The primary sources of law and regulation relating to trade marks are national and European Union law as well as international treaties ratified by Spain. The relevant national statutes are the Spanish Trade Mark Act 17/2001 of 7 December, 2001 and Royal Decree No. 687/2002, of 12 July, 2002, approving the regulation for implementing the Spanish Trade Mark Act.
The European Regulations, applicable to Spain as a Member State of the European Union, are the Community Trade Mark Regulation No. 207/2009 and the Community Trade Mark Implementing Regulation No. 2868/95. However a new one, Regulation No. 2015/2424 shall enter into force on 23 March, 2016.
The main international treaties applicable in Spain are:
Last but not least, case law and doctrine are clarifying sources. Indeed, the case law of the Spanish Supreme Court, the Spanish Constitutional Court and the Court of Justice of the European Union complement the above when interpreting the applicable law provisions and regulations, and the doctrine of law experts can also be used for such interpretation purposes by the Spanish Courts.
The order of priority when a conflict arises is as follows:
Spanish law distinguishes between trade marks enjoying a standard degree of distinctiveness, well-known trademarks within the meaning of Article 6 bis of the Paris Convention, and registered trade marks enjoying reputation or fame.
Trade marks enjoying a standard degree of distinctiveness do not benefit from the special protection acknowledged to trade marks having an enhanced
distinctive character, and are therefore protected only against later trademarks for goods/services identical or similar to those for which they are registered.
A well-known trade mark within the meaning of Article 6 bis of the Paris Convention, even if not registered, can be opposed against the registration of a later trade mark or trade name application, while unregistered trade marks having only a standard or low degree of distinctiveness cannot. However, in the case of a well-known unregistered trade mark, the protection is limited to identical or similar goods and services. Moreover, proving that the unregistered trade mark was well known in Spain by the filing or priority date of the later application is a crucial condition.
Registered trade marks which enjoy either reputation or fame have an enhanced protection in Spain. In general, both of them enjoy a broader scope of protection and can successfully be opposed and/or challenge third parties registered or unregistered trade marks and trade names, which cover or are used in connection with goods and/or services similar or different from those for which the reputed/famous trademark, respectively, is registered, provided that the use of the later mark, without due cause, may take an unfair advantage from the reputation/fame of the earlier trade mark (free-riding) or cause a detriment to it (dilution, blurring or tarnishment).
Reputed trade marks are those which are considered generally known by the relevant sector of consumers to which the products or services are destined. Trade marks with fame are those with which the public in general is familiar.
The more reputed a trade mark is, the more different the products and services of a trade mark or trade name application can be and yet allow the owner to successfully oppose further applications. Likelihood of confusion is not a requirement to apply the enhanced protection attributed to reputed/famous registered trade marks.
Trade marks belonging to the "luxury industry" do not enjoy per se a broader range of protection, apart from that provided by law for standard trade marks, whether well known, reputed or famous. However, very often the "aura of luxury" surrounding these trade marks plays a positive role when it comes to successfully enforcing them, actually granting them a de facto broader and stronger protection.
The positive effect of this almost psychological effect is often seen both among trade mark examiners and Judges' decisions leading to a successful outcome for the luxury industry trade mark owner.
In order to achieve an enhanced broader protection for reputed or famous trade marks, it must be proved that they are generally known by the relevant sector of consumers to which those products or services are destined, or that they are familiar to all the public in general (of any market sector), respectively.
Sufficient proof of either of these two categories may include many kinds of evidence that can be proposed and are usually admitted by the Spanish Patent and Trademark Office (SPTO) and the Spanish Courts. In this respect, the most significant material which can be submitted includes: oral testimony, affidavits, expert evidence, surveys amongst consumers, documentary evidence such as advertisements, sales data and market share, geographical scope and duration of use, marketing activities, advertising data investments, promotional material, advertising of any kind, references on Google or other search engines and in social media, certificates issued by chambers of commerce or well-known, famous and/or reputed trade marks associations, as well as independent published rankings of trade marks, among others. Case law precedents are also useful where prior decisions have acknowledged the reputation or fame of the concerned trade mark, although these judgments are not binding (neither for the SPTO or the Courts).
