Spanish Penal Code reforms will affect IP rights

Spain

Law 15/2003, which will introduce reforms to the laws governing offences against intellectual property (IP) in the Spanish Penal Code, has been published. The reforms will take effect from October 1 2004.

Some of the most important changes are the following:

  • The unauthorized parallel importation of genuine articles protected by copyright and trademark rights will be a criminal offence. The reform will make Spain the only country in the European Union where parallel importation is governed by penal law. It will bring with it important advantages for the holders of exclusive rights as they will be able to seize products imported without their consent from a territory outside the European Economic Area, merely by lodging a complaint with the police. This reform may conflict with the enforcement by Spanish customs authorities of EU law set out in the Council Regulations on Counterfeiting 3295/1994 and 1383/2003. These regulations do not apply to genuine products, which means that, in principle, these products cannot be seized. It is not yet clear, therefore, how the criminalization of parallel importation will work in practice.

  • The enforcement of rights relating to protected plant varieties, currently within the ambit of civil law, will be covered by criminal law. The unauthorized production, reproduction, advertising, sale, export, import or possession of protected plant varieties will be deemed a criminal offence. A party who knowingly uses a protected plant variety name on a different variety of plant will also be deemed to have committed a criminal act.

  • A number of new offences relating to radio and television broadcasting, and interactive email and internet services will be added to the Penal Code. The introduction of these offences will attempt to address problems arising out of the use of new technology in the information and communication industries.

  • The police will be given authority to take ex officio action in relation to IP offences.

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