On July 8, 2004, the Spanish Law 20/2003 on Designs has come into force. The Spanish Patent and Trademark Office has already started receiving applications for national designs.
The law is the latest result of the harmonisation effected by Directive 98/71 and has finally substituted the regulations of the "Estatuto de la Propiedad Industrial" that still regulated this important Industrial Property right since 1930.
All the main requirements set out by the Directive have been implemented in the national regulation, and the resulting scenario is an IP right finally independent from aesthetic and artistic criteria, the protection of which is afforded because of the added value that it gives to the product in the marketplace.
The registration procedure starts with an application. The Spanish Office merely verifies ex officio that the application refers to a Design, as per the definition set out in the Law, and that the same is not contrary to public order and morality. An appeal can be filed against a negative decision of the Spanish Office on these grounds. If the formal examination is positive, the Design applied for is registered and published in the Official Gazette. With the date of publication starts a two month period for the filing of oppositions. Oppositions may be filed by any interested party on the grounds of lack of novelty, singular character and pre-existing rights.
It is important to mention the introduction in the Law of a "grace period", by virtue of which the disclosure of the design will not affect the validity of the same if it is applied for during the twelve months that follow the disclosure; further, the possibility of filing multiple applications, which are subjected to decreasing fees, as well as the possibility of postponing the publication of the registration for 30 months from the filing date (or the priority, if applicable).
The registration of the design confers on its owner the exclusive right to use it and prevent its unauthorised use. Means of use and limitations of this right are explicitly specified in the Law, which follows the content of the Directive literally.
In principle, the rights may be exercised from the date of publication of the registration. Nonetheless, before that date, the Design Law grants provisional protection to the applicant against third parties that have been previously notified of the filing of the application and of its content.
The Spanish Design coexists with the Community Design set out by Regulation 6/2002. The duration of protection will initially be 5 years and, following renewals, it extends up to a maximum of 25 years.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.