Intellectual Property 2026 Comparisons

Spain’s patent regime is governed mainly by Law 24/2015 on Patents. European and international instruments also apply: Spain is party to the EPC (European patents validated in Spain take effect under Spanish law where applicable) and the PCT; EU SPC rules apply for medicinal and plant protection products.

Patentable subject matter covers inventions “in all fields of technology” that are novel, involve an inventive step, and are industrially applicable. Biotechnological inventions, including isolated biological material, may be patented.

Exclusions include inventions contrary to public order or morality and specific biotech prohibitions (eg, human cloning, germline modification, commercial use of human embryos, and certain animal genetic modifications), as well as methods of surgical or therapeutic treatment and diagnostic methods performed on the human or animal body. Subject matter not regarded as an “invention as such” includes discoveries, scientific theories, mathematical methods, aesthetic creations, schemes and rules for mental acts, games or doing business, computer programs, and presentations of information.

Consequently, source code as such is excluded from patentability; however, a new software-related invention is not, provided it produces a technical effect and solves a technical problem beyond the mere interaction between the program and the computer. This applies to computer-implemented inventions, such as the control of a robotic system. The same reasoning applies to business methods: in general, they are excluded, but if they are novel worldwide, solve a technical problem, and are implemented on a computer, they may be eligible for patent protection.

AI-related inventions are not specifically excluded; they are assessed under the general criteria. Spain also provides utility models with a lower inventiveness threshold; processes, biological matter, and pharmaceutical substances/compositions are excluded.

Spain uses a full substantive examination system handled by the Spanish Patent and Trademark Office (OEPM) under Law 24/2015 and its Implementing Regulation (RD 316/2017). After filing and formalities, the OEPM issues a search report with written opinion; the application is published around 18 months from filing/priority. The applicant must request substantive examination within three months of the search report’s publication. If patentability is confirmed, the patent is granted and published; post-grant opposition is available for six months.

Indicative timelines commonly run roughly two to three years from filing to grant, subject to prosecution events.

Official fees are governed by the OEPM price order regime. As a practical budgetary estimate for a standard application through grant (filing, search, examination, publication; excluding attorney fees, translations, excess claims/classes, and office action costs), applicants typically incur approximately EUR1,200–2,000 in OEPM fees, plus annual renewal fees that increase each year over the 20-year term.

Representation before the OEPM is generally not mandatory, but applicants without residence or a registered address in an EU member state must act through a Spanish Industrial Property Agent.

Spain grants patentees the exclusive right to prevent, without consent, making, offering, placing on the market, using, importing or possessing a patented product, and using/offering a patented process.

Statutory limitations include private/non-commercial use, experimental use, the Bolar exemption for regulatory trials, and EEA exhaustion; special rules apply to biological material.

The patent term is 20 years from filing; effects run from publication of grant. Annual maintenance fees are due in advance (the filing fee covers the first two years). Missed annuities can be paid within six months with a 25%/50% surcharge; otherwise, the patent lapses, though limited post-grant regularisation may be available in defined cases.

Supplementary protection certificates (SPCs) are available for medicinal and plant protection products; a six-month pediatric extension may apply.

During the SPC term (not the basic patent term), the EU “manufacturing waiver” allows EU-based makers to: (i) manufacture for export to non-EU markets throughout the SPC; and (ii) manufacture for EU “day one” launch by stockpiling solely in the SPC’s final six months.

Spain recognises the inventor (or successors in title) as the initial owner of the right to apply for and own a patent; joint ownership is permitted, and the inventor must be designated.

Employee inventions are classified into: (i) employer’s inventions (made in execution of duties or specific assignments), which belong to the employer; (ii) employee’s free inventions (unrelated to employment and without employer resources), which belong to the employee; and (iii) “assumable” inventions (related to the employee’s activity or made using employer means), which the employer may claim (ownership or a right of use) against fair compensation. Statutory notification and evidentiary rules apply; the regime extends to service relationships.

For public research bodies and universities, ownership and transfer of IP arising from research are governed by their statutes under the Science Law framework, often with researcher revenue sharing mechanisms.

Assignments, licences, pledges, and other inter vivos acts must be in writing to be valid. To be effective against third parties in good faith, they must be recorded in the Patent Register (OEPM).

Direct infringement covers, without consent, making, offering, placing on the market, using, importing or possessing the patented product, and using or offering a patented process and the products obtained directly by it. Indirect (contributory) infringement covers supplying or offering to supply unauthorised parties with means relating to an essential element of the invention, knowing that they are suitable for putting the invention into effect.

Scope of protection is determined by the claims, interpreted in light of the description and drawings; protection extends to equivalents.

