. This exposure takes on special value due to the international distribution of broadcasts, photographs, and informational and digital content related to the tournament, which can lead the public to perceive a commercial connection with the competition.
However, this presence does not generally constitute unauthorized use of the trademark, but rather the legitimate exercise of a naming rights agreement previously entered into with the venue’s owner or operator. The challenge lies in reconciling that contract with the obligations assumed by the venue toward the organizer and with the exclusive rights granted to official sponsors.
From a branding perspective, naming rights agreements aim to establish a stable association between a brand and a sports venue. This continuity helps the public spontaneously associate the stadium with the sponsoring brand and is one of the main factors that justify the investment made.
Therefore, successive name changes or the temporary use of neutral names during major competitions do not weaken the trademark in a legal sense nor do they affect the validity of trademark rights; however, they may reduce the effectiveness of the distinctive and promotional functions that these agreements seek to achieve, by making it more difficult for consumers to maintain an immediate and stable association between the stadium and the sponsoring brand.
The case of Atlanta shows that “clean site” policies can run into practical limits.
Mercedes-Benz Stadium, the home of the Atlanta Falcons and Atlanta United, is one of the most telling examples. During the World Cup, it has been referred to as Atlanta Stadium, following a practice already implemented during Euro 2024, when stadiums such as the Allianz Arena were temporarily renamed the Munich Football Arena.
However, the Mercedes-Benz emblem integrated into the roof of the venue poses an additional challenge. Since it is part of the structural design of the retractable roof, removing or covering it is not comparable to removing a conventional advertising sign, as it could compromise the integrity of the structure or incur disproportionate costs.
This scenario illustrates that the requirements stemming from the “clean site” policy reach their limit when the brand is an inseparable part of the stadium’s infrastructure itself.
The solution, therefore, has not been to remove the distinctive mark, but rather to adopt balanced solutions through negotiation between the parties: retaining the architectural element, limiting its visibility in broadcasts, and avoiding any additional use that might suggest a commercial association with the competition
Intellectual property isn't just at stake in the stadium—it's also at stake in the digital realm.
The use of terms such as FIFA, World Cup, Copa Mundial, or other official names of the tournament may pose risks when used for commercial purposes. A company may report on, comment on, or make descriptive references to the event within certain limits. Although companies may report on, comment on, or make purely descriptive references to the event, the problem arises when those signs are used to promote products or services, attract traffic, or suggest an official connection to the competition that does not actually exist.
For this reason, companies that are not part of the official sponsorship program should exercise extreme caution in their campaigns during the World Cup.
The risk is not limited to the use of official logos; it may also arise from the use of phrases, colors, symbols, images of the trophy, references to host cities, or combinations of elements that, when considered together, are likely to convey to consumers a commercial association with the tournament.
Ultimately, the legal risk does not depend solely on the use of a registered trademark, but rather on whether the campaign as a whole could mislead the public into believing that there is a commercial relationship, sponsorship, or authorization by the World Cup organizing committee.
The controversy surrounding the 2026 World Cup stadiums demonstrates that intellectual property requires the coordination of interests that, while legitimate, may conflict: naming rights contracts, the rights of official sponsors, and the commercial rules imposed by the organizers of major sporting events.
This scenario highlights that brand management at major sporting events requires striking a balance between equally legitimate commercial rights. Organizers must preserve the exclusivity acquired by their official sponsors, while stadium owners and sponsors linked through naming rights agreements must be able to protect the economic value and identity built around their brands.
In this context, naming rights agreements must address potential conflicts from the outset, including the hosting of major international competitions, temporary name changes, and limitations arising from “clean site” policies. The key is not to eliminate certain rights in favor of others, but rather to establish contractual mechanisms that allow them to coexist and prevent either party from having the commercial value of its brand unjustifiably compromised. The key is to plan ahead. Reviewing contracts, identifying potential risks, and defining a clear brand usage strategy helps prevent conflicts and ensures a balanced coexistence among all the rights involved in an environment of maximum public exposure.