There is not a specific test or threshold that must be reached to establish that a trade mark is entitled to broader protection because it is reputed or famous. This is up to the Examiner's or Judge's interpretation, based on the analysis of evidence submitted by the trade mark owner and the arguments of both the plaintiff/opponent and defendant/applicant.
In Spain, a trade mark can be enforced against a domain name, a trade name and any other distinctive sign, as well as against company names and domain names. Enforcing a trade mark against its use as a metatag is possible too. However, not all use of a trade mark as a metatag is prohibited. The allegedly infringing use should be analyzed on a case by case basis, taking into account all the circumstances, to determine if it is fair use or indeed trade mark infringement.
A trade mark can be enforced against its unauthorized use in social media where such use is for commercial purposes, according to the general standards of trade mark infringement rules.
A trade mark can also be enforced against its unauthorized non-commercial use in social media, but generally only if such use is denigrating or detrimental to the trade mark or its owner. In any other case, use for non-commercial purposes in social media would be very difficult to successfully act against, since defense arguments concerning freedom of speech and freedom of expression would be tough to overcome.
Comparative advertising is permitted in Spain under some conditions. First of all, comparative advertising almost always requires that the trade mark is used in the market for the products or services of the competitor which are compared with the advertiser's. Accordingly, a trade mark cannot be enforced against such use, as long as it is done in accordance with the relevant regulations. Specifically, as set forth by the Unfair Competition Act, Law 3/1991, of 10 January, and the General Publicity Act, Law 34/1988, of 11 November, the compared goods or services must have the same purpose and satisfy the same needs, the comparison must be made in an objective manner between one or several essential characteristics of the products or services, which are relevant, verifiable and representative, including price. Furthermore, the depiction of the trade mark must be accurate and used in a similar way to the trade mark of the advertiser, making sure that any confusion or association risk is avoided. Among other measures, it is highly advisable to use an international symbol for trade marks, such as ® or TM, as appropriate, including a footnote indicating that the sign is a registered/unregistered trade mark and who owns it.
Last but not least, the comparison must not infringe any of the provisions of the Unfair Competition Act regarding deceiving acts, denigrating statements, or the risk of taking advantage of the reputation/fame of the third party trade mark.
A trade mark can be enforced against its unauthorized use in parody only if it causes risk of confusion or association, or is denigrating or damages its reputation/fame. This is hardly ever a black or white case, and there is almost always a great deal of uncertainty about the enforceability of the earlier trade mark rights, because of the subjective component of the analysis of the parody, the way in which the trade mark is used, directly or indirectly, fully, partially or amended, and last but not least the usually broad scope of the constitutional right of freedom of speech.
A trade mark owner can take action in Spain claiming both trade mark infringement and unfair competition for the same facts within the same action and proceeding. In general, both actions are fully compatible in one single action if the defendant/s is/are the same.
The principal sources of law and regulation relating to copyright are national and European Union law, and international treaties ratified by Spain. The relevant national statutes are the Spanish Intellectual Property Act, Royal Legislative Decree 1/1996, of 12 April 1996, and Royal Decree 281/2003 of 7 March 2003 approving the Regulation of the General Registry of Intellectual Property, as currently in force after several amendments.
The main international treaties applicable in Spain are:
The case law of the Spanish Supreme Court and the Court of Justice of the European Union complement the above when interpreting the applicable laws and regulations.
The order of priority when a conflict arises is as follows:
Original literary, artistic or scientific works are copyrightable under Spanish law, which provides an open list of examples of copyrightable works. This list includes books, speeches, conferences, music (with or without lyrics), dramatic plays and musicals, choreographies, theatrical plays, motion pictures and any audio-visual works, sculptures and paintings, drawings, cartoons, comics, projects, plans, architectural and engineering designs, graphics, maps and designs in connection with topography, geography and, in general, science, photographs and software.
