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How do you get a trademark registration in Spain?
In order to have the exclusive rights of a trademark, it is necessary in Spain – as in many other countries – to apply for trademark registration. At national level you do this at the OEPM, the Oficina Espaňola de Patentes y Marcas. If your application for trademark registration in Spain is approved by this organization, your rights also apply to Ceuta, Melilla and the Canary Islands. Initial approval by the OEPM does not immediately mean that your trademark can be registered; after its publication in the Spanish Industrial Property Bulletin, third parties have two months to object.
The difference between a trademark and a trade name
There is often confusion about the difference between a trademark and a trade name. A trade name serves to recognize a company and its trading activities and helps it to distinguish itself from other companies in the same, but also other sectors. However, a trademark is a sign that exists to distinguish products and services in the market. A trade name can only be protected in the country of origin and in accordance with national law. Trademark registration and protection can take place at an international level.
Whether or not to use your trademark
You may want to register a trademark in Spain, without using the trademark immediately. This is allowed, although it is recommended to actually use the trademark in Spain. This prevents a possible objection from a third party on the grounds of a lack of distinctive character. Your trademark becomes vulnerable to cancellation after five years for this reason. To prevent this as effectively as possible, the trademark must operate on a commercial scale. Only in exceptional cases will inactivity of your trademark be accepted.
The period of validity of your trademark registration in Spain
When the OEPM grants you a trademark registration in Spain, it is valid for ten years, starting from the date on which the application was filed by you. You can renew your trademark registration in Spain indefinitely and you do it for ten years each time. You can submit your application for extension from six months before the end date of the current registration period. If you are late with applying for the extension, you will pay extra costs to start this process.
If you submit an application for trademark registration in Spain that concerns a combined trademark, that is, a trademark that contains both verbal and figurative elements, any right granted to you will only apply to the exact combination in which you submitted it. This also means that your position is less strong when a third party submits an application for registration that contains one of the two elements. Although you can also object to this, it is wise to register both elements separately in order to optimally protect them both.
Costs for trademark registration in Spain
Whether you submit an application for trademark registration in Spain that only contains a word element or figurative element, or it concerns a combined trademark, this has no consequences for the costs associated with the procedure. The costs for trademark registration in Spain are around € 144 at the time of writing. Applications for extension are approximately € 93.00. Next to these governmental taxes you pay a fee to the trademark agent.
Application for trademark registration at European level
Instead of just applying for trademark registration in Spain, you can also immediately apply for an international application. For example at the EUIPO. If your application is approved, registration and protection of your trademark will apply in all countries affiliated to the European Union. The EUIPO uses the Nice classification, a system for classifying goods and services that is used throughout the European Union. Your trademark can fall under one or more classes. In total there are 34 goods and 11 service classes.
The costs associated with an application through the EUIPO do not depend on the type of trademark (verbatim, figurative or combined), but on the number of classes it falls under. It is not uncommon for an application to the EUIPO to be rejected because the classification indicated by the entrepreneur appears to be incorrect. You can choose to hire a trademark agency. This increases the chance of positive test results.
An application for international trademark registration
If you want to market your product or service not only in Spain, but in many more countries, instead of an application with the EUIPO, you can also submit an application with the WIPO. This office works according to the so-called Madrid Protocol. This convention has been in force since 1996. In addition to the countries of the European Union, other countries (United States, Australia, Japan, China and Russia) are also affiliated. A disadvantage is that a trademark registration through the WIPO does not provide trademark protection. This is in contrast to trademark registration in Spain at national level and trademark registration within the European Union.