Alba María López
Associate Partner in the Legal, Business, and Contracts Department at Elzaburu
In a startup, a very significant portion of the project’s value is often concentrated in its intangible assets. Software, developed technology, algorithms, databases, interfaces, the brand, designs, digital content, and internal know-how frequently constitute the main foundation of the business, determine its scalability, and play a central role in any investment, financing, or transfer process. The more clearly defined its legal status is, the stronger the project will be, and the better positioned the company will be to exploit, defend, and maximize the value of those assets.
From this perspective, the shareholders’ agreement plays an essential role. In addition to governing the relationship among founders, decision-making, and exit mechanisms, this document sets forth how intangible assets are incorporated into the project, who should hold ownership of them, how they are protected, and what happens to them in situations that are particularly critical to the startup’s survival. When these issues are properly resolved from the outset, the project’s legal certainty is strengthened, the risk of conflict among partners is reduced, and it becomes easier to attract third parties interested in financing or acquiring the company.
For this reason, in startups whose value depends, in whole or in part, on intellectual or industrial property assets, it is advisable for the shareholders’ agreement to include certain specific provisions. Among these, there are five clauses that are particularly relevant.
One of the first issues that should be resolved is which pre-existing intangible assets each partner contributes to the project and under what terms the company may use or exploit them. In practice, it is common for one or more founders to have previously developed software, prototypes, designs, trademarks, technical documentation, content, or databases that ultimately become part of the startup’s operations. If these assets are to underpin the business, the partners’ agreement should acknowledge this fact and provide for the obligation to properly formalize their assignment, licensing, or transfer to the company, with the necessary precision regarding their purpose and scope. The absence of such a provision may leave the company exploiting an essential asset without a sufficiently clear legal title, which weakens its position, complicates investment processes, and may allow the founding partner to impose conditions on or dispute its future use.
When the project involves industrial property rights eligible for registration—particularly trademarks, designs, or patents—the shareholders’ agreement should expressly provide for the obligation to take the necessary steps to ensure that the registered ownership is correctly reflected in the company’s name, provided that this is the agreed-upon legal structure for the project’s operation. This issue has immediate practical relevance, as investors, lenders, potential acquirers, or strategic partners typically scrutinize the registration status of the assets that underpin the business. If the startup exploits a trademark, design, or patent whose registered ownership is in the name of a partner or a third party, a discrepancy arises between the economic reality of the project and its formal legal basis. This situation can affect the asset’s soundness, increase the perceived risk during due diligence, and hinder investment, financing, or transfer transactions.
In many startups, a very valuable part of the project lies in the technical, commercial, or organizational knowledge generated and accumulated internally. Procedures, functional architecture, development methodologies, strategic information, product plans, operational parameters, customer information, or internal operating criteria can have considerable competitive value and, in certain cases, meet the requirements for protection as a trade secret.
For this reason, it is particularly advisable for the shareholders’ agreement to include a specific clause aimed at strengthening the protection of this information—not only through clear confidentiality obligations and restrictions on access and use, but also by providing for the implementation of internal measures to protect trade secrets that allow the startup to identify, organize, and preserve its strategic information. Failure to include such a provision poses a significant risk to the company, as the uncontrolled circulation of critical knowledge among partners, former partners, or collaborators can compromise its confidentiality, undermine its exclusive use, and hinder its subsequent protection.
The departure of a partner is one of the most sensitive situations a startup can face, especially when that partner has played a significant role in the development of the technology, content, or other distinctive elements of the project. For this reason, the partnership agreement should expressly provide that the intangible assets incorporated into the business, as well as the exploitation rights necessary for its continuity, remain within the company in accordance with the previously agreed-upon ownership or assignment terms. It is also advisable to clearly regulate the restrictions applicable to the departing partner regarding the use, reuse, or exploitation of developments already integrated into the business project. The omission of this clause may give rise to claims regarding software, interfaces, creative materials, or technical solutions developed during the project’s lifespan, with a consequent impact on the company’s operational continuity and its ability to close corporate transactions at particularly sensitive times.
From the early stages, many startups turn to freelance developers, design studios, agencies, technology consultants, or other external partners to advance the product’s development or the project’s visual and functional identity. Precisely for this reason, the partnership agreement should expressly provide that any development commissioned by the company must be accompanied by the corresponding assignment or transfer of intellectual or industrial property rights to the startup, on terms appropriate to the nature and scope of the commission.
