Safeguarding intellectual property (IP) can be the difference between falling behind or maintaining your edge in today’s competitive business environment, especially if you’re looking to expand your operations internationally. While Spain offers a robust legal framework for protecting and enforcing IP rights, navigating intellectual property law can be complex, particularly if your company is based elsewhere.
Before you hire in Spain and begin growing your team there, prepare yourself so that others can’t profit, claim ownership of, or infringe upon your inventions, designs, trademarks, copyrights, and trade secrets. Fail to protect your company’s IP rights and you could face legal disputes, loss of market share, and reputational damage.
Read our primer to learn more about protecting your company's IP rights and ownership in Spain. (Note: This guide is for informational purposes, and isn’t intended to provide legal advice).
1. NDAs are enforceable in Spain
A non-disclosure agreement (NDA) prohibits one or more parties from sharing proprietary or confidential information. As an employer, you would most likely use this agreement to protect your company’s trade secrets and other private information from competitors, binding your employees and contractors to confidentiality. NDAs may also be known as confidentiality agreements. It’s common for employees, contractors, consultants, prospective business partners, or partners of a merging company to sign NDAs.
Spanish courts consider NDAs enforceable. However, NDAs must meet certain requirements to be considered legitimate:
- NDAs must be reasonable. The terms of the NDA can’t place an undue burden on an individual to keep information confidential.
- NDAs must be specific, clearly defining the kind of information that's confidential and the time frame in which it can’t be disclosed.
- NDAs can’t be outside the public interest, meaning that illegal activity and other illicit activities can’t be covered by an NDA. Whistleblowers are always protected in Spain, regardless of whether they’ve signed an NDA.
However, NDAs don’t necessarily cover other types of intellectual property—meaning that an NDA does not guarantee you IP rights as an employer. More on that below.
2. Employers typically retain ownership over what’s created by their employees
Generally, inventions tend to belong to the employer if they’re created in the workplace by employees in the regular course of their job. This includes copyrights, designs, and other creations. Workers are only owed additional remuneration if the contribution clearly exceeds the job contract or expectations.
Some exceptions include:
- If a worker was hired to do research, which led to them creating an invention outside the bounds of their employment but only thanks to the knowledge acquired through the company. In that case, the employer decides whether to retain ownership and the right to use the invention versus allowing the employee to keep ownership. Whatever is decided, the worker should be financially compensated.
- If the worker creates the invention in their free time and using their own knowledge, then it’s outside the scope of the employer’s ownership and won’t fall under the employer’s ownership.
- If there’s a contract stating different terms.
It’s advisable to outline the terms of IP ownership in all of your employment contracts.
3. However, contractors own the copyright to their work unless you override this in a written agreement
Unlike with employer-employee relationships, external consultants and contractors are considered the owners, inventors, creators, and/or authors of the work, unless stated otherwise in their contract agreement.
Protect yourself with a strong written contract by including:
- Background on IP owned by each party before entering into work arrangement
- Any rules for IP generated during and within the work arrangement
- Any rules for IP that may be generated after the work arrangement ends
4. Spanish laws also protect trade secrets and IP
While NDAs are helpful for enforcing IP protection, Spain’s legal framework further protects IP rights. Spain is a member of the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO). Spain is also overseen by the European Union Intellectual Property Office (EUIPO), a decentralized EU agency which offers IP protection to businesses and individual creators. Registering a trademark with this European commission gives protection across member states, while a national trademark only guarantees protection in one member state. Still, because Spanish IP law aligns with other EU member states, European patents are typically enforceable in the country.
Spain is a part of many international treaties regarding intellectual property, including:
- The Madrid Agreement, also known as the WIPO Madrid Agreement Concerning the International Registration of Marks or the Madrid Agreement and Protocol for the International Registration of Trademarks. Under the Madrid System, you can file a single international trademark application and pay just one fee for protection in up to 130 countries.
- WIPO Berne Convention for the Protection of Literary and Artistic Works. This allows authors, musicians, painters, and other creators to control how their works are used in translation, performance, and reproduction rights.
- The Paris Convention, which applies to industrial property, including patents, trademarks, utility models, industrial designs, trade names, geographical indications, and service marks, as well as regulating unfair competition. Nearly 180 countries are a part of this international agreement.
- The Hague Agreement, an international registration system which offers industrial design protection in 76 designated member countries.
5. Filing for ownership gives you another level of legal protection
As in many other countries, Spain has several categories for protected works:
- Industrial property protection involves patents, trademarks, utility models, and design rights. Industrial property can be protected through trademark registration and trade names, patents and utility models, and industrial designs.
- Intellectual property typically refers to copyright and deals with economic or “moral” rights, which recognize the personal link between an author’s identity and their work. Moral rights cover the right to be identified as the author/creator of the work and the right to object to derogatory treatment of the work. While IP ownership automatically goes to the creator, you can assume rights via contract and can protect those rights through recording your copyright.
In Spain, industrial property rights are typically protected through a first-to-file system, meaning that ownership goes to the first person who applies for a patent. Therefore, it’s critical to register industrial property quickly. While IP is considered automatically protected upon creation, recording that property with the Intellectual Property Register can give additional protection and lower the burden of proof if your IP is violated.
Currently, there’s no formal system to register trade secrets in Spain. Therefore, non-disclosure and confidentiality agreements are typically used to control the disclosure of this kind of confidential information.
Frequently asked questions about IP law in Spain
Who owns IP in Spain: employee or employer?
Inventions typically belong to the employer if they’re created in the workplace by employees in the regular course of their job. However, contractors may own their IP unless there is a contractual duty to transfer it to their client.
Regardless if you’re hiring a full-time employee or a contractor in Spain, it’s wise to ensure all work contracts cover ownership of IP and an explanation of who is the rights holder. Note that, in Spain, moral rights can’t be waived by law. Any moral rights subsisting in the intellectual property rights remain with the employee regardless of any agreement. Waivers or transfer of moral rights aren’t enforceable.
You may include a Proprietary Information and Inventions Assignment Agreement (PIIA) as part of your work contracts—more on that below.
What do NDAs in Spain cover?
In general, NDAs apply to IP and protected assets— not only those that already exist at the time the contract is signed, but any and all protected assets. Spanish courts consider NDAs enforceable, as long as they meet requirements for being reasonable and of legitimate business interest.
What is an IP assignment agreement?
An IP assignment agreement, also known as an Intellectual Property Assignment Agreement or Patent Assignment Agreement, is a legal contract that transfers the ownership rights of intellectual property from one party (or assignor) to another. It is commonly used when a company or individual wants to acquire or transfer intellectual property rights, such as patents, copyrights, trademarks, or trade secrets.
Can you protect domain names in Spain?
In Spain, domain names are registered at Red.es, which is part of the Ministry of Industry, Tourism and Trade through the Secretary of State for Telecoms and the Information Society. Domain names can be used for as long as they are registered and can be protected on trademark grounds or under unfair competition laws.
In the case of cybersquatting—when someone outside of a company or brand registers their name with the aim of reselling it to that organization for profit—then you can seek a remedy in the form of canceling or transferring the domain. In some circumstances, you can seek compensation for damages.
Are there different IP rules for software companies?
Yes. When it comes to IP, Spain sides heavily with software companies. If employees create computer programs during the normal course of their employment, then the exploitation rights, source code, and object code all belong exclusively to the employer. (Unless, of course, a different arrangement is agreed upon via contract.)
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Rippling and its affiliates do not provide tax, accounting or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any related activities or transactions.