Criminal Lawyers for Industrial Property Crimes
Defense against charges of patent infringement, trademark counterfeiting, and trade secret theft.
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Industrial property crimes punish conduct that infringes exclusive rights over inventions (patents, utility models), distinctive signs (trademarks, trade names) and creations of form (industrial designs). Governed by Articles 273 to 277 of the Criminal Code, their correct classification requires the coordinated handling of criminal law and the specific industrial-property legislation: the Patents Act, the Trademarks Act and the Industrial Design Act, as well as Regulation (EU) 2017/1001 on the European Union trademark and the applicable international conventions.
Legal Framework: Arts. 273-277 CP
The Criminal Code contains several distinct types: Article 273 CP, punishing the use for industrial or commercial purposes of objects protected by a patent or utility model; Article 274 CP, punishing the use of distinctive signs identical or confusingly similar to a registered trademark or trade name; Article 275 CP, punishing infringements of designations of origin and geographical indications; and Article 276 CP, providing for aggravation where specific circumstances concur. The penalties run from imprisonment of 6 months to 4 years and a fine, aggravated in qualified cases.
Patents and Utility Models (Art. 273 CP)
Article 273 CP punishes whoever manufactures, imports, possesses, uses, offers or puts into commerce objects covered by a patent or utility model right, with knowledge of the registration and without the holder's consent. The penalty is 6 months to 2 years' imprisonment and a fine. Knowledge of the registration is required, which opens defense avenues based on mistake as to the existence of exclusive rights. The defense must analyse the specific extent of the registered right, the patent claims and possible non-infringement on technical grounds.
Trademarks and Distinctive Signs (Art. 274 CP)
Article 274 CP punishes the use, without the holder's consent, of distinctive signs identical or confusingly similar to a registered trademark or trade name, to distinguish the same or similar goods or services. It distinguishes several sub-types: the basic one (importation, manufacture, distribution, storage), the mitigated one for street or occasional sale, and those aggravated by specific circumstances. Case law assesses confusion globally, considering the phonetic, visual and conceptual aspects of the sign in question.
Mitigated Type (Art. 274.3 CP)
The third paragraph of Article 274 CP provides a mitigated type for street or occasional sale, with a fine of 1 to 6 months or community service of 31 to 60 days. This mitigation is frequently applied to the street sale of counterfeit goods and requires careful analysis of the circumstances of the case: the economic precariousness of the seller, the absence of a business organisation and the limited economic significance of the activity.
Evidential Issues
Evidence in these offences requires rigorous technical analysis: certification of the registration of the right at the Spanish Patent and Trademark Office (OEPM) or the European Union Intellectual Property Office (EUIPO); technical expert evidence on the specific infringement (comparative analysis of signs, technical examination of patents); quantification of the harm for civil-liability purposes; and analysis of the supply chain in distribution cases. The defense can challenge the registrability of the right, its actual infringement or the perpetrator's knowledge.
Defense Strategy
We build the defense around: analysis of the real scope of the registered right; discussion of the actual technical infringement; mistake as to the protected status of the object; application of the mitigated type for occasional sale; discussion of the intent to profit and of intent generally; distinction between civil and criminal infringement; challenge to the official technical expert evidence; assessment of mitigating factors; and, where appropriate, the negotiation of plea agreements. We act before the Investigating Courts, the Criminal Courts and the Provincial Courts, as well as before the Commercial Courts where parallel civil actions are present.
Penalties & Consequences: Industrial Property Crimes
| Type / Scenario | Criminal Penalty |
|---|---|
| Patents and utility models (Art. 273 CP) | Imprisonment of 6 months to 2 years and a fine for using patented objects without the holder's consent. |
| Trademarks (Art. 274 CP) | Imprisonment of 6 months to 3 years and a fine; commercial-scale conduct reaches the higher penalties. |
| Mitigated type (Art. 274.3 CP) | A fine of 1 to 6 months or community service of 31 to 60 days for occasional or street sale of counterfeit goods. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Defense Strategy: Industrial Property Crimes
Scope of the Registered Right
Analysing the actual extent of the registered right, the patent claims and possible non-infringement on technical grounds.<h3>Stages of the Proceedings and the Competent Court</h3><p>A prosecution for offences against industrial property usually begins with a complaint or private prosecution brought by the holder of the registered right, although it may also arise ex officio where the police or the tax authorities are involved in seizing goods. As a general rule, jurisdiction to investigate lies with the Investigating Court of the place where the acts were committed, and, given the penalties laid down in Articles 273 to 275 of the Criminal Code, the trial is normally heard by the Criminal Court. The investigative phase aims to establish the scope of the conduct, the volume of products affected and whether a valid registration exists at the Spanish Patent and Trademark Office.</p><p>One feature deserves attention: where trademark counterfeiting is intertwined with the import of goods through customs, a possible smuggling offence may also arise, set out in its own special statute (LO 12/1995) and not in the Criminal Code; both the industrial-property offence and the ordinary smuggling of counterfeit goods are tried before the ordinary criminal jurisdiction, the Audiencia Nacional being reserved for smuggling of defence material or dual-use goods (Art. 65 LOPJ). This duality of venues calls for an early analysis of the statement of facts, because the competent court shapes the procedural strategy, the time limits and the regime of precautionary measures. A diligent defence examines from the outset whether the smuggling classification is genuinely warranted or whether it has been overstated in order to shift jurisdiction.