The absence of such provisions often results in significant weaknesses in the project’s rights chain. Contracts with third parties are frequently documented incompletely or contain insufficient clauses, with the result that assets essential to the product fall outside the company’s legal scope.
Including these five clauses ensures a solid alignment between the project’s economic value and its legal structure, providing clarity on the ownership and operation of the assets that underpin the business, reducing contingencies in investment or due diligence processes, and helping to prevent conflicts among partners regarding some of the startup’s most valuable assets. When the project is based on technology, a brand, design, or proprietary knowledge, the partners’ agreement should reflect this reality with the same rigor with which it regulates the capital structure, decision-making, or exit mechanisms, since the proper management of intellectual and industrial property is essential to protect the business, facilitate its financing, and ensure the legally sound exploitation of its intangible assets.
Santiago Chamochín, Attorney in the Legal, Business, and Contracts Department at ELZABURU
Over the years, co-branding has established itself as one of the most widely used marketing strategies among companies. Through this approach, many brands are able to position themselves in the market and gain consumer recognition of their existence.
In this article, we delve into the secrets of co-branding, revealing everything you need to know to launch a product or service with two or more brands that come together to create something unique and groundbreaking. Discover the keys to making the most of this approach that’s revolutionizing the market, and learn the essential factors you should consider before embarking on a successful collaboration.
From a legal perspective, co-branding cannot be viewed solely as a marketing or communications initiative, since behind every collaboration between brands lies a complex web of industrial and intellectual property rights, contractual obligations, and legal risks that should be identified and properly addressed from the outset in order to avoid potential conflicts in the future.
As a starting point, it is essential to understand what co-branding is. It is a temporary strategic alliance in which two or more companies work together and integrate their brands to develop and launch a shared product, service, or campaign. This collaboration is based on creating a joint offering that aligns with the essence of each brand, while each brand retains its own identity. It is not simply a matter of placing two brands side by side, but rather of developing a shared proposition that leverages and enhances the strengths of each.
The growing prevalence of this strategy can be seen in numerous collaborations, such as the one that recently took place in the world of the Bridgerton series, which has led to various co-branding initiatives through agreements with brands from different sectors. Specifically, these include the launch of limited-edition personal care products (Dove), jewelry collections inspired by the series (Pandora), themed food products (Jeni’s Ice Cream), and capsule collections in the cosmetics sector (NYX Cosmetics). These types of initiatives reflect the commercial scope of co-branding and highlight the need to analyze its legal implications.
In practice, this strategy has given rise to various forms of co-branding, depending on how and for what purpose the brands involved are used:
It occurs when a brand incorporates a component, material, or technology from another brand into its own product—which serves as a guarantee of quality or innovation—in order to add technical value to the product or service. A clear example of this type of co-branding is the collaboration between Milka and Oreo, in which Oreo cookies are incorporated as the main ingredient in Milka chocolate bars.
It involves the joint use of brands for communication or promotional activities, without necessarily being integrated into a common product or service. It typically takes the form of temporary collaborations aimed at advertising campaigns or joint marketing initiatives to increase visibility and sales in the short term. An example of communication co-branding would be McDonald’s and Coca-Cola; these brands have carried out many joint advertising campaigns over the decades. In these campaigns, they have worked together to promote the experience of enjoying a meal at McDonald’s with a Coca-Cola. Although they did not create a product, their collaboration on advertising and promotions has been consistent, featuring both logos in ads and in-restaurant promotions. Another example is the collaboration between Samsung and Iberia in the “Welcome Aboard Galaxy Note 8”campaign, which rewarded the loyalty and trust of Spanish passengers traveling on an Iberia flight with a Samsung Galaxy Note 8 smartphone .
It occurs when companies collaborate to develop innovative products or services—or special editions—that incorporate a specific design, technology, or other creative elements; the goal is to create differentiation and added value through innovation and creativity. In this case, the brands are used together on the same product or service, typically in a visible way on the product itself or in its commercial presentation. The collaboration between Lego and Ferrari to create a series of Lego sets that allowed users to build scale models of Ferrari cars, such as the Ferrari F40, and the collaboration between Disney Pixar and Waze—in which iconic movie voices were used to guide users, creating an immersive experience and joint promotion—are clear examples of this type of co-branding.
