26th February 2019
“Industrial designs provide efficient protection of a restaurant’s aesthetics and atmosphere”
opening a restaurant nowadays, it is important to not only offer cuisine that
is gastronomically fashionable, but also to create an environment that impacts
customers. This is due to the current transformation in the restaurant business
that the experience of eating now also includes entertainment, sensations and
the atmosphere of the restaurant can make the customer feel relaxed and joyful it
will, without a doubt, influence their perception of the restaurant and dictate
behavior when it comes to how they order.
when thinking of the design of a restaurant, try to imagine that you are in any
restaurant in the world, enter the building and sit down. Think about it from the customer’s
perspective and see if you feel an inclination to stay at this restaurant.
was the recent thought process of Spanish franchise TABERNA VOLAPIE in an
effort to think of a way to provide added value to their restaurants. Their
special decoration with traditional Spanish motifs and lamps made from antique
water bottles is protected by the Spanish national design No. 0526169
well as the restaurant setting, it is also important to think about product
design. As is often the case with Spanish products, it is common practice for
olive oil producers to make their bottles stand out by using attractive
designs. We have to remember that Spain and Italy are known worldwide for the
quality of their oils and for how they defend their designs against third
these examples show, a wide range of designs can be essential to a business’s
brand, identity and success. How then, can those designs be protected in Spain?
can I defend my industrial designs in Spain?
Spanish legal system provides several possible actions for an industrial design
holder to defend their rights, including both civil and criminal proceedings.
file a civil suit: demanding the cessation of
infringement of your rights; to gain compensation for damages; to obtain the
measures necessary to prevent the infringing activity from continuing; for
destruction or transfer of the infringing products to the holder of the right;
as well as the publication of the judgement decision at the expense of the
mind, these civil proceedings are affected by a statute of limitations and an
action can only be brought within 5 years from the day on which the offending
to Art. 55, manufacturers or importers of products that incorporate industrial
designs without authorization are obligated to provide compensation for
damages. Furthermore, those that carry out other unauthorized acts of
exploitation shall be responsible for compensation, starting from when they are
notified of the existence of the design right.
can also be protected by copyright laws, in addition to industrial design protection
. Art. 3 of the Royal Legislative Decree
1/1996 of 12 April (Consolidated text of the intellectual property law) states
that the author’s rights in copyright are compatible with any industrial
property rights that may exist in relation to the work.
the industrial design may be used as a financial asset in legal transactions:
it can be assigned or licensed, it can be the object of a guarantee, of seizure,
or of a purchasing option, among other things.
and expiration of the industrial design
design can be declared invalid if a court determines that any of the causes of
person, or any group representing manufacturers, dealers or consumers may
request a design be deemed invalid if they are negatively affected by the
industrial design right. The owners of prior rights in similar designs can also
bring invalidity actions.
invalidity is established, the design right is deemed to have never been valid.
Nevertheless this retroactive effect shall not affect contracts made before the
determination of the invalidity(Law 20/2003 of 7 July on legal protection of
other hand, a validly-registered industrial design will expire if it has not
been renewed within the period of 5 years, the rights have been waived by the
owner, or because the owner of the design right no longer meets the conditions
for their right to be registered.
of EU legislation on design protection – Spain’s position
European Commission recently opened a public consultation procedure, the aim of
which is to collect sufficient data and opinions of interested parties to use
them for support in the evaluation of the Directive 98/71/EC of the European
Parliament and of the Council, of 13 October 1998 on legal protection of designs
and models (“Directive on designs and models”) and Regulation (EC) No. 6/2002
of the Council, of 12 December 2001, on community designs and models (“Regulation
on community designs and models”) with the aim of determining to what extent these
legislative actions will work as intended and to what extent they can continue
to be considered suitable to their aims.
This consultation will most likely conclude with a reform, if deemed
necessary, of the aforementioned Regulation with a large impact on the national
legislation of industrial designs. Due to Spain’s importance in the field of
industrial designs – it is the country with the third highest number of
designs, behind Germany and Italy – we must make sure we continue to support,
defend and provide protection for design owners in Spain.
Mariano has considerable experience in managing brand portfolios in Spain and the Hispanic Americas.
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