Article 274 Spanish Criminal Code: Counterfeit Goods and Trade Mark Offences

Article 274 of the Spanish Criminal Code punishes the use, without the consent of the proprietor, of a sign identical or confusable with a registered trade mark. It distinguishes wholesale conduct, punished with one to four years, from retail sale, punished with six months to three years, and it deals separately with street or occasional selling, for which the court may substitute a fine of one to six months or community service. The provision is applied throughout the markets and seafronts of the province of Alicante, and the third paragraph is the one that resolves the great majority of those cases.

Wording of Article 274 of the Spanish Criminal Code

Elements of the offence

1. A trade mark registered and in force under the trade mark legislation, which the prosecution must prove by producing the registration certificate.
2. Knowledge of the registration by the accused. The provision makes this an express element, so it must be proved and not presumed.
3. A sign identical or confusable with the registered mark, on the same or similar products, services or activities.
4. An industrial or commercial purpose. Goods held for personal use, in quantities consistent with that use, fall outside the article.

Defence strategy

The reduced penalty for street selling. The second paragraph of paragraph 3 permits the court, having regard to the characteristics of the offender and the small economic benefit, to impose a fine or community service instead of imprisonment. It applies to the typical case of a vendor selling a handful of items on a promenade. The submission requires evidence of the accused’s personal and economic circumstances and a valuation of the goods that reflects what they could actually have been sold for, rather than the retail price of the genuine article, which is the figure the complainant invariably supplies.

Knowledge of the registration. This element is frequently assumed rather than proved. Where the accused acquired the goods from a wholesaler with an invoice, where the mark is not notorious, or where the accused is a recently arrived foreign national with limited literacy in Spanish, the defence contests knowledge of the registration and of the counterfeit character of the goods, producing the purchase documentation and the circumstances of the acquisition.

Confusability and the state of the goods. The offence requires a sign identical or confusable with the registered mark on the same or similar products. Goods bearing an evidently different sign, parodies, and goods on which the mark is absent or has been removed fall outside it. A comparative examination of the seized items against the registration is prepared, and it frequently shows that part of the seizure does not reproduce any registered sign at all, which reduces both the classification and the compensation.

Valuation, confiscation and settlement with the proprietor. The economic benefit obtained or obtainable governs both the possibility of the reduced penalty and the compensation. The defence contests the valuation methodology, since the loss to the proprietor is not the retail value of the genuine goods. Where the proprietor is willing to settle, an agreement covering the destruction of the goods and a modest payment ordinarily produces a discontinuance or the lightest available penalty.

• Intellectual and industrial property offences
• Spanish Criminal Code by article
• Article 801 LECrim: guilty plea at the duty court
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This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.