From a legal standpoint, co-branding should be classified as an atypical business collaboration agreement, as it is not expressly regulated in the Civil Code or in commercial law. Its validity is based on the principle of the parties’ freedom of contract enshrined in Article 1255 of the Civil Code, provided that such an agreement is not contrary to the law, public morality, or public order.
However, this type of contract includes elements typical of other legal arrangements, particularly trademark license agreements, but also collaboration agreements. Unlike a trademark license agreement, in which one company grants another company the right to use its trademark in exchange for financial compensation, co-branding involves active collaboration between two or more brands in the design, production, and/or promotion of a product or service, with the aim of creating added value and offering a unique experience to the consumer. In the context of collaboration agreements, co-branding is a type of collaboration characterized by the fact that companies jointly use their brands on the same product, service, or advertising campaign.
Co-branding can be formalized through a joint venture or a cross-licensing agreement. In the first case, the companies form a new entity to develop and market the joint product or service, temporarily licensing their respective trademarks to that entity until the collaboration ends. In contrast, under a cross-licensing agreement, no new company is created; instead, each company grants the other a license to use its trademark exclusively for the joint project. Once the co-branding arrangement ends, the licenses expire and the rights revert to their respective owners.
Before launching a co-branding strategy, companies must carefully analyze the legal implications that may arise from the joint use of their trademarks. Beyond the commercial benefits that may be derived, this arrangement requires precise contractual provisions to prevent risks, avoid conflicts, and ensure the consistent and secure exercise of the relevant rights.
In this context, it is crucial to identify some key aspects that must be considered before launching a product, service, or advertising campaign as part of a co-branding strategy, namely:
If there are doubts regarding ownership or incomplete licenses, the collaboration may be subject to disputes with third parties or even infringement claims brought by them.
A license agreement of this type must:
On the other hand, in this type of license, it is very important to set forth detailed rules governing the use of the parties’ trademarks. In this context, many companies have brand manuals or corporate identity manuals that establish guidelines for the proper use of their distinctive signs and ensure consistent use of the brand across all media and communication channels.
In particular, when it comes to this type of agreement, it is important to pay attention to several aspects:
Ultimately, co-branding is aneffective strategy for strengthening brand recognition and positioning among consumers by combining the brands’ values and reputations into a joint offering. However, its success depends not only on creativity or commercial impact, but also on the collaboration being structured through a carefully designed agreement, tailored to the specific needs of the parties and precisely regulating the rights, obligations, and limitations regarding the use of the brands.
Arancha Máiz, Attorney in the Legal, Business, and Contracts Department.
Influencer marketing has evolved from a trend into a well-established tool within brands’ digital strategies. In 2023, online investment in this area grew by 23.9%, prompting a thorough review of the applicable regulatory framework. In this context, the new Code of Conduct for Advertising Through Influencers represents a significant update from previous versions, incorporating both obligations and recommendations for companies, agencies, and influencers.
The new Code expands its scope to include new stakeholders, such as “users of particular significance” as defined in the General Law on Audiovisual Communication, and incorporates requirements stemming from the Digital Services Regulation. In addition, it incorporates the interpretive doctrine established by the Advertising Board over the past five years, which provides greater clarity and legal certainty to the sector.
Its main objective is to ensure that advertising by influencers is identifiable, transparent, and responsible, thereby preventing disguised advertising. Unlike the previous version, it eliminates the requirement for editorial control as a condition for classifying content as advertising. Now, only two elements need to be present: the content must have a clear advertising purpose, and it must be disseminated as part of a collaboration involving some form of compensation.
Companies that partner with influencers should pay special attention to two key aspects:
Although the legal framework is uniform, its practical application varies by social media platform. The Code recommends using the specific features offered by platforms to indicate that content is advertising. For example:
However, these functions are not uniform, which leads to differences in how the requirements are met. It is essential that the disclosure be clear, immediately apparent, and appear at the beginning of the message, ensuring that it is not hidden among hashtags or requires additional action on the user’s part to be seen.
Following the entry into force of the new Code, it is essential that agreements with influencers include clear provisions to ensure compliance with legal and self-regulatory obligations:
These clauses not only reduce legal risks, but also protect the brand's reputation and enhance transparency for consumers.
