Frequently asked questions regarding patents and trademarks.

Intellectual property protects both copyright, traditionally applicable to scientific, artistic or literary works, as well as the rights of artists, performers and performers. Rights other than those traditionally included in this category also fall into this category, such as those relating to the protection of software, or the so-called sui generis rights on the creation and maintenance of databases.
Meanwhile, industrial property protects, on the one hand, the rights relating to distinctive signs (trademarks and trade names). On the other hand, it protects inventions (patents, utility models). Finally, it also protects the so-called creations of form, through industrial models and designs.

Several aspects must be taken into account: first, for the brand to be considered as such, it must be distinctive. We cannot register generic indications of our product or service, as they are not appropriable. Secondly, we have to make sure that the trademark is available, that is, it does not conflict with other previous rights, either as a trademark or another right of the personality such as the right to the name or the image itself or another intellectual property law, etc.

The trademark identifies the product that we manufacture or offer, or the service that we provide. The commercial name directly identifies who manufactures or offers the product or who provides the service. On many occasions it is difficult to distinguish one category from the other.
The trademark can be extended internationally by procedures established via the international trademark registration procedure or that of the European / Community trademark. On the other hand, this is not possible in the commercial name that could only be protected country by country and in accordance with the national regulations of each State.

No; furthermore, the commercial name does not have to coincide with the company name and, therefore, a different commercial name from the company name can be chosen. The same natural or legal person can have, if it wishes, several commercial names to identify business activities belonging to different sectors of economic traffic.

The name of a person who does not identify the applicant for the same cannot be registered as a trademark. Another issue is that, apart from being our first and last name, or the name of my company, it is also that of another person or entity. That is why if you want to use our name / surname or company identification in economic traffic, it is interesting to consider registering the trademark.

The owner has the obligation to use the trademark, either by himself or through a person authorized by him. If the trademark is not used, after five years from the publication of its concession, or stops being used for the same period after having been used, the courts (or the SPTO itself from 2023) may declare its expiration as a result of an action brought by third parties.

There are two ways to make a patent profitable: the first is derived from its own conception as an exclusive right: patenting is the only safe tool to prevent third parties from exploiting our invention. On the other hand, the patent (or the utility model) constitutes a patrimonial asset that can be assigned or licensed, obtaining economic returns by allowing third parties to operate in the market with the product of our creation.

Yes, but it should be an official or officially recognized exhibition (according to the Agreement Relating to International Exhibitions) that has taken place at most in the 6 months prior to the date of submission of the application.
To accredit the exhibition of the invention, a certificate issued by the exhibition authority must be presented, within a maximum period of 4 months from the presentation of the application.

The first recommendation is to go to a professional, and perform a responsible comparative analysis between what is patented and what is offered by the alleged offender. In the event that it is concluded that there is an infringement of our exclusive right, the next way is to enforce the patent, either judicially or out of court.

The utility model is a form of industrial property that is used to protect a configuration, structure or composition from which there is a practically appreciable advantage for its use or manufacture. It is a perfectly valid tool, and depending on the type of inventions, recommended against the patent.

There are no global registrations, neither for distinctive signs nor for inventions, effectively all over the world. But there are instruments that allow protection to be extended wherever necessary. Professional advice on this point is essential, as well as having a network of collaborators around the world that allows us to speed up protection and act with complete assurance that our interests are duly protected.

The first recommendation is to go to a professional, and carry out a thorough analysis of the use of the distinctive sign by the alleged offender. In the event that it is concluded that there is an infringement of our exclusive right, the next way is to enforce the trademark, either judicially or out of court.

Unfortunately, this is the case, unless we are able to prove a well-known knowledge of the distinctive sign that we have been using, even if we have not registered it. Our experience is that in very few cases this notorious knowledge is recognized, thus the only way to guarantee that our brand is effectively ours, preventing third parties from using it, is by registering it.

There are numerous limitations that must be taken into account, both of a general nature (signs that cannot be registered as trademarks, inventions that despite being so, are not patentable) and specific (we can find a pre-existing registration that invalidates the economic effort involved in building a brand or develop a technological breakthrough). Acting before a consolidated industrial property agent allows having a technical and legal team that adequately guides and advises which modalities to choose, among those available. Sometimes protecting evil means disclosing, and evil is irreparable. For this reason, specialized advice on industrial property is not only advisable but completely necessary.

Not at the beginning; there are parallel and complementary instruments that can fill this gap (legislation on unfair competition, protection of business secrets). However, a complete reflection is advisable to exclude the possibility of protecting by means of a patent.

No, since it will not comply with the novelty requirement required for the patentability of inventions, whether it is a patent or a utility model.

To register in these countries it is necessary to have a stable and permanent professional address in them, or to have a local industrial property attorneys. At Azagra Patentes y Marcas we have a consolidated network of collaborators.