Statutory defences and limitations include private/non-commercial use, experimental use, the Bolar exemption for studies and trials needed for marketing authorisations, use on board foreign means of transport temporarily in Spain, exhaustion within the EEA, and certain uses for biological material.

A prior user right protects those who, in good faith, were already using or had made effective and serious preparations to use the invention in Spain before the filing/priority date.

Compulsory licences are available on specified grounds (insufficiency of exploitation, dependence, and public interest), subject to conditions and remuneration.

Courts also apply proportionality; FRAND issues typically arise under general contract and competition law alongside patent rules.

Spain conducts civil patent cases before specialised Commercial Courts designated by the General Council of the Judiciary, with nationwide competence (eg, Madrid, Barcelona, and Valencia). Defendants typically have two months to file the statement of defence and any counterclaim. Validity can be challenged by defence or counterclaim; patents may limit claims during litigation, and subsequent revocation/limitation decisions have retroactive effect. Post-grant oppositions before the Spanish Patent and Trademark Office may run in parallel, and the Office informs the court accordingly.

Interim measures are available, including ex parte where urgency or risk of frustration justifies it, under the Spanish Civil Procedure Act and Law 24/2015. Protective letters are possible. Typical first instance timelines vary by forum and case complexity; interim measures can be decided quickly, while merits cases often take many months.

Final remedies include prohibitory injunctions and cessation, seizure, recall, removal or destruction of infringing goods, publication of the judgment, disclosure of origin and distribution channels, and damages. Damages may be quantified by lost profits or a reasonable royalty, supported by evidentiary disclosure tools.

Attorneys’ fees and costs are recoverable under the “loser pays” principle, subject to statutory limits and the court’s proportionality assessment.

In Spain, trade mark protection is primarily governed by the Spanish Trade Mark Act (Law 17/2001), which was updated in 2018 to implement Directive (EU) 2015/2436. The enforcement of trade mark rights is further supported by the Civil Procedure Act and the Criminal Code, which provide the legal framework for civil and criminal actions against infringement.

A wide variety of signs can be protected, provided they meet the necessary requirements. These include words, letters, numbers, three-dimensional shapes, colours, sounds and combinations of these elements. While traditional marks such as word and figurative marks remain the most common, non-traditional marks (such as motion marks, multimedia marks or pattern marks) are increasingly accepted, provided they meet the required representation criteria.

Unregistered trade marks do not enjoy full protection in Spain, as rights are primarily acquired through registration. However, well-known or reputed marks may be protected even if not registered, particularly where third-party use may lead to confusion or take unfair advantage of their reputation.

In Spain, the key requirements for trade mark protection are distinctiveness and the ability of the sign to be represented in the Trade Mark Register. A sign must be capable of distinguishing the goods or services of one undertaking from those of others, as this constitutes the essential function of a trade mark. Signs that are descriptive, generic or customary in the relevant sector are generally not registrable unless they have acquired distinctiveness through use.

Acquired distinctiveness (also known as secondary meaning), arises when a sign that was originally non-distinctive becomes associated by the relevant public with a specific commercial origin. This is typically demonstrated through evidence such as duration and intensity of use, market share, advertising investments and consumer recognition.

Reputed trade marks benefit from enhanced protection even if not registered in Spain. In line with the Spanish Trade Mark Act, protection extends beyond identical or similar goods or services where the use of a later sign may take unfair advantage of, or be detrimental to, the distinctive character or reputation of the earlier mark.

Trade mark registration has a constitutive effect, meaning that it confers exclusive rights on the trade mark owner upon registration. On the one hand, it grants a positive right to use the sign exclusively in the course of trade. On the other hand, it provides a negative right to prevent third parties from using identical or similar signs without consent, including both direct acts of infringement and preparatory acts.

Applications are filed before the Spanish Patent and Trade Mark Office (OEPM). The procedure includes a formal examination, publication for opposition purposes, during which third parties may file oppositions within two months from publication, and a substantive examination. In the absence of objections or oppositions, registration is typically granted within six to eight months.

The cost of filing a trade mark application includes official fees and professional fees, which may vary depending on the number of classes and the complexity of the case. By way of indication, official filing fees before the OEPM are approximately EUR125–150 for one class, with additional fees for each extra class. In this regard, multi-class applications are allowed, enabling applicants to seek protection for different goods and services within a single application, which can be more efficient from both a procedural and cost perspective.

Trade mark protection is granted for a period of ten years from the filing date and may be renewed indefinitely for successive ten-year periods. Renewal is subject to the payment of the corresponding official fees and must be requested within the six months preceding the expiry date. A grace period of six months is available after expiry, in cases where the mark has not been renewed in due time, subject to a surcharge.

Use of the trade mark is not required for registration, but it becomes essential for maintaining the rights. A mark must be put to actual use in Spain within five years following registration. This requires real use in the market, not merely symbolic, in relation to the goods or services for which the mark is registered, within the relevant territory, and in a manner that allows consumers to identify the commercial origin of those goods or services.