The Code clearly and fairly defines the division of liability between the company and the influencer. All parties may be held liable in the event of a breach, although the company may be exempt from liability if it demonstrates that the violation was a one-time, clear-cut action by the influencer that contravened specific instructions.
When advertising content is disseminated solely at the influencer’s initiative, without any involvement or intervention by the company, responsibility lies solely with the influencer or their agents.
This new framework provides greater legal certainty for companies by precisely defining the circumstances under which they may be held liable. However, it requires rigorous oversight of partnerships to mitigate risks.
Cristina Espín, Senior Associate in the Legal Department (Business and Contracts) 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.
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.
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.”
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.
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.
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
The U.S. Court of Appeals for the Seventh Circuit recently issued a ruling in a case involving the misappropriation of trade secrets under the Defend Trade Secrets Act (DTSA), which will have implications for transatlantic trade relations.
The case involves the U.S. company Motorola, which sued the Chinese company Hytera, alleging that Hytera misappropriated trade secrets through illegal means to develop products nearly identical to Motorola's.
Much of the misappropriation of these trade secrets took place between 2010 and 2014, but after the DTSA went into effect in 2017, Motorola filed a lawsuit against Hytera for that misappropriation, seeking substantial damages.
So far, this case is not very different from other cases that have been and continue to be brought in the United States regarding trade secrets. But what is significant about this case is that the court has awarded damages not only for those incurred in the U.S., but also—and primarily—for infringing activities carried out outside the country.
The court finds that there is a possibility of extraterritorial application of the DTSA, which extends its legal reach beyond U.S. borders. It interprets the statute as leaving this possibility open in several scenarios, such as “acts in furtherance,” which are acts that contribute to the commission of other unlawful acts and are considered a single offense.
Once an “act in furtherance” has been performed in the United States, all acts related to and directed toward the same purpose—even if performed outside the United States—have an effect within that territory and give rise to the jurisdiction of its courts.
This ruling is crucial for Spanish companies that do business with U.S. companies or operate in global markets. From now on, there is a risk that, in the event of disputes over trade secrets or business secrets, U.S. companies may prefer to litigate in their own courts. By arguing that there is a connection between activities carried out both inside and outside the United States, they could attempt to extend their jurisdiction globally.
The United States has a robust and sophisticated legal framework for the protection of trade secrets and business secrets, supported by extensive case law and regulations at both the state and federal levels. Therefore, facing litigation in a U.S. court is not a particularly desirable situation for a Spanish company.
Is the ruling appropriate? To reach a conclusion on this matter, one must consider the circumstances of the case; however, if there is a breach of trade secrets with global implications, is it necessary to travel to different countries and file lawsuits in as many courts to seek a declaration of infringement and claim damages? It may not be necessary; the court finds sufficient grounds in the text of the DTSA to establish jurisdiction.
Will this be an isolated case? I don't think so. Once the extraterritorial effect of the DTSA is established, there will be new cases, as U.S. companies will find it more appealing to play on their home turf than to have to venture onto other fields. In fact, there are already law firms recommending that this possibility be considered.
Will this affect Spanish companies? Without a doubt—you don’t have to be Chinese for an American company to sue you. This will happen when the same circumstances as in the Motorola case arise, but even in less serious and blatant situations. The ruling sets a precedent that will extend to other cases; reading it gives a glimpse of this possible future.
For Spanish companies, this ruling underscores the importance of handling any trade secrets or business secrets received from international partners—especially U.S. companies—with the utmost care. Even if the acquisition of these secrets is legal, mishandling or improper management could result in serious legal consequences under the DTSA.
The best defense is prevention: implement a robust trade secret management plan and follow it meticulously. This approach not only protects the company from potential litigation but also strengthens its position in the global market.
With the recent ruling in the Motorola v. Hytera case, the legal landscape is changing. Companies must be prepared for an environment in which the protection of tradesecrets and business secrets requires greater attention and care than ever before. Adapting to these new legal realities will be key to avoiding disputes and maintaining healthy and productive business relationships on the international stage.