Industrial designs are not expressly cited, but, since the indicated list is an open one, they are copyrightable provided that they are original artistic creations. A certain degree of originality and creativity is required, so not all industrial designs are copyrightable. Even though this is a crucial assessment with many legal implications, a certain degree of uncertainty is unavoidable, since it involves the individual and personal sensibility of the examiner or Judge.
The rights covered by copyright consist of both personal or moral and economical rights, which jointly grant full disposition and exclusive right to the exploitation of the work to the author, with no limitations except those established by the Law.
The moral rights of the author, which cannot be waived, are deciding if the work is to be divulged and in what way (right of disclosure), determining if such divulgation must be made in his/her name or under a pseudonym or sign (right of authorship), or anonymously, requiring the recognition of his/her authorship of the work, respect to the integrity of the work (right of integrity), preventing third parties from changing the work in a way which may be detrimental to his/ her lawful interest or his/her reputation (the interpretation of lawful interest is so broad in Spanish case law that, from a practical point of view, basically no modification whatsoever is possible without copyright infringement), altering the work respecting the rights that may have been acquired by third parties or the need to protect goods of cultural interest, and withdrawing the work from the market because of a change of the author's intellectual or moral convictions (right of withdrawal), after paying a compensation for the losses and damages to the owners of the exploitation rights.
If, later, the author decided to restart the exploitation of the work, he/she must offer the corresponding rights to the former owner of those rights and under terms and conditions similar to the original ones and, finally, the author shall have access to the only or rare piece of the work when it is under someone else's possession, so that enjoying the divulgation right is possible.
A legal entity acquires the economic rights in the works created by its employees only if this is expressly agreed in the employment agreements or, at the very least, if the object of the employment agreement includes creating such works. The same applies to consultants, so the rights will be whatever is set forth in the agreement between the entity and the consultant. The acquisition of the rights in the works created by its shareholders, directors, or suppliers would require an assignment agreement.
The requirements a copyright assignment agreement must satisfy in Spain to be valid are those of any other agreement under Spanish Law, namely free will expressed in writing with clear conveyance of the rights. The transfer of exploitation economic rights will be limited to those expressly indicated in the agreement, as well as its duration and territory. The assignment of rights will be considered as non-exclusive, unless the exclusivity is expressly agreed.
The main precautions to consider in drafting a license of copyright are to bear in mind that the global assignment of economic rights on future works is forbidden by law, commitments not to create any future work will be null and void, assignment of economic rights will not cover any divulgation methods inexistent or not yet discovered at the time of the assignment, even if this is expressly agreed. Lack of mention of the duration of the assignment will limit it to five years, and lack of mention of the geographical scope will limit the assignment to the country in which the assignment was made.
The author can never assign or waive his/her moral rights. Moral rights are inalienable.
Copyright protection lasts during all the author''s life plus seventy years after his/her death.
This seventy year period is calculated from the first day of the year after the year in which the author passes away. However, there are two moral or personal rights that are perpetual, namely, the right of acknowledgment of his/her authorship and the respect to the integrity of the work.
Copyright of authors who passed away before 7 December, 1987 has a longer protection, namely eighty years from the death of the author.
In Spain, it is possible to obtain a copyright registration. However this copyright registration is not required to create or enforce copyright, obtain damages for its infringement or any other relief. A copyright deposit is not required either; nevertheless both the registration or deposit and a copyright notice are highly advisable for enforcement purposes.
The consequences for failure to apply for and successfully complete a copyright deposit or registration are that the plaintiff will have to prove the copyright (namely its content, authorship and date of creation and/or divulgation) through other means of evidence different from the registration or deposit.
