Industrial Property Crimes: Trademarks and Patents (Art. 274 CP)

Trademarks, patents and designs are assets worth as much as a factory. That is why the Criminal Code protects their owners against anyone who manufactures, imports or sells goods that copy a registered distinctive sign. These are the industrial property offences of articles 273 to 277 of the Spanish Criminal Code (CP), whose flagship provision is art. 274 CP on trademarks. As criminal lawyers specialising in industrial property, we explain which conduct is punished, with what penalties and how to defend such a charge.

What Industrial Property Protects

Industrial property groups the rights over registrable creations of commercial or technical application: trademarks and trade names (distinctive signs), patents and utility models (inventions), industrial designs and models (the shape or appearance of a product), semiconductor topographies, plant varieties and designations of origin and geographical indications. The common element is that these are registered rights: the criminal reproach turns on their exploitation without the owner's consent and with knowledge of that registration.

The Offence of Trademark Counterfeiting (Art. 274 CP)

This is the most common figure. Art. 274.1 CP punishes anyone who, for industrial or commercial purposes, without the consent of the owner of an industrial property right registered under trademark law and with knowledge of the registration:

• Manufactures, produces or imports goods bearing a sign identical or confusingly similar to the trademark; or
• Offers, distributes or markets at wholesale those goods, or stores them for that purpose, where they concern the same or similar goods, services or activities for which the trademark is registered.

The penalty in these cases is one to four years in prison and a fine of twelve to twenty-four months. Art. 274.2 CP provides a less serious offence for anyone who markets at retail or provides services with a confusingly similar sign —and for anyone who reproduces or imitates the sign for use in this conduct—, with a penalty of six months to three years in prison.

The Attenuated Form: Street or Occasional Sale

The legislator distinguishes the large-scale counterfeiter from the street vendor. Art. 274.3 CP punishes the street or occasional sale of these goods with six months to two years in prison. But it introduces a proportionality valve: given the characteristics of the offender and the small amount of profit obtained or obtainable, and provided none of the aggravating circumstances of art. 276 apply, the court may instead impose a fine of one to six months or community service of thirty-one to sixty days. This is the usual route to resolve, proportionately, the classic case of the street blanket or the occasional stall.

Patents, Models and Designs (Art. 273 CP)

Art. 273 CP protects inventions and designs. It punishes anyone who, for industrial or commercial purposes and with knowledge of the registration, without the consent of the owner of a patent or utility model, manufactures, imports, possesses, uses, offers or puts into commerce objects protected by those rights, or uses a patented process. The penalty is six months to two years in prison and a fine of twelve to twenty-four months. The same penalties apply where the conduct concerns an industrial or artistic model or drawing, or a semiconductor topography protected in favour of a third party. In addition, art. 274.4 CP punishes the unauthorised production, marketing or importation of reproduction material of a protected plant variety, an area that often surfaces in agricultural disputes.

Two requirements run through all of these provisions and frequently become the battleground of the case. The first is the industrial or commercial purpose: conduct in a strictly private setting, with no aim of putting goods into the market, falls outside the offence. The second is knowledge of the registration: the perpetrator must be aware that the trademark, patent or design is registered and protected. Both elements have to be proven by the prosecution, and both are fertile ground for the defence.

Table of Penalties (Arts. 273-277 CP)

Conduct	Provision	Penalty
Patent, utility model or industrial design	Art. 273	Prison 6 months-2 years + fine 12-24 months
Trademark: manufacture, import or wholesale	Art. 274.1	Prison 1-4 years + fine 12-24 months
Trademark: retail sale or services	Art. 274.2	Prison 6 months-3 years
Street or occasional sale	Art. 274.3	Prison 6 months-2 years (fine or community service possible)
Aggravated forms	Art. 276	Prison 2-6 years + fine 18-36 months + disqualification

Art. 276 CP aggravates the penalties —up to two to six years in prison, a fine of eighteen to thirty-six months and special disqualification of two to five years— where the profit is of special economic significance, the facts are especially serious, the offender belongs to an organisation devoted to these activities or minors are used. Art. 277 CP punishes disclosing a secret patent application to the detriment of national defence.

Distinction from Other Offences

• Intellectual property (art. 270 CP): protects the creative work (books, music, film, software), not distinctive signs or inventions. It is a distinct offence, with its own definition and penalties (six months to four years in prison and a fine), and also with an attenuated form for street or occasional distribution. Trademark counterfeiting should not be confused with the piracy of a protected work.
• Offences against the market and consumers: figures such as misleading advertising, the discovery and disclosure of trade secrets or the distortion of competition protect the functioning of the market and consumer confidence, not an exclusive registered right. They may concur with industrial property depending on the facts, but the protected legal interest is different.
• Fraud: the mere sale of a counterfeit product is not, in itself, fraud; it becomes fraud when the buyer is deceived into believing they are acquiring an original, with error and a transfer of assets. The distinction is decided case by case.

Lines of Defence

1. No likelihood of confusion: if the sign is neither identical nor genuinely confusingly similar to the registered trademark, or does not concern the same or similar goods, an essential element of the offence falls away. Expert evidence comparing the signs is decisive here.
2. Exhaustion of trademark rights: where the goods were placed on the market within the European Economic Area by the owner or with their consent, the owner can no longer oppose their resale. This is the typical defence in parallel imports of genuine product.
3. Absence of intent: the offence requires knowledge of the registration and the will to market the confusingly similar product. A good-faith purchase from an apparently legitimate supplier, with an invoice and no signs of counterfeiting, may support absence of intent or mistake.
4. Consent or licence: the existence of authorisation, a licence or a contractual relationship with the owner excludes the offence.
5. Minor scale and attenuation: in cases of street or occasional sale, invoking the proportionality clause of art. 274.3 CP to redirect the criminal response to a fine or community service.

In this area, the settled case law of the Supreme Court stresses the likelihood of confusion and the requirement of intent as the pillars of the offence, which leaves a technical margin for defence that should be worked from the outset of the proceedings, especially where there is civil liability and compensation for the trademark owner at stake.