Javier Fernández-Lasquetty, Partner in the Business and Contracts Practice at ELZABURU
On October 19, 2022, Law 18/2022 of September 28 on the Creation and Growth of Businesses entered into force following its approval by the Spanish Parliament. Its main objectives are as follows:
To achieve these objectives, the legislation introduces a series of new provisions, which are detailed below:
The legal minimum of 3,000 euros required to form a limited liability company is now 1 euro, but the following must be taken into account:
This first measure aims to promote the creation of businesses by lowering their incorporation costs (both registration and notary fees), expanding the options available to founding partners regarding share capital in accordance with their needs and preferences, and reducing any incentives to establish businesses in other countries with lower incorporation costs.
In addition, reforms are being introduced to facilitate and promote the formation of companies in a fast, streamlined, and electronic manner through the Information Center and Business Creation Network (CIRCE) and by using the Single Electronic Document (DUE), thereby reducing registration and notary fees.
Excessive payment delays are common in our country, with small businesses having the highest rates of late payments and defaults because they lack the economic and financial strength of large companies.
To foster a change in corporate culture, the government will first establish the National Delinquency Observatory, which will be responsible for monitoring trends in payment data and promoting best practices.
Second, since electronic invoicing is a useful tool for reducing transaction costs and facilitating access to information on payment terms, its scope of use will be expanded; as a result, it will be mandatory for all companies and self-employed individuals to issue and send electronic invoices in their business transactions.
It is important to note that, today and for several years now, the use of electronic invoices has been widespread among businesses and individuals. In fact, since January 2015, electronic invoices (e-invoices) have been mandatory for all businesses that have commercial relationships with public administrations and whose transactions exceed 5,000 euros.
Consequently, the legislature’s intent is to make its use mandatory in all commercial transactions between companies and self-employed individuals in our country, with a transition period to be established by regulation issued by the Ministries of Economic Affairs and Digital Transformation and of Finance and Public Administration, with the aim of setting forth the technical and information requirements, the minimum interoperability requirements, and the security, control, and standardization requirements for the devices and computer systems that generate the documents. The deadline for its approval will be six months from the publication of the Law in the Official State Gazette (BOE), that is, until March 29, 2023.
In this regard, one year after its adoption, its use will be mandatory for business owners and professionals with annual revenue exceeding eight million euros, while two years after its adoption, it will be mandatory for all other business owners and professionals.
Third, grant programs are being proposed that will enable the widespread acquisition and implementation of digitization solutions (e.g., the adoption of electronic invoicing), notably the Digital Toolkit Program, which has been allocated more than 3,000 million euros in grants.
Finally, an average payment period (60 days, as established in Article 4.3 of Law 3/2004, which establishes measures to combat late payment in commercial transactions) is included as a requirement for accessing grants and as grounds for termination and a criminal offense in public procurement.
Therefore, companies and self-employed individuals seeking grants exceeding 30,000 euros will only be eligible for such assistance if they meet the payment deadlines, which are 60 days for business-to-business transactions; compliance must be demonstrated by submitting a sworn statement.
A new legal framework is being introduced for this type of platform, which seeks to raise funds from a variety of sources for the purpose of financing a specific project, based on Regulation (EU) 2020/1503 of the European Parliament and of the Council of October 7, 2020, on European providers of crowdfunding services for businesses.
The main change introduced by the law is that these types of organizations will be able to provide their services freely without having to obtain a separate authorization in each Member State.
In other words, these platforms will have to apply to the competent authority of the Member State in which they are established for authorization to operate as a crowdfunding service provider. They will then be required to notify the European Securities and Markets Authority (ESMA) so that they may operate throughout the European Union.
In addition, some of the main changes introduced by the regulation regarding the obligations of these types of operators are as follows:
With the entry into force of the aforementioned European Regulation and, consequently, of this Act, that limit is raised to 5,000,000 euros, provided that investments exceeding that amount will require the issuance of a specific prospectus, the requirements for which are succinctly set forth in Regulation 2017/1129 on the prospectus to be published in the event of a public offering or admission to trading of securities on a regulated market
On this point, a series of reforms is being introduced that aim to promote and improve collective investment and venture capital in Spain—a sector that needs regulations enabling it to contribute even more to overall economic activity and to protect investors, particularly individual investors.
By way of example only—and this list is not exhaustive—we highlight the following:
In other words, the range of options for closed-end funds is being expanded to include structures that have a long track record in other countries in our region.