Failure to display a copyright notice is not crucial either, since the lack of such notice alone cannot be interpreted as a waiver to copyright, although it may be taken into account to decrease the compensation awarded to the author in case of infringement. The copyright notice together with an "all rights reserved" warning is still advisable, because it proves the awareness of third parties of those exclusive rights and, furthermore, it can be used as a principle of proof of authorship. However, if it is absent that does not have irreparable consequences in most cases.
Nonetheless, there is one exception to the above general principle: works and articles on current news divulged in the mass media can be reproduced, distributed and publicly communicated, if the works or articles were signed by the author but the reserve of rights notice was not included, simply by indicating the source and the author.
In order to prove that an industrial design is capable of protection by copyright the most advisable evidence is an expert opinion, although any other kinds of evidence may complement it.
Copyright infringement is assessed when sufficient substantial similarity exists between the two works. No actual copying is necessary to establish infringement. Proof of copying can, however, increase the economic compensation the infringer is condemned to pay the copyright owner. Furthermore, copying may also amount to or involve criminal responsibility.
Copyright can be enforced against a trade mark, a design, a patent, a domain name, a trade name, a pseudonym and any other intellectual property right.
Commercial use of copyright in social media can be enforced against, according to the general standards of copyright infringement rules.
Copyright can also be enforced against its unauthorized non-commercial use in social media, provided that such use is denigrating or abusive. In any other case, such use for non-commercial purpose in social media would be very difficult to successfully act against, since defense arguments of freedom of speech and expression would be quite difficult to overcome.
While use of a trade mark in comparative advertising is in general permitted in Spain (provided that it is done in accordance with the applicable rules and thus difficult to enforce a trade mark against it), use of copyright seems to be, in general, much easier to challenge when enforcing it, simply because its use does not seem to be necessary for the comparison of any goods or services. The need to identify the origin of the products or services allows the use of the trade mark, and it seems unlikely that a case may exist where use of copyright instead, or together, with the trade mark, could be considered acceptable under Spanish Law.
Furthermore, use of copyright in comparative advertising with other copyright, due to the nature of copyright, would be almost impossible when respecting the rules on comparative advertising, which must always focus on objective proven facts, not subjective opinions or impressions.
In general, copyright is difficult to enforce against its unauthorized use in parody because the Spanish Intellectual Property Act expressly admits such parody, provided it does not create a risk of confusion with the original work or damage to the work or its author. Again, this is hardly ever a black or white case. On the contrary, there is a great deal of uncertainty about the enforceability, because of the subjective component of the analysis of the parody. Therefore, enforcement of copyright against parody is in general far more difficult than enforcement of a trade mark against it.
The defences available to an alleged infringer, apart obviously from challenging the validity and/or ownership of the copyright, are the right to make a parody or quote parts of the copyright in order to analyse it, criticize it or comment on it, with educative or informative purpose. Fair use or fair dealing are practically inexistent defence strategies regarding copyright in Spain, and only the defences mentioned above can play a successful role in the defence of an alleged infringer and are usually interpreted within rather narrow limits by Spanish Courts, so all use made must be for those mentioned purposes and be reasonable, not abusive, proportional with the result sought and, obviously, indicating the source: both the work and its author.
Other exceptions are: the right to loan copyrighted works of public museums and libraries or other bodies with a general interest of cultural character or educative institutions within the Spanish educational system, the aforementioned right to reproduce, distribute and publicly communicate works and articles on current news divulged in the mass media indicating the source, if the author of the work or article signed it and the reserve of rights notice was not included, private copies or performances of works within the family circle (never intended for collective public use), and the right to reproduce, distribute and communicate freely by means of paintings, drawings, photographs and audio-visual means, works located permanently in parks, streets, squares and public spaces.
There are no grounds on which valid copyright can be deemed unenforceable, owing to any misconduct of the copyright holder. Only an express waive of the author to the exploitation rights so that the work becomes of free use can cause a partial unenforceability.