If the trade mark is not put to actual use within this period, or if such use is suspended for an uninterrupted period of five years, it may be subject to cancellation for non-use. This may result in the loss of rights in respect of all or part of the goods or services for which the mark is registered.

Registration confers on the trade mark owner the exclusive right to use the sign in the course of trade and to prevent third parties from using identical or similar signs for identical or similar goods or services where there is a likelihood of confusion. In particular, these rights include affixing the mark to goods or their packaging, placing goods or services on the market under the mark, and using it in advertising. Protection may also extend to cases where use of a later sign takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the earlier mark.

Trade mark rights are not absolute and are subject to certain limitations. The proprietor cannot prevent third parties from using, in the course of trade, their own name or address (where the third party is a natural person), or signs that lack distinctive character, or the mark, where necessary, to indicate the intended purpose of a product, such as accessories or spare parts, provided such use complies with honest commercial practices.

The principle of exhaustion also applies, meaning that the trade mark owner cannot oppose the use of the mark in relation to goods that have been previously placed on the market in the European Economic Area by the owner or with its consent.

Trade mark infringement occurs where a third party uses, without consent, an identical or similar sign in the course of trade for identical or similar goods or services, giving rise to a likelihood of confusion. In addition, infringement may arise where use of a sign takes unfair advantage of, or is detrimental to, the distinctive character or reputation of a reputed mark. Although “passing off” is not recognised as such under Spanish law, similar situations are addressed through unfair competition rules.

Trade mark disputes are heard by specialised commercial courts. In Spain, jurisdiction is attributed to specialised sections of the commercial courts in Alicante. The trade mark owner may bring infringement actions seeking, among others, cessation of use, removal from the market, destruction of infringing goods and damages. Injunctions, including preliminary measures, are also available to prevent ongoing or imminent infringement.

Criminal actions are available in cases of counterfeiting and serious infringement. In addition, customs authorities may intervene to detain suspected infringing goods at the border as part of anti-counterfeiting measures.

Copyright in Spain is governed primarily by the Spanish Intellectual Property Act (Texto Refundido de la Ley de Propiedad Intelectual, LPI), approved by Royal Legislative Decree No 1/1996 of 12 April and amended by Royal Decree-Law No 6/2022 of 29 March.

The scope of its protection covers all original literary, artistic or scientific creations expressed by any means or medium, whether tangible or intangible, currently known or that which may be invented in the future. These include, among others, books, articles, music compositions, audiovisual works, choreographies, paintings, photography, software, databases, and architectural works.

Industrial designs are generally protected under design law but may also receive copyright protection, if they meet the requirements.

The requirements for copyright protection are originality and expression. That is, the work must be the author’s own intellectual creation reflecting its free and creative choices. Although it does not require registration and its protection arises automatically upon creation, the work has to be expressed, by any means. Ideas alone are not protected, only their expression is.

The Court of Justice of the European Union (CJEU) has been working intensively to unify and harmonise the basic elements and concepts of the field, with perhaps the most significant development being the establishment of a uniform and autonomous interpretation of the term “protected work” within the context of copyright law. Thus, the well-known cases “Infopaq” of 2009, C-5/08; “Painer” of 2011, C-145/10; “Renckhoff” of 2018, C-161/17; “Levola” of 2018, C-310/17; and “Cofemel” of 2019, C-638/17, have established that the concept of a work requires the fulfilment of two cumulative requirements: on the one hand, the existence of an original object, in the sense that it constitutes an intellectual creation specific to its author, reflecting their personality through free and creative decisions; on the other hand, the existence of an object that can be identified with sufficient precision and objectivity, so that the scope of protection can be clearly determined, an interpretation recently reaffirmed in the “Cantemir” case of 2026, C-649/23.

Registration is not required, however, its highly recommended as it creates a presumption of ownership and facilitates and provides proof of authorship and date of creation.

Authorship is defined as the natural person that creates a literary, artistic or scientific work. Legal entities can be recognised as authors only in specific cases, although they may acquire rights by means of an assignment.

It will be considered a work of joint authorship (or “obra en colaboración”) where multiple authors create an inseparable work together. In those cases, rights are held by all the authors that have participated in the creation of said work, and its disclosure and modification require the consent of all co-authors. IP rights regarding this type of work shall be determined by them together.

Collective works are those created through separate contributions from multiple authors, who assign their rights to the natural or legal person that initiates and co-ordinates the work.

Regarding works created by employees, the outcome depends on the specific circumstances. It will depend on factors such as the extent to which working time and company resources have been used. As a general rule, authorship remains with the employee; however, economic rights may be transferred to the employer, depending on the terms of the contract and the employment context.

