Turn your ideas into a legal monopoly

In our firm we always say that the trademark registration process is "the least important thing", in the sense that it consists of filling out a form that is filed online at the registration office and that, although it can be done badly if you do not have sufficient knowledge, it is not too complex.

The value of hiring an industrial property lawyer. In our opinion, the best way to register a trademark is in the pre-registration phase and in the post-registration phase:

• In the previous phase, because it does not make sense to launch a product or service with a name without having first studied the viability of that name. Doing searches to check if that trademark (or a similar one) is already registered by a third party is essential to avoid problems in the future. For this we will need a lawyer specialized in industrial property, because doing the searches and interpreting the results is a very complex task.
• At the later stage, because most offices in the world do not act ex officio on trademark applications that resemble mine. This means that a trademark application identical or similar to an earlier one will only be refused by the office if the owner of the earlier mark files an opposition. In order to file an opposition, the application must have been previously detected. This is where brand monitoring. Industrial property lawyers have computer programs that allow us to detect applications for trademarks identical or similar to those we have under surveillance, in Spain and abroad.

The answer to this question depends fundamentally on two issues:

• If there are no trademarks already registered that are identical or similar to yours, a word registration (without logo) may provide slightly better protection than a figurative registration (with logo).
• If the logo is very original and very distinctive, it may be interesting to include it in the registration to also grant it protection.

Trademark registrations are territorial. This means that trademarks can be registered by country or by certain regions (for example, the European trademark, which covers all EU countries).

Registering a trademark worldwide is tremendously expensive and within the reach of very few multinationals.

Our recommendation is to register in those territories where you really have a current market, or potential in the short-medium term.

A patent is an industrial property figure that protects, for a maximum period of 20 years, inventions that are new, involve inventive step and have industrial application. An invention is new when it does not exist in the state of the art, that is, when its characteristics have not been made accessible to the public prior to the filing date; and it has inventive step when the proposed solution is not obvious to a person skilled in the art.

A utility model is an industrial property figure that protects, for a maximum period of 10 years, shorter than the patent, inventions that have a lower degree of inventive step, and that give an object or product a configuration, structure or composition from which some practically appreciable advantage results for its use or manufacture. In the case of utility models, the proposed solution must not be "very" obvious to a person skilled in the art.

Our legal system is governed by freedom of competition. In order for an idea, such as a business model, to be protected and monopolized exclusively by its owner, it must fall within one of the categories of intellectual and industrial property law (for example, a trademark, a patent, a design or a work subject to copyright).

A business model is not considered a patentable invention and, therefore, is excluded from protection. and, therefore, is excluded from protection. It is a different matter if there are elements within that business model that are protectable and monopolizable, for example: its name and logo (as trademarks), its software (as a copyrighted work), its technological developments provided they are new and have an inventive step (as a patent) or the aesthetic appearance of its products (as an industrial design).

The intellectual property and industrial property are two distinct branches of law, which have many similarities but also enormous differences.

We could say that both protect ideas and creations arising from the human intellect. However, intellectual property has, in general, a more artistic or cultural component, while industrial property has a more market (or "industrial", hence its name) projection.

• The intellectual property services protects works (literary texts, photographs, audiovisual and musical creations, etc.).
• The industrial property protectessentially, brands and trade names, patents y utility models, y industrial designs.

One of the main differences is that intellectual property rights are not born with registration, as is the case with the different types of industrial property (except for the unregistered design or the unregistered notorious trademark, which are the main exceptions).

Intellectual property rights arise from the moment of creation. It is usually registered in order to have proof in case of later conflicts (for example, plagiarism by a third party).

Industrial property rights, on the other hand, generally arise with registration.