The time limit for bringing an infringement action is five years from the moment in which it could be taken. Usually the moment in which it could be taken is considered that when the copyright owner learnt about the infringement. However, a later time may also be admitted provided that for serious reasons beyond the copyright owner's control, the action could not have been taken despite the knowledge of its existence. Furthermore, an economic compensation can only be sought for the period of five years before the filing of the infringement action.
A copyright holder can take action claiming both copyright infringement and design infringement and/or unfair competition for the same set of facts in one single legal action and Court proceeding, provided the defendant/s is/are the same.
In Spain, the principal sources of law and regulations relating to designs are national and European Union law, as well as international treaties ratified by Spain.
Spanish designs are protected by the Spanish Act for the legal protection of Industrial Designs, Law 20/2003, of 7 July 2003, and Community designs by the Council Regulation (EC) No 6/2002, of 12 December 2001, on Community designs.
International industrial designs are protected by the Hague Agreement constituted by three international treaties, the Geneva Act of 2 July 1999, the Hague Act of 28 November 1960 and the London Act of 2 June 1934, although this last one is frozen since 1 January 2010, so no new designation under this Act may have been or be recorded after that date.
The case law of the Spanish Supreme Court and the European Court of Justice complement the above when interpreting the applicable laws and regulations.
The order of priority when a conflict arises is as follows:
All kinds of products are protectable by way of registered or unregistered design.
Specifically, pursuant to the Spanish Design Act, a design can be the look a product has either in whole or a part of it, in particular the lines, borders, form, texture or materials of the product itself or its trade dress.
The products for which a design can be protected can be all kinds of industrial or artisan products, including, among others, pieces destined to be assembled into a complex product, the packaging, the trade dress, graphic symbols, and typographic characters, as well as a complex product, namely, a product composed by multiple replaceable components, which allow its assembly and disassembly.
The conditions that the owner must satisfy to obtain and/or enjoy rights on a valid registered or an unregistered design right are novelty and singular character of such design.
Indeed, the design must be new and thus no identical design must have been made available to the public before the date of filing of application for registration (or date of priority, if any) for national or registered Community designs, or, for unregistered Community designs, the date on which the unregistered design was made available to the public.
The design must also have individual character and the overall impression the design produces on the informed user must accordingly differ from the overall impression that is produced on such user by any prior design.
The requirements a design assignment agreement must satisfy in Spain to be valid are those of any other agreement under Spanish Law, namely, free will expressed in writing with a clear conveyance of the rights. Furthermore, in the designs created by employees or consultants the entity must have clearly indicated in the employment or consultancy agreement who the owner of the designs will be to avoid any doubts. However, for designs created by employees where creation is the subject of their duties or were expressly ordered by the entity, or for designs of consultants or suppliers who were hired specifically to make the design, it will be presumed that the right belongs to the entity, unless otherwise agreed between the parties. The acquisition of the rights in the works created by its shareholders or directors would require an assignment agreement, unless there was a previous agreement to create the design.
Strictly speaking the designer does not have moral rights on a design, so long as they cannot be considered copyrightable. However article 19 of the Spanish Industrial Designs Act and article 18 of the Community Regulation on Designs establish the right of the author of the design to have his/her name included in the application and registration in such condition.
Protection of a Spanish registered design can last up to a maximum of twenty five years from the application date, provided the maintenance fees are duly and timely paid.
Unregistered design protection lasts three years from its first divulgation in the European Union.
Design infringement is assessed in consideration of the general overall impression produced by the design, namely, if it is not different from the one produced by any other design which has been divulged before the filing or priority date of the design application.
No actual copying is necessary to establish infringement. Designs whose characteristics differ only in irrelevant elements will be considered identical.
The main differences between a registered and an unregistered design are basically the need to prove its authorship, date of creation and divulgation and a much shorter duration of legal protection of the latter.
A design can be enforced against a trade mark, another registered or unregistered design, a patent, a trade name, and other intellectual property rights.
Commercial use of a design in social media can also be enforced against according to the general standards of design infringement rules.