As for contractors, the LPI does not foresee work-for-hire. Simply put, the creator-author will retain its economic rights unless reassigned in writing. However, under Spanish law, moral rights cannot be assigned, and the author will retain them even if he/she decides to waive them.

In Spain, copyright owners have the exclusive right to authorise or prohibit all forms of exploitation, including reproduction, distribution, public communication, making available online and transformation. These rights may be assigned or licensed.

The Spanish Intellectual Property Act recognises strong moral rights for authors. These rights are inalienable and cannot be waived or assigned, and they remain with the author during their lifetime. After death, they may be exercised by the author’s heirs or designated persons, subject to certain limitations. Their purpose is to protect the author’s reputation, the integrity of the work, and the author’s Will. However, the heirs do not, strictly speaking, become the author or acquire ownership of these rights in the same sense as the author held them during life.

These moral rights are:

• the right of disclosure (that means the right to decide if the work has to be disclosed and in what form);
• the right of attribution (the author has the right to decide if he/she wants to disclose the work under his/her name, under a pseudonym or anonymously);
• the right to the acknowledgement of their name;
• the right of integrity (object to any modification that may impact its reputation);
• the right to modify the work (while respecting the rights acquired by third parties and requirements for the protection of cultural heritage); and
• the right to withdraw the work from the market due to a change in its convictions (after paying compensation for damages to the holders of the economic rights).

Copyright protection (specifically, the economic rights) lasts for the life of the author plus 70 years. Once that period has elapsed the work enters the public domain.

Spanish legislation provides specific statutory exceptions to IP rights, including:

• temporary and private copy;
• public safety and official proceedings;
• quotations, reviews, and illustrations for educational or scientific research purposes;
• teaching and educational uses;
• news reporting;
• parody or pastiche; and
• use by libraries and archives exceptions.

Courts assess these exceptions on a case-by-case basis, interpreting them narrowly in light of the three-step test set out in the Berne Convention and incorporated into Spanish law. This means that the exception must be clearly defined and specific, must not interfere with the normal exploitation of the work, and must not cause disproportionate harm to the rights holder.

Copyright infringement occurs when a protected work is used without the corresponding authorisation. “Used” is understood as any exercise of the economic rights.

The LPI states different remedies such as injunctions, damages and interim measures. The Spanish Criminal Code also establishes criminal liability for certain infringements of intellectual property rights, particularly where they are carried out for profit and to the detriment of third parties. Penalties include up to four years imprisonment and fines.

The issues of “substantial part” copying and non-literal copying must be assessed on a case-by-case basis.

In the first case, determining whether a copy constitutes a “substantial part” requires considering the effect of the portion taken in the context of the work as a whole. A single phrase in a song may be a substantial part, whereas five sentences may not be so in a book.

In the second case, non-literal copying may generally be acceptable; however, whether it amounts to infringement depends on whether the structure, sequence, or organisation are common elements of the type of work (in which case it would not be considered copying) or, conversely, form part of the original and personal aspects of that particular work.

The CMO (chief marketing officer) manages copyright and related rights on behalf of authors and rights holders. Spain has several collecting societies, which have to be authorised by the state. They are heavily regulated and must operate with transparency and non-discrimination.

Their tariffs are negotiated with users and in the event that they do not reach an agreement it may be submitted to the First Section of the Intellectual Property Commission, which will fix the applicable tariff.

In the event that the users do not pay the corresponding tariff, the CMO can start a proceeding before the civil courts.

Spanish legislation regulates the protection of designs in Law 20/2003 of 7 July on the Legal Protection of Industrial Designs. The current law is in the process of being amended due to changes that have taken place at the European level. Indeed, Regulation (EU) No 2822/24 on European Union Designs amends and repeals the previous Regulation (EC) No 6/2002, and Directive (EU) No 2823/24 repeals and replaces the former Directive 98/71/EC. This constitutes a far-reaching reform of the European Union’s design protection system. The Regulation entered into force in May 2025, although it will be implemented in two phases: May 2025 and July 2026. And the Directive must be transposed by 9 December 2027, which has necessitated this reform of Spanish law; the public consultation phase for the draft bill was concluded in March 2025, and the bill will be presented shortly.

The protection of a design in the EU requires novelty (Article 5, Community Design Regulation (CDR)), individual character assessed according to the overall impression it produces on the informed user (Article 6, CDR), and that its features are not exclusively dictated by technical function (Article 8(1), CDR), in line with the interpretation of the CJEU in PepsiCo/Grupo Promer (C 281/10 P) and Doceram (C 395/16). The unregistered community design arises automatically upon disclosure within the EU (Articles 11–12, CDR), lasts three years, and only protects against deliberate copying (Article 19(2), CDR). In parallel, trade dress may be protected through unfair competition rules (Articles 4–5, Spanish Unfair Competition Act (UCA)) or as a three-dimensional trade mark if it has acquired distinctiveness (Articles 4 and 7(1)(b) and (e), EU Trade Mark Regulation (TMR)), following the CJEU’s case law in Henkel (C 218/01) and Lindt (C 529/07).

