Criminal Lawyers in Industrial Property Crimes

Offences against Industrial Property: Concept, Modalities and Penalties (Arts. 273-277 CP)

Offences against industrial property typified in Arts. 273-277 CP protect exclusive rights over distinctive signs (trademarks, trade names), technical creations (patents, utility models) and form creations (industrial designs) registered under national and European regulations. The protected legal interest is triple: the holder's exclusive right to the economic exploitation of their creation or sign, the integrity of the market against unfair competition through imitation, and the protection of consumers against products that may mislead about their origin or quality. Consolidated Supreme Court case-law has developed technical criteria on the typical elements: existence of valid registry title, conduct of imitation or unauthorised use, profit motive or industrial/commercial purposes, and knowledge of foreign ownership.

The methods of commission are diverse. Art. 273 CP sanctions the infringement of patent or utility model rights (manufacture, offer, commercialisation or import for industrial purposes of protected inventions). Art. 274 CP protects distinctive signs (trademarks, trade names): it punishes the manufacture, distribution or commercialisation for commercial or industrial purposes of products reproducing, imitating or using distinctive signs identical or confusable with those registered, without the holder's consent; includes the street vending modality (top manta) with specific lower penalty (6 months to 2 years). Art. 275 CP sanctions registered industrial designs. Art. 276 CP aggravates penalties when the benefit obtained is of special economic significance, the facts are of special seriousness due to the value of the produced objects, or an economically particularly important sector is affected. Arts. 278-280 CP protect business secrets and technical know-how.

The penalties are significant. The basic offence of Art. 274.1 CP carries 1 to 4 years prison and 12 to 24 months' fine. The street or occasional vending modality of Art. 274.3 CP is sanctioned with 6 months to 2 years prison. The aggravated types of Art. 276 CP may reach 2 to 6 years prison and 18 to 36 months' fine when the value of the counterfeit products or the author's benefit is of special economic significance. Civil liability ex delicto demands compensation to the holder for damages derived from the infringement, frequently quantified under the methods of Art. 43 of the Trademark Act (loss of earnings, benefits obtained by the infringer, hypothetical royalty) and, where appropriate, moral damage for the injury to prestige. The confiscation of counterfeit products, manufacturing tools and advertising instruments is usual, together with their destruction at the convict's expense. The criminal liability of the legal entity of Art. 31 bis CP is applicable when offences are committed by administrators or employees for the benefit of the entity.

The technical defense is built on four consolidated axes. First, the challenge of the registry title: when the trademark, patent or design whose infringement is claimed presents validity defects (lack of novelty, insufficient distinctiveness, generic descriptiveness, lapsing for non-use under Art. 39 of the Trademark Act), the criminal action loses its basis; the suspension of criminal proceedings by commercial prejudiciality is a relevant strategic route. Second, the absence of risk of confusion: the Supreme Court applies the "test of the reasonably informed and attentive average consumer"; when the compared signs, jointly assessed, do not generate effective confusion in the target public, the typicity of Art. 274 CP fails. Third, the exhaustion of trademark rights and parallel imports: consolidated European doctrine (CJEU) allows the commercialisation in the EEA of original products placed on the market by the holder or with their consent; the parallel import trader does not infringe the trademark. Fourth, the descriptive or fair referential use of Art. 37 of the Trademark Act (references to foreign trademarks to identify compatible products, spare parts, lawful comparisons in advertising).

In current forensic practice, proceedings against industrial property concentrate on five typical scenarios: counterfeiting of luxury products (bags, watches, perfumes, clothing), commercialisation of generic medicines before patent expiry, counterfeiting of consumer electronics and automotive spare parts, infringement of industrial designs in furniture and textiles, and massive online commercialisation of counterfeits on international marketplaces (Amazon, Aliexpress, Asian platforms). Organic Law 1/2025 on Justice Service Efficiency, the Act 17/2001 on Trademarks and its Regulation, the Act 11/1986 on Patents, the Act 1/2019 on Business Secrets transposing EU Directive 2016/943, the EU Regulation 2017/1001 on European Union Trademark and consolidated Supreme Court and CJEU case-law configure the normative framework. Cooperation with the Technological Investigation Brigade, the customs services and the brand holders orients prosecution. At Alonso Sala, with 15+ years' experience, we undertake technical defence of manufacturers, importers and distributors accused, articulating technical expert evidence, challenge of the registry title and risk-of-confusion analysis; we also act as private prosecution for trademark and patent holders with coordinated criminal-commercial procedural strategy.