A design can also be enforced against its unauthorized use in social media if it is for commercial purposes. In the event of an unauthorized non-commercial use of a design, enforcement is also possible provided that the use is denigrating or detrimental. In any other case, such use for non-commercial purpose in social media would be very difficult to act against successfully, since defense arguments of freedom of speech and freedom of creation would be tough to overcome.
While use of a trade mark in comparative advertising is in general permitted in Spain, use of a design is easier to challenge when enforcing it, simply because its use does not seem to be strictly necessary. The need to identify the origin of the products or services allows the use of the trade mark in comparative advertising, while it would seem unlikely that a case existed where use of a design either alone, or together with the trade mark, may be considered acceptable under Spanish law, simply because it would be unnecessary for the comparison of the products or services.
Furthermore, use of a design in comparative advertising together with other design, due to the nature of designs, would be almost impossible to be done according to the rules on comparative advertising, which must always focus on objective proven facts.
In general a design is difficult to enforce against its unauthorized use in parody as long as it does not cause risk of confusion with the original work or damage to the work or its author. Once again, this is hardly ever a black or white case, but there is a great deal of uncertainty about the enforceability, because of the subjective component of the analysis of the parody. However enforcement of design against parody is in general more difficult than enforcement of a trade mark against parody, but not as hard as copyright.
The defence available to an alleged infringer is basically lack of sufficient similarity, apart obviously, from challenging the validity or ownership of the design for whatever legal reason.
No other grounds exist under which a valid design can be deemed unenforceable, and there is not any misconduct of the design holder that can cause such unenforceability.
The time limit for bringing an infringement action is five years from the moment in which it could be taken. Usually, the moment in which it could be taken is considered that when the design owner learnt about the infringement. However, a later time may also be admitted provided that, for reasons beyond the design owner's control, the action could not have been taken despite being aware of its existence. Furthermore, an economic compensation can only be sought for the period of five years before the filing of the infringement action.
A design holder can take action claiming both design infringement, copyright and unfair competition for the same set of facts in one single legal action and Court proceeding.
Product placement is permitted in Spain (by Law 7/2010, of 31 March, General Law on Audiovisual Communication), in motion pictures, short films, documentaries, television series, sports programs and entertainment programs, in exchange of a payment. Whenever no payment is agreed, but only the free supply of products or services, such as material help to the production or awards, the products or services must have a significant value. When the program is produced by the service supplier the public must be informed at the beginning and at the end of the program, and after advertising breaks too.
In other types of program, product placement is only permitted in exchange of free provision of the products or services, as well as economic help for the production or awards of the program.
Product placement in programs destined for children is expressly prohibited. Also certain products are not allowed for product placement, or for any other kind of advertising, such as cigarettes and any other tobacco products, pharmaceutical products, alcohol over 20º, or below 20º outside of certain times.
The brand owner can try to stop the communication by means of an injunction, but it would be very difficult to obtain it unless there are extraordinary circumstances and sufficient time for a Court to grant such injunction timely. In most cases, damages would be the only feasible remedy available.
The laws regarding right of publicity and privacy extend in general to legal entities and corporations and all corporations enjoy these rights of publicity and privacy without any condition.
It is generally possible to include specific clauses in agreements aimed at protecting the corporate image/reputation of one of the parties, especially if it has an "aura of luxury".
Namely, it is a common practice to include specific clauses in selective distribution agreements in order to protect the corporate image/reputation of one of the parties, such as prohibition to sell the products to re-sellers below a certain standard and maintain the distribution within high quality requirements. Other clauses, such as imposing a prohibition to sell below a certain price or to buy non original parts and components, enter into conflict with competition laws.