Registration of an industrial design can be carried out before the Spanish Patent and Trademark Office (OEPM) or before the EUIPO for a Registered Community Design, through a fast administrative procedure based on a purely formal examination and relatively low fees (in Spain, EUR66.27 for a single design, and at EU level, EUR350 for the first design with reduced rates for multiple applications); once granted, protection lasts for an initial five-year term and may be renewed in successive five-year periods up to a maximum of 25 years, while the Unregistered Community Design arises automatically upon disclosure in the EU, requires no formalities and provides a non-renewable three-year protection period.

Infringement of an industrial design or trade dress occurs when a third party uses an appearance that reproduces the protected design or does not produce a different overall impression on the informed user, or when it imitates the commercial presentation of a product in a way that creates a likelihood of association or unfair advantage. For a registered community design, infringement covers any unauthorised use (manufacturing, offering, marketing, importing or stocking), while for an unregistered community design only deliberate copying is prohibited. In the case of trade dress, infringement arises from copying the distinctive appearance of a product or its packaging when this leads to confusion or parasitic exploitation under unfair competition rules. Available remedies include interim injunctions to immediately stop manufacture or marketing, fact-finding measures, withdrawal and destruction of infringing goods, damages, publication of the judgment, and, at the border, customs intervention and detention of suspected goods through applications for border enforcement under Regulation (EU) 608/2013.

Courts assess whether a feature is “dictated by function” by applying Article 8(1) of the Community Design Regulation and the interpretation of the CJEU in DOCERAM (C 395/16), which rejects the former “multiplicity of forms” test and requires an examination of all objective circumstances (nature of the product, technical function, existence of industry standards, the designer’s behaviour, technical documentation, etc) to determine whether the sole reason for the shape is to enable the product to function. If the technical function is the exclusive cause, the feature is excluded from protection. Partial designs are protected in the EU provided that the claimed part is visible during normal use of the product and meets the requirements of novelty and individual character; the functionality exclusion applies to each part in the same way, so a partial design cannot monopolise an element whose shape is technically necessary. A design may be refused or invalidated on grounds of “technical necessity” when the relevant features fall under Article 8(1) (exclusive technical function) or Article 8(2) (must fit interconnections, except modular systems) of the CDR. In such cases, the consequence is total or partial invalidity, because design law cannot grant a monopoly over technical solutions that must remain available to competitors.

Law 3/1991 of 10 January on Unfair Competition regulated unfair competition in Spain for the first time. Prior to this, only isolated references could be found in the Trademark Law and the Advertising Law. Its purpose was to regulate acts carried out in the market for competitive purposes, protecting commercial good faith, businesses, and consumers. It is based on a clear principle: the imitation of third parties’ business initiatives and products is, in principle, free, unless they are protected by an exclusive right recognised by law.

The Unfair Competition Act generally prohibits acts that are contrary to the requirements of good faith, as well as misleading acts, acts of confusion, misleading omissions, aggressive practices, acts that darken reputation, imitation, exploitation of another’s reputation, and inducement to breach of contract, among others, considering these to be practices that must be prevented.

Law 29/2009 of 30 December, which amended the legal framework on unfair competition and advertising in order to enhance consumer protection, reformed the 1991 Act. It implemented several EU directives, in particular Directive 2005/29/EC of 11 May concerning unfair business-to-consumer commercial practices in the internal market, and Directive 2006/114/EC of 12 December concerning misleading and comparative advertising, reorganising unlawful competitive practices and adapting them to modern market conditions.

One of these unlawful acts – misappropriation of trade secrets (Article 13 of the Unfair Competition Act) – was later given independent regulation through Law 1/2019 of 20 February on Trade Secrets. This law also implements Directive (EU) 2016/943 of 8 June on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure.

The law defines a trade secret as any information or knowledge, including technological, scientific, industrial, commercial, organisational, or financial information, that meets the following requirements.

• It is secret, in the sense that, as a whole or in the precise configuration and assembly of its components, it is not generally known among, or readily accessible to, persons within the circles that normally handle this type of information or knowledge.
• It has commercial value, whether actual or potential, precisely because it is secret.
• It has been subject to reasonable steps by its holder to keep it secret.

The law provides that holders must adopt “reasonable” measures to maintain the secrecy of trade secrets. This requires a case-by-case assessment to determine whether such reasonable measures are in place. Depending on the type of information considered to be a trade secret, the measures may vary (eg, restricting access to information, implementing layered security systems, using passwords, and controlling access to IT systems).

