New time bar for IP crimes


As a consequence of the new regulation implemented by Law 5/2010, the Criminal Code has undergone important amendments. The new regulation affects various provisions of the Criminal Code, including the time bar statute for IP crimes.

The time bar set out in the Criminal Code specifies different time periods for the expiry of criminal liability depending on the severity of the crime. Before the amendments to the Criminal Code, the time bar for crimes against IP rights was:

• three years under normal circumstances; and
• up to five years in cases where it could be proven that there were aggravating circumstances, as set out in the Criminal Code.

Following the recent amendments, the minimum period of the statute of limitations for IP crimes has been extended from three to five years, without having to prove the existence of aggravating circumstances.

The reason for raising the minimum period from three to five years is set out in the introduction to Law 5/2010:

"Rethinking the litigation system of the requirement as set out above also encourages a review of some aspects of its substantive regulation. The impunity due to the time barring of certain offences punished with minor sentences... which however can be complex and time consuming to investigate, has discredited the judicial system and been directly detrimental to the victims. It has therefore been decided to raise the minimum period of the statute of limitations to five years, thus eliminating the three-year term which, up to now, was what was used for those with prison sentences or professional disqualification of less than three years."

This change could be of great practical importance in the prosecution of IP crimes, as procedures are, in some cases, complex and time consuming. Therefore, the increase of the minimum period from three to five years places IP right owners in a better position to try to avoid the impunity of the infringers, which resulted from delays in proceedings due to the complexity of the case or the court's lack of activity.

Nevertheless, the increase in the minimum period applies only to IP crimes, and not to cases where, according to the new Criminal Code, the defendant's activity constitutes merely a misdemeanour. In such cases, the time bar is limited to six months.

Several uncertainties have arisen due to the coming into force of the regulation, despite the potential benefits of the amendments. First, it is clear that the new five-year period applies to those IP crimes committed after December 23 2010 (the date of entry in force of the new regulation). However, as far as the new regulation can be considered to be less favourable to defendants, it remains to be seen whether the new minimum period will be applied by the criminal courts in proceedings that were pending at the time when the new regulation came into force.

Second, it also remains to be seen how the time bar statute will be applied in proceedings that were initially prosecuted as IP crimes, but ended up being punished as a mere misdemeanour.

The IP community now has to wait until the new time bar is implemented by the criminal courts to see whether the increase in the minimum period will prove to be as positive as the legislature intended.

Sheila Martin, Grau & Angulo, Barcelona

Unlock unlimited access to all WTR content