</p><h3>Limitation Period and the Calculation of Time Limits</h3><p>Limitation is one of the first matters to be checked in any defence concerning offences against industrial property. Article 131 of the Criminal Code sets the time limits according to the maximum penalty attached to the offence. The offences in Chapter XI carry custodial penalties whose upper limit does not exceed five years, which places them in the category of less serious offences. By direct application of the statutory rule, where the maximum custodial penalty is equal to or below five years the offence becomes time-barred after five years. For the mitigated form of street or occasional selling under Article 274.3 of the Criminal Code, whose penalty framework is lower, the limitation period remains five years, as it is likewise below that threshold.</p><p>The period begins to run on the day the punishable offence was committed; in conduct that extends over time, such as continued distribution, the starting point shifts to the moment the criminal activity ceased. Limitation is interrupted when the proceedings are effectively directed against the person presumed responsible, not by mere undetermined steps. The defence must therefore analyse in detail the dates of the events, the date of the complaint and the procedural moment at which the suspect was identified, because a rigorous calculation may reveal that the criminal action had already lapsed, which is a ground for dismissal or acquittal that may even be appreciated of the court's own motion.</p><h3>The Boundary with the Civil, Commercial and Competition Route</h3><p>Not every infringement of an industrial property right amounts to a criminal offence. The law provides its own civil and commercial channel, structured through the Trademark Act, the Patents Act and unfair competition rules, which allows the right holder to seek cessation of the conduct, compensation for damages and the withdrawal of infringing products from the market without resorting to criminal proceedings. Criminal law, as a measure of last resort, is reserved for the most serious intentional conduct, carried out for industrial or commercial purposes and with knowledge of another party's registration, in which there is genuine reproduction or imitation of identical or confusable signs.</p><p>This boundary is fertile ground for the defence. In many matters what really exists is a dispute over the scope of the registered right, a controversy about the confusability of the signs, or a question of exhaustion of trademark rights that belongs squarely to the commercial sphere. Where the debate is essentially about the validity, scope or interpretation of the registration, the proper course may be for that core issue to be resolved before the civil courts, so that the criminal process does not pre-empt a decision belonging to the specialised jurisdiction. Arguing the absence of intent, the lack of a real likelihood of confusion, or the purely contractual or competitive nature of the conflict can move the matter to its natural channel and avoid a disproportionate criminal response.</p><h3>Corporate Criminal Liability and Compliance Programmes</h3><p>Where the acts are committed within a company, in its name or on its behalf and for its direct or indirect benefit, the criminal liability of the legal person may be triggered under Article 31 bis of the Criminal Code. In the field of industrial property this becomes relevant in manufacturing, import or distribution structures, where the company may end up liable autonomously from the individuals who physically carried out the conduct. The legal person is exposed to fines and, where appropriate, to other consequences such as the suspension of activities, the closure of premises or a ban on carrying out certain operations.</p><p>The existence of a suitable compliance programme, adopted and effectively implemented before the events, operates as a mechanism for exemption from or mitigation of that liability. In industrial property matters, a robust prevention model includes supplier and supply-chain verification procedures, controls over trademark and patent rights affecting the products marketed, staff training and internal reporting channels. The company's defence must establish the reality and effectiveness of those controls, as well as any individual conduct that fraudulently circumvented the model. In addition, repairing the harm before trial, provided as a mitigating circumstance in Article 21.5 of the Criminal Code, together with the possibility of reaching a plea agreement and of seeking suspension of a custodial sentence where the legal requirements are met, are tools worth assessing early in order to minimise the consequences of the proceedings.</p>
Actual Technical Infringement
Discussing whether there was genuine infringement, contesting the official technical expert evidence.
Mistake as to Protection
Establishing mistake as to the protected status of the object or the existence of exclusive rights.
Mitigated Type & Civil vs. Criminal
Applying the mitigated type for occasional sale and discussing the boundary between civil and criminal infringement.
Economic Criminal Law in Spain: Tax Fraud, Money Laundering and Corporate Crimes
Economic criminal law encompasses the most severe financial penalties in the Spanish Criminal Code. Tax fraud over €120,000 (Art. 305 CP), money laundering (Art. 301 CP), and corporate crimes (Art. 290-297 CP) are complex offenses where defense requires a combination of criminal law expertise and deep accounting/financial knowledge.
Penalty Comparison: Economic Offenses
| Offense | Threshold | Penalty |
|---|---|---|
| Tax Fraud (Art. 305) | >€120,000 | 1 – 5 years + fine x6 |
| Aggravated Tax Fraud | >€600,000 | 2 – 6 years |
| Money Laundering (Art. 301) | Any amount | 6 months – 6 years |
| Aggravated Laundering | Organized/financial system | Up to 9 years |
| Corporate Crime (Art. 290) | Balance sheet falsification | 1 – 3 years |
| Punishable Insolvency (Art. 259) | Fraudulent bankruptcy | 1 – 4 years |
Key Defense Strategies
Tax Regularization Defense (Art. 305.4 CP)
Pay the full tax debt before charges are formally filed and the crime is extinguished. This is the most powerful complete defense in tax fraud cases.
Challenge the €120K Threshold
The tax authority's calculation method is often contestable. Independent forensic accounting can challenge the assessed figure below the criminal threshold.
Money Laundering 'Self-laundering' Issues
Spanish courts have debated whether the primary offender can also be convicted of laundering their own proceeds. Challenge the double jeopardy implications.
Corporate Crime: Harm to Company vs. Shareholders
Art. 295 corporate crimes require actual financial harm to the company or its members. Demonstrate that any loss was speculative or absent.
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