As a consequence of the new regulation brought into force by Law 5/2010, the Criminal Code has undergone important amendments. The new regulation affects various code provisions, including the time bar statute for IP crimes.

The time bar is set out in the Criminal Code and specifies different time periods for the expiry of criminal liability depending on the severity of the crime. Before the amendments made by Law 5/2010, the time bar for crimes against IP rights was three years under normal circumstances and up to five years in cases where it could be proven that there were aggravating circumstances as set out in the Criminal Code. The recent amendments extend the minimum period of the IP crime statute of limitations from three to five years (without the need to prove aggravating circumstances).

The reason for raising the minimum period from three to five years is set out in the introduction of Law 5/2010:

"Rethinking the litigation system of the requirement as set out above also encourages a review of some aspects of its substantive regulation. The impunity due to the time barring of certain offences punished with minor sentences... which however can be complex and time consuming to investigate, has discredited the judicial system and been directly detrimental to the victims. It has therefore been decided to raise the minimum period of statute of limitations to five years, thus eliminating the three year term which up to now was what was used for those with prison sentences or professional disqualification of less than three years."

This change could be of great practical importance in the prosecution of IP crimes, the procedures for which are, in some cases, complex and time consuming. Therefore, the increase of the minimum period of the statute of limitations places IP right owners in a better position to try to avoid the impunity suffered due to delays in proceedings arising from the complexity of the case or the court's lack of activity.

The increase in the minimum period applies only to IP crimes and not to cases where, according to the new Criminal Code, the defendant's activity constitutes merely a misdemeanour. Rather, in such cases the time bar applicable is now limited to six months.

As a result of the changes, several uncertainties have arisen, despite the potential benefits of the amendments. First, it is clear that the new five-year period applies to those IP crimes committed after December 23 2010 (the date of entry in force of the new regulation). However, as far as the new regulation can be considered less favourable for the defendant, it remains to be seen whether such new period is applied by the criminal courts in proceedings that were pending at the time when the new regulation came into force.

Second, it also remains to be seen how the time bar statute will be applied in proceedings that were initially prosecuted as IP crimes, but that the criminal courts decide should be punished as a misdemeanour rather than an IP crime.

Until the new time bar regulations are implemented by the criminal courts, it will not be clear whether the increase in the minimum period of statute of limitations for IP crimes will have the positive impact that the legislature intended.

For further information on this topic please contact Sheila Martin at Grau & Angulo by telephone (+34 93 202 34 56), fax (+34 93 240 53 83) or email ([email protected]).