The legislation expands on cooperation and mutual trust among the various public administrations and strengthens the channels through which companies can file complaints when they believe that public administrations are not adhering to the principles of sound economic regulation.
In addition, the list of economic activities exempt from licensing requirements is being expanded, helping to reduce bureaucracy. This list is incorporated into the national list of activities that have been deemed harmless by at least one Autonomous Community.
To this end, numerous articles of Law 20/2013, on Guaranteeing Market Unity, are amended, as well as Article 7 of Law 29/1998, Regulating Contentious-Administrative Jurisdiction, and Article 8 of Law 12/2012 on Urgent Measures to Liberalize Trade and Certain Services.
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In conclusion, and pending the adoption of implementing regulations, this law aims to promote the creation of businesses and facilitate their growth and expansion, viewing this as an essential step toward business growth and as one of the most important reforms of the government’s Recovery, Transformation, and Resilience Plan, all with the goal of increasing productivity, improving job quality, and fostering the internationalization of the Spanish economy.
Alberto López Cazalilla, attorney at ELZABURU
Bibliography
The Business Creation and Growth Act, which has just been approved by the Congress of Deputies and will be sent to the Senate for consideration, has the following main objectives:
To achieve these objectives, the legislation introduces a series of new provisions, which are detailed below.
Incorporation and Digitization of Companies
The legal minimum of 3,000 euros required to form a limited liability company is now1 euro, but the following must be taken into account:
This first measure aims to promote the creation of businesses by lowering their incorporation costs (both registration and notary fees), expanding the options available to founding partners regarding share capital in accordance with their needs and preferences, and reducing any incentives to establish businesses in other countries with lower incorporation costs.
In addition, reforms are being introduced to facilitate and promote the formation of companies in afast, streamlined, and electronic manner through the Information Center and Business Creation Network (CIRCE) and by using the Single Electronic Document (DUE), thereby reducing registration and notary fees.
Measures to Combat Commercial Delinquency
Excessive payment delays are common in our country, with small businesses having the highest rates of late payments and defaults because they lack the economic and financial strength of large companies.
To foster a change in corporate culture, the government will first establish the NationalDelinquency Observatory, which will be responsible for monitoring trends in payment data and promoting best practices.
Second, sinceelectronic invoicing is a useful tool for reducing transaction costs and facilitating access to information on payment terms, its scope of use will be expanded; as a result, it will be mandatory for all companies and self-employed individuals to issue and send electronic invoices in their business transactions.
It is important to note that, today and for several years now, the use of electronic invoices has been widespread among businesses and individuals. In fact, since January 2015, electronic invoices (e-invoices) have been mandatory for all businesses that have commercial relationships with public administrations and whose transactions exceed 5,000 euros.
Consequently, the legislature’s intent is to make its use mandatory inallcommercial transactions between companies and self-employed individuals in our country, with a 3-year transition period for the implementation of electronic invoicing for smaller companies.
Third, grant programs are being proposed to facilitate the acquisition and implementation of digitalization solutions, notably theDigital ToolkitProgram, which has been allocated more than 3,000 million euros in grants.
Finally, an average payment period (60 days, as establishedin Article 4.3 of Law 3/2004, which establishes measures to combat late payment in commercial transactions) is included as a requirement for accessinggrantsand as grounds for termination and a criminal offense in public procurement.
Therefore, companies and self-employed individuals seeking grants exceeding 30,000 euros will only be eligible for such assistance if they meet the payment deadlines, which are 60 days for business-to-business transactions; compliance must be demonstrated by submitting a sworn statement.
Crowdfunding platforms
A new legal framework is being introduced for this type of platform, which seeks to raise funds from a variety of sources for the purpose of financing a specific project, based on Regulation (EU) 2020/1503 of the European Parliament and of the Council of October 7, 2020, on European providers of crowdfunding services for businesses.
The main change introduced by the law is that these types of organizations will be able to provide their services freely without having to obtain a separate authorization in each Member State.
In other words, these platforms will have to apply to the competent authority of the Member State in which they are established for authorization to operate as a crowdfunding service provider. They will then be required to notify the European Securities and Markets Authority (ESMA) so that they may operate throughout the European Union.
