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Most counterfeiting cases are not brought against a counterfeiter. They are brought against the last link in the chain: the market-stall holder, the seasonal souvenir shop, the bazaar that bought three pallets from a wholesaler with an invoice, the bar that refilled brand bottles.
In brief. Article 274.2 of the Criminal Code punishes retail sale of goods bearing a registered trade mark; Article 274.3, street or occasional sale. The prosecution must prove knowledge of the registration. The realistic aim in many files is not acquittal but converting a request for imprisonment into an affordable fine, without prison and without a record that drags on for years.
Most counterfeiting matters that reach this firm are not brought by or against a counterfeiter. They concern the last link: the holder of a stall at the Wednesday market, the owner of a front-line souvenir shop open from May to October, the bazaar that bought three pallets of sunglasses from a wholesaler who issued an invoice, the restaurateur who refilled bottles of a gin brand with bulk product. None of them manufactured anything. Almost none imagined the matter could end in an investigating court.
Where several indications concur (price, place of purchase, previous interventions at the same stall), the claim of good-faith purchase loses force. That does not mean the defence is lost. It means the work moves to different ground: the purchase documentation, the supply chain, the client’s real position in that chain, the volume seized, the profit actually obtained and the valuation the prosecution attributes to the goods. In many files the result is not an acquittal but the conversion of a request for imprisonment into an affordable fine, without prison and without a lasting record. It is worth saying so from the start.
| Stage | What happens | Rule | The key point |
|---|---|---|---|
| Inspection | Seizure record, piece count and removal of the goods | Police report | Almost all avoidable damage happens in the first hours: right to a lawyer and to silence |
| Fast-track | Flagrant facts within Art. 795 LECrim limits | Arts. 795-801 LECrim | Negotiated judgment at the duty court with a one-third reduction (Art. 801) |
| Ordinary investigation | Wait for the trade-mark owner’s expert report and valuation | Art. 324 LECrim | The clock and its extensions become a defence argument to watch from day one |
| Valuation | Count and appraisal of the seized goods | Expert evidence | Valuing at the original’s retail price is routinely and successfully contested |
| Confiscation | The goods do not come back; early destruction with samples | Art. 127 CP | What is worth disputing is confiscation beyond the goods: vehicles, cash, balances |
| Civil liability | Compensation to the mark owner | Art. 272 CP · Law 17/2001 | The mark usually appears as private prosecutor and seeks costs |
| Corporate liability | The company can be prosecuted alongside the manager | Art. 288 CP | Real controls over the origin of the goods are defence material |
| Foreign residents | Effects on residence and nationality | Art. 89 CP | Over one year of imprisonment can be replaced by expulsion; a fine versus suspended prison is not only a criminal difference |
This overview is indicative and describes the ordinary course of these proceedings; the applicable outcome depends on the volume, the documentation and the specific circumstances of each case.
The sign must be registered and the seller must know it. Article 274 requires a mark registered under trade-mark law and knowledge of the registration, which the prosecution must prove; it is not presumed from mere notoriety, although notoriety is a powerful indication. Verifying the registration invoked, its validity and the classes for which it was granted is our first check, and it does not always come out as the prosecution expected. Identity or confusability is the second front: trend imitation is not an offence; reproduction of the sign is.
The count and the valuation are taken in the street, quickly and often by estimate. Checking the count against the pieces actually deposited and disputing the appraisal criterion has direct effects on the classification, because the mitigated bracket depends on it. The supply chain matters equally: an invoice, a delivery note and a bank transfer move the focus upwards and reinforce the error as to the lawfulness of the product; supplying that documentation early is far more effective than producing it at trial.
Article 274.3 itself obliges the court to weigh the characteristics of the offender: economic situation, absence of record, local ties, family responsibilities and the sporadic character of the sale are proven with documents, not adjectives. And what cannot be promised must be said: the goods will not be recovered, a conviction leaves a record, and where there are prior interventions or a located warehouse, the request for imprisonment is real and the defence aims at avoiding imprisonment, not denying the evident.
On the procedural frame, STS 747/2024 of 18 July (ECLI:ES:TS:2024:4260) clarifies the computation of the Article 324 LECrim investigation period and the costs regime of the private prosecution, both constant issues in these files. The citation serves the procedural framework, not the substantive offence, and must be verified at source before being relied upon; this page does not constitute legal advice.
Sellers with municipal authorisation who buy from local wholesalers and discover, after an inspection, that part of their stock bore registered marks. The most numerous profile, and the one that benefits most from good purchase documentation.
Souvenir shops, bazaars and beach kiosks open from Easter to October in Benidorm, Torrevieja, Santa Pola, El Campello or Jávea, with high supplier rotation and little control over origin.
Bars and restaurants: refilled brand bottles, a product different from the one announced, use of third-party signs and logos, and screening of pay content through unauthorised equipment. Liability frequently falls on the director of the operating company.
Companies with seized containers or warehouse stock, facing Article 274.1, asset investigation and corporate liability under Article 288.
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