Liquidated damages or stipulated fine clauses for breach by a party of provisions protecting the reputation or corporate image of the other party are permissible in Spain. In order to ensure the enforceability of such clauses, the provisions must be unequivocal, so that the breach can be clearly proved based on objective facts. Furthermore, they can be strict, but it is advisable to keep them fair and reasonable to avoid a Judge's decision to decrease them for being abusively excessive, and always directly aimed at achieving the purpose of protecting the corporate image and reputation.
Spanish law recognizes the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity.
The principal sources of law and regulation relating to the right of publicity are national and European Union law, and international treaties ratified by Spain, namely the Spanish Constitution, the Spanish Publicity Act, Law 34/1988, of 11 November, the Unfair Competition Act, Law 3/1991, of 10 January, and the Organic Law 1/1982 of 5 May, for the civil protection of the right to honour, personal and family privacy and self-image.
The case law of the Spanish Supreme Court and the Court of Justice of the European Union complement the above when interpreting the applicable laws and regulations if such interpretation is needed.
The right of publicity is inherent to any individual, survives the death of the individual, and is transmissible mortis causa; the heirs of the deceased individual own those rights.
An individual cannot assign his/her right of publicity in whole or in part. However, an individual can license his/her right of publicity, either on an exclusive or non-exclusive basis.
The requirements necessary for an agreement for the license of the right of publicity to be valid in Spain are those of any other agreement under Spanish Law, namely, free will expressing clearly and unequivocally the licensed rights.
The main precautions to consider when drafting a license of the right of publicity are: determining precisely the scope of the license (both geographically and the kind of use), duration and causes of termination, within which, importantly, setting up the exact terms in the event of any dishonourable conduct damaging the public image of the individual. Thus, at the very least, a termination right for this cause should be established, together with compensation for the damages the licensee may suffer as a consequence of that detriment to the licensor's public image, if they affected the licensee.
The conditions under which a licensor can withdraw the consent to its use, apart from those stated in the license agreement, are difficult to determine because, in theory, the licensor's assignment of the right to publicity, which is mainly an economical part of his rights only, involves inevitably somehow his/ her constitutional rights to his/her own image and intimacy. Therefore, it is possible at any time due to the very special nature of these personal rights but, of course, the licensee could claim a compensation for the losses and damages that such unilateral withdrawal without any condition agreed in the agreement may cause the licensee.
The death of the licensor does not terminate the agreement, unless this was agreed by the parties as a termination cause. Thus the agreement binds the successors and they will take over in the agreements signed by the deceased. As a result of this the licensee would have to deal with the heirs.
The right of publicity expires eighty years from the death of the individual.
Standing to sue for a violation of the right of publicity corresponds to the individual or his/her successors. If the damage to the image of a deceased individual is serious and there are no successors, the public prosecutor may do so as well. An exclusive or even a non-exclusive licensee may have standing to sue depending on if the license agreement stated so and in what terms and conditions. However, this is a very personal right, so even if it was agreed between licensee and licensor, a Judge may require the individual to join the proceeding as co-plaintiff.
The right of publicity can be enforced against commercial use of that individual's name, image, likeness, or other unequivocal aspects of his/her identity, such as his/her voice. It would be more difficult to enforce it against any other aspects of his/her personality, but the actual chances of success of the enforcement would depend on such aspect/s being analysed on a case by case basis, and whether or not the public recognizes the identity of the individual.
It is not necessary to prove that that individual's name, image, likeness, or other unequivocal aspects of one's identity have a commercial value to obtain an injunction or other remedies for the unauthorized use.
Even though it is true that a commercial value is not necessary to achieve those goals, when such value can be assessed and it is significant, this may allow the individual to obtain a higher economic compensation for losses and damages, besides increasing the chances of an injunction being granted. In order to prove such commercial value, all kind of evidence may be produced and should be admitted by Spanish Courts, including oral testimony, affidavits, expert reports, or documentary evidence, among others.
The defences available to the alleged infringer are basically freedom of speech, freedom of information and expression, fair use, especially of a public figure image for informative purposes, and parody, with variable chances of success depending on the specific circumstances of the case and the kind of use made.