In addition, some of the main changes introduced by the regulation regarding the obligations of these types of operators are as follows:
It is important to note that this concept of “wealth” is an ambiguous term that does not actually specify its true scope, so it will need to be clarified before the law takes effect. Even so, we understand that it is similar to the concept of “net worth.” There is no problem with investing beyond these limits, but investors will be warned of the risks.
Collective Investment and Venture Capital
On this point, a series of reforms is being introduced that aim to promote and improve collective investment and venture capital in Spain—a sector that needs regulations enabling it to contribute even more to overall economic activity and to protect investors, particularly individual investors.
By way of example only—and this list is not exhaustive—we highlight the following:
In other words, the range of options for closed-end funds is being expanded to include structures that have a long track record in other countries in our region.
Economic Activities
The legislation expands on cooperation and mutual trust among the various public administrations and strengthens the channels through which companies can file complaints when they believe that public administrations are not adhering to the principles of sound economic regulation.
In addition, thelist of economic activities exemptfrom licensing requirements is being expanded, helping to reduce bureaucracy. Activities that have been deemed harmless by at least one autonomous community are being added to the national list.
To this end, numerous articles of Law 20/2013, on Guaranteeing Market Unity, are amended, as well as Article 7 of Law 29/1998, Regulating Contentious-Administrative Jurisdiction, and Article 8 of Law 12/2012 on Urgent Measures to Liberalize Trade and Certain Services.
In conclusion, it is important to note that the proposed bill must be sent to the Senate and then back to Parliament, so adjustments and conceptual clarifications can still be made regarding aspects that are not yet entirely clear in the current version.
In any case, this law aims to promote the creation of businesses and facilitate their growth and expansion, viewing this as an essential step toward business growth and as one of the most important reforms of the government’s Recovery, Transformation, and Resilience Plan, all with the goal of increasing productivity, improving job quality, and fostering internationalization.
Bibliography
AUTHOR: Jorge Parada
The European Union Intellectual Property Office (EUIPO) and the European Commission (EC), with the aim of boosting the competitiveness of SMEs in the current context of the COVID-19 pandemic, have created the Ideas Powered for Business Fund. This is a grant program with a budget of up to 20 million euros, created to help SMEs obtain and develop their intellectual property rights.
This program will provide coverage at the national level (national offices), the regional level (Benelux Office), and the EU level (EUIPO).
Purpose of the grants:
The SME fund will co-finance two types of services:
Amount of the grants:
The maximum grant amount will be 1,500 euros per SME, and the co-financing percentages will be as follows:
| Type of action | Service Limits for SMEs | Co-financing Limit per Action | Maximum Grant Per SME |
| Service 1: Pre-diagnostic Service for IP | 1 pre-diagnostic service for IP | 75 % | 1.500 EUR |
| Service 2: DPI | 1 application for one or more trademarks and designs | 50 % |
Deadlines for submitting grant applications: The call for proposals will be open during different application periods, with the provisional schedule as follows:
| Deadline 1 | Deadline 2 | Deadline 3 | Round 4 | Deadline 5 | |
| Budget Available by Term | 4.000.000 | 4.000.000 | 4.000.000 | 4.000.000 | 4.000.000 |
| Start of the application period | January 11, 2021 | March 1, 2021 | May 1, 2021 | July 1, 2021 | September 1, 2021 |
| Deadline for submitting applications | January 31, 2021 | March 31, 2021 | May 31, 2021 | July 31, 2021 | September 30, 2021 |
| Applicants will receive written notification of the results and notification of grant decisions if awarded a grant | Feb. – Mar. 2021 | Apr. – May 2021 | June–July 2021 | Aug. – Sept. 2021 | Oct. – Nov. 2021 |
Applications received first will be given priority for the awarding of grants.
Eligible Recipients: To be eligible, applicants must be small and medium-sized enterprises (SMEs), as defined in EU Recommendation 2003/361, established in EU Member States.
Application Process: There are 3 steps to follow to complete the application:
Once submitted, you will receive an email confirming receipt of the payment request. The payment, subject to approval of the information and documentation submitted, will be made within one month, and beneficiaries will receive the corresponding notification by email.
This aid is incompatible with any other aid that may have been requested at the national or EU level for the same purpose.
Author: Manuel Mínguez
Find information about this and other grants on our website.