“Industrial designs provide efficient protection of a restaurant’s aesthetics and atmosphere”
When opening a restaurant nowadays, it is important to offer cuisine that is gastronomically fashionable, but it is equally important to create an environment that impacts customers. This is due to the transformation that is currently underway in the restaurant business, in which the experience of eating now also includes entertainment, sensations and emotions.
If the atmosphere of the restaurant can make the customer feel relaxed and experience pleasure and joy it will, without a doubt, influence their perception and behavior when it comes to how they order.
When thinking of the design of a restaurant, try doing the following exercise: Enter the building. Imagine that you are in any restaurant in the world and sit down. Think about it from the customer’s perspective and see if you feel an inclination to stay at this restaurant.
This was the recent thought process of TABERNA VOLAPIE, in Spain, in an effort to think of a way to provide added value to their franchises. Their well thought out décor with traditional Spanish motifs and unique lamps made from antique water bottles is protected by the Spanish national design No. 0526169 “Taberna Volapié”.
Along with the setting comes the product design. As it is often the case with Spanish products, it is common practice in the olive oil sector to make their bottles stand out by using attractive designs. We have to remember that Spain and Italy are known worldwide for the quality of their oils and for how they defend their designs against third parties.
How can I defend my industrial designs in Spain?
To defend the rights of an owner of an industrial design, several actions are possible, including both civil and criminal proceedings in accordance with the Spanish legal system.
You can file a civil suit: demanding the cessation of infringement of your rights; compensation for damages; the measures necessary to prevent the activity in violation of your rights from continuing; the destruction or transfer of the products that are the object of infringement, or grant of the same to the holder of the right; as well as the publication of the judgement decision at the expense of the offender.
Furthermore, in accordance with the provisions of Art. 53 and Art. 57, these civil proceedings are affected by a statute of limitations of five years from the day on which they were initiated.
According to Art. 55, whosoever manufactures or imports products that incorporate industrial designs without authorization are obligated to provide compensation for damages. Furthermore, in the case that other unauthorized acts of exploitation are carried out, those who are responsible for said acts shall be responsible for compensation, starting from when they are notified of the existence of the design.
This right can also be protected by copyright laws, apart from the protection of the aforementioned law. Art. 3 of the Royal Legislative Decree 1/1996 of 12 April (Consolidated text of the intellectual property law) states that the author’s rights are compatible with any industrial property rights that may exist in relation to the work.
The industrial design may be the object of legal transactions: it can be transmitted, it can be the object of a guarantee, of seizure, of a purchasing option or license, among others.
Invalidity and expiration of the industrial design.
Registering a design can be invalid in the case that a court determines that any of the causes of invalidity apply.
Any person, or any group representing manufactures, dealers or consumers may request invalidity if they are affected by the industrial design right. Invalidity can also be requested with respect to a prior right that is being violated, in which case the action of invalidity shall be carried out by the owner of the corresponding right.
If invalidity is established, the design was never valid, but the retroactive effect of this invalidity shall not affect contracts made before the determination of the invalidity, Law 20/2003 of 7 July on legal protection of industrial design.
On the other hand, expiration implies valid registration of the industrial design, but one which has not been renewed within the period of 5 years, or for which the rights have been waived by the owner, or because the owner of the design no longer meets with the conditions for their right to be registered.
Evaluation of EU legislation on design protection- Spain’s position.
The European Commission recently opened a public consultation procedure, the aim of which is to collect sufficient data and opinions of interested parties to use them for support in the evaluation of the Directive 98/71/EC of the European Parliament and of the Council, of 13 October 1998 on legal protection of designs and models (“Directive on designs and models”) of Regulation (EC) No. 6/2002 of the Council, of 12 December 2001, on community designs and models (“Regulation on community designs and models”) with the aim of determining to what point these legislative actions will work as intended and to what point they can continue to be considered suitable to their aims. This consultation will most likely conclude with a reform, if deemed necessary, of the aforementioned regulation with a large impact on the national legislation of industrial designs. Due to Spain’s importance in the field of industrial designs – it is the country with the third highest number of designs, behind Germany and Italy – we must make sure we continue along the same line of work and protection for design owners in Spain.