Where the information must be disclosed to employees or third parties, equally reasonable protective measures must be adopted, including the imposition of significant sanctions in the event of a breach of those measures.

The acquisition of trade secrets without the consent of their holder is considered unlawful when carried out through:

• unauthorised access, appropriation, or copying of documents, objects, materials, substances, electronic files, or other media containing the trade secret or from which the secret may be deduced; and
• any other conduct which, in the circumstances of the case, is considered contrary to honest commercial practices.

The use or disclosure of a trade secret is also considered unlawful when, without the consent of its holder, it is carried out by a person who has obtained the trade secret unlawfully, by a person who has breached a confidentiality agreement or any other obligation not to disclose the trade secret, or by a person who has breached a contractual obligation or any other duty limiting the use of the trade secret.

The acquisition, use, or disclosure of a trade secret is likewise unlawful where the person engaging in such conduct knew, or ought to have known in the circumstances, that the trade secret had been obtained directly or indirectly from another person who was using or disclosing it unlawfully as described above.

The protection of trade secrets lasts for as long as the information continues to meet the conditions required to qualify as a trade secret. This allows rights over trade secrets to be transferred in the course of business transactions and to be licensed, without losing their status as trade secrets.

Authorised or accidental disclosure will cause the disclosed information to lose its status as a trade secret, without prejudice, of course, to any actions that may be brought against the person who made such disclosure if it was not authorised.

Against acts of trade secret infringement, all actions inherent to such violations may be brought, including a declaration of infringement, cessation of the infringing conduct, seizure of infringing goods where applicable, or their transfer to the trade secret holder, an award of damages, and the publication of the judgment, in whole or in part.

Interim relief may also be requested, provided that the general requirements are met: prima facie case (fumus boni iuris), risk in delay (periculum in mora), and the provision of security.

All such actions are subject to a limitation period of three years from the moment the entitled party becomes aware of the identity of the person who committed the trade secret infringement.

Spanish law also classifies as a criminal offence (Articles 278 and 279 of the Criminal Code) the unlawful disclosure of industrial secrets or the unlawful exploitation of information communicated under an express or implied duty of confidentiality.

In cases involving trade secret information within judicial proceedings, the law provides for measures to be adopted by the court to ensure that all persons who may access the information maintain its confidentiality. Such measures include restricting access to certain individuals (lawyers, court representatives, parties, etc), limiting access to hearings, and keeping the information separate from the main case file documentation, among others, while respecting the right to effective judicial protection, the right of defence, and any potential prejudice that such restrictions may cause to the parties to the proceedings.

In Spain, know-how is not subject to specific legal regulation or definition; rather, its protection is governed by the rules on trade secrets, as outlined above, as well as by the civil law governing contracts, which is based on the parties’ mutual agreement.

Consequently, the main protection is provided by the Unfair Competition Act and the Trade Secrets Act, as well as the applicable provisions of the Civil Code regarding the regulation of contracts. As it is an unregistered intangible asset, its protection depends on confidentiality, non-disclosure agreements (NDAs) and any clauses that may be included in employment and commercial contracts.

Know-how can be used to protect manufacturing processes, assembly techniques, chemical formulas, product compositions and any other type of technical and/or commercial information acquired through business experience.

Know-how may be the subject of legal transactions such as licensing or transfer, just like any other intangible asset of the company, and although it does not confer an exclusive right, its protection is obtained through mandatory confidentiality and the legislation mentioned in 6.1 Definition and Legal Basis of Know-How.

The requirements are those of trade secrets: it must be secret, have commercial value, and reasonable measures must be taken to keep that knowledge and/or information secret. Similarly, it must be described in such a way that it can be verified.

In Spain, it is presumed that the employer is the owner of know-how created by employees, provided that the know-how was developed within the context of an employment relationship or a contract for the provision of services, and using the company’s resources. Therefore, whether the know-how has been generated because the employee was specifically hired to research or develop methods (an R&D department, for example) or whether the know-how is developed using the company’s information, time, resources or infrastructure, ownership of the know-how will always belong to the employer.

Know-how is primarily protected through contracts. Where the aim is to protect know-how from third parties, this is achieved through non-disclosure agreements (NDAs); where the aim is to protect it from employees and/or contractors, this is achieved through specific confidentiality clauses included in employment or commercial contracts. Most of these agreements and/or clauses also include a penalty clause, setting out the damages (usually very high sums) in the event of a breach of confidentiality.

Know-how can be transferred or licensed, just like trade secrets. There are no specific legal provisions governing the form of such transfers or assignments, but they are usually done in writing to provide a clear and precise record of the agreement’s content, without any other special formalities. In other words, no special registration is required, nor is it necessary to have the agreement notarised.

In Spain, reverse engineering, for the purpose of observing, studying, dismantling or testing a product, is legal provided that the following conditions are met.

• Access to the product has been lawful – that is to say, it has been legally acquired on the market.
• There is no contract or confidentiality agreement that expressly prohibits reverse engineering of the said object.

Any other form of access to the information, through espionage, deception, theft, or breach of a confidentiality or non-disclosure agreement, is unlawful in Spain and will be subject, depending on the severity, either to the penalties provided for under civil law or to the more severe penalties under the Criminal Code.

Therefore, if you wish to keep your know-how properly protected, it is advisable to impose contractual restrictions to prohibit reverse engineering.

Within the EU, databases are afforded various forms of protection under intellectual property law. In addition to protection as a work – which is limited solely to cases where their structure is original – the so-called “sui generis” right also protects the substantial investment made by the manufacturer in obtaining, verifying or presenting the content. The presence of this requirement for substantial investment is assessed qualitatively or quantitatively whether in terms of financial resources, time spent, effort or other similar parameters. On the other hand, as regards the protection of the content (the data), this is achieved primarily by treating it as confidential (as trade secrets) and regulating access to and use of it through contracts. Both forms of protection are useful in dealing with the mass, automated extraction of data (for example, web scraping). In short, the protection of databases requires a hybrid approach: copyright (original structure), sui generis rights (substantial investment) and/or trade secrets/contractual arrangements (dataset).

Generally speaking, results generated exclusively by artificial intelligence (AI) are not protected by copyright. Under the vast majority of legal systems (as is the case in the European Union, and in Spain in particular), such rights require human authorship. At present, there is very little specific legislation on AI, and therefore all issues arising from the creation of content using AI must be addressed and resolved under current intellectual property law, which only recognises authorship for works that are the product of human creation.

Given this difficulty in obtaining copyright over works generated by AI, companies’ strategy must involve reinforcing and protecting the added value of the human factor during the creative process. In this regard, to facilitate such protection, it is essential to maintain rigorous documentation of human involvement, establish well-defined internal protocols and policies, and make use of contracts and/or trade secrets as a means of protection.

The use of copyright-protected works, or confidential information protected as trade secrets, for the purpose of training an AI carries obvious legal risks. If the rights holders are able to prove unauthorised use of their rights for this purpose (which is not always easy), the party responsible may face legal proceedings that could result in a ban on such use and an obligation to pay compensation for the damage caused, as well as suffering reputational damage.

However, there are some legal exceptions for specific cases that allow text and data mining (TDM) to be carried out without the need to seek permission from the rights holders. In the EU, these exceptions were introduced by Directive (EU) 2019/790 on copyright in the Digital Single Market, which are essentially divided into two types depending on the purpose and the beneficiary: (i) scientific research, intended for research bodies and cultural heritage institutions, which is mandatory; and (ii) the general exception, which allows text and data mining by any person or entity, including for commercial purposes (such as AI training), although under certain conditions, making it much more restrictive and limited (though it does grant greater flexibility to creators).

There are legal, regulatory and technical mechanisms in place to prosecute those who breach the rules by using generative AI tools. However, as of today, no adequate regulations have been developed to address the issues arising from the use of these tools; consequently, to tackle this type of infringement, one must rely on the provisions of the general regulatory and legal framework.

The rapid evolution of technology presents significant challenges, and it has become clear that current legal frameworks are not as effective as they should be in taking effective action against the misuse of AI in areas such as intellectual property or privacy, making the development of new, specific regulations essential. In all this, digital platforms and tool providers play a very important role. Precisely for this reason, and although historically they operated under the principle of “liability exemption” as mere intermediaries, the current EU regulatory framework has evolved towards a model of greater accountability on their part, so that these types of digital platforms and AI tool providers are increasingly exposed to subsidiary liability, at the very least, and even, in certain cases, to direct liability for the unlawful content, products and/or services offered by third parties using their infrastructure.

When an object is eligible for various forms of intellectual property protection – for example, copyright, design rights or trade marks – the choice of the most appropriate form for that object will depend on the strategy adopted. And the strategy must take into account the intended use of that creation and/or invention, that is, what its main application in the market will be, or also the most outstanding aspect of the object to be protected, that is, what it stands out for most, whether as a distinctive sign, a design or an original creation. It is equally important to consider the object’s potential for success in the specific form of protection sought. Similarly, its potential for internationalisation or even the costs associated with the protection sought must be taken into account.

As regards the accumulation of protection, the Spanish IP system is limited only by compliance with the various requirements set out in each of the different protection systems. If an object eligible for copyright protection also meets the requirements of patent law, it may be protected by both systems. This is a scenario that is difficult to imagine, where the existence of an original object, in the sense that it constitutes an intellectual creation specific to its author, reflecting their personality through free and creative decisions, and the existence of such an object can be identified with sufficient precision and objectivity, so that the scope of protection can be clearly determined (an interpretation recently reaffirmed in the “Cantemir” case of 2026, C-649/23), could also be protected by a patent right if it further possessed global novelty, involved an inventive step – in the sense of not being obvious to a person skilled in the field – and had industrial application.

In any case, it is most common for this dual protection, straddling the worlds of copyright and industrial property, to apply to designs. The special characteristics of designs mean that they can enjoy dual protection. Not only do they have specific protection as designs, but if they meet the requirements set out in the Spanish Intellectual Property Law, they may also benefit from copyright protection. The possibility of this dual protection is very important in the field of design. This was provided for in Article 96(2) of Regulation (EC) No 6/2002; Article 9 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights; and Article 17 of the aforementioned Directive 98/71/EC.

Benefiting from virtually universal and much longer protection without formal requirements is not something to be taken lightly. That is why it has also been the subject of many CJEU rulings which have clarified in which cases such accumulation is possible and in which it is not. (See, among others, the “Brompton” case, 2020, 833/18; or, more recently, the judgment of the Court of Justice of the European Union (First Chamber) of 4 December 2025 (which jointly ruled on the joined cases “Mio” C 580/23 and “USM” C 795/23).)

In Spain, cases such as the one handled by the firm that the authors work for, have applied the doctrine of the CJEU. In 2018, the Barcelona Court of Appeal ruled that the designs of four chairs created by four leading Spanish designers (Mariscal, Pensi, Tusquets and Cortés) were also works protected by copyright.

The principle underlying the grant of a monopoly or an exclusive right as powerful as that conferred by a patent is precisely that, in exchange, the patented information must be disclosed so that, once the term of protection has expired, it may be used by others. Confidential know-how or technical information may be considered a trade secret prior to, or even during, the patent application process. However, if the content of the secret is incorporated into the patent, it is disclosed upon publication and consequently ceases to be secret.

There are inventions that are classified as being in the interest of national defence. In such cases, their publication and prosecution are restricted in order to prevent the disclosure of information considered sensitive or strategically important for national defence.

The shape of a product or its packaging can, in fact, be protected simultaneously through word marks, three-dimensional marks or trade dress, and industrial designs. The trade mark will protect the logo and/or isotype and/or imagotype, or, as it is better known, the name identifying a product, its graphic configuration or a combination of both. However, if the wrapping or packaging is distinctive, it may also be registered as trade dress, which protects the three-dimensional shape of the packaging. And none of the above prevents the packaging from also being protected as an industrial design if it is genuinely novel in the sense that it has not been disclosed prior to registration and possesses a unique character, meaning that it produces a distinct impression on an informed user. In this way, it would accumulate three distinct forms of protection.

There are many circumstances in which logos, artistic elements or brands may be protected by both systems simultaneously. The most typical case in which copyright and trade mark protection may overlap is that of a character who becomes famous; as their aesthetic development – originally an intellectual creation intended for an animated production – is enhanced by new attributes resulting from their goodwill, such as distinctiveness. It is entirely possible that a character from a children’s series may end up serving to distinguish one product from another through the application of character merchandising via licensing, making it essential to protect that character as a trade mark. When this occurs, there will undoubtedly be limitations on the scope and strength of the protection or on the application of restrictions, such as geographical or temporal ones, which will need to be resolved on a case-by-case basis.

Under Spanish law, it is possible to bring claims based on different intellectual property rights in the same proceedings, provided that the facts underlying each of the claims are not exactly the same. For example, in a case of infringement of an audiovisual work, if both intellectual property rights and registered distinctive signs have been infringed, it is possible to join the claims in a single action.

Similarly, it is also possible to combine claims based on a specific intangible right (such as copyright or related rights, trade marks, or designs) with claims under unfair competition law, provided that the factual basis is not identical. In such cases, the doctrine of relative complementarity applies, meaning that when a certain act has already been assessed under the special legislation (intellectual property, trade marks, etc), the same facts cannot be reassessed under unfair competition law.

As regards damages, given that the facts will not be the same, damages may be awarded for each of the intellectual property rights that the court considers to have been infringed. The only restriction is that double compensation is not permitted where the same facts give rise to overlapping infringements of different rights. This could occur, for instance, in cases involving the misappropriation of trade secrets together with patent infringement, where the trade secrets are already encompassed within the scope of the patent infringement.

Conflict-of-laws rules in international disputes are generally designed to resolve uncertainties that arise in cases of conflict. However, they are not always easy to apply, as IP rights are highly territorial; and although there is a process of convergence in their regulation, significant differences remain, even within a territory such as the EU.