Intellectual and Industrial Property Offences in Marbella

Intellectual property: the basic offense and "direct or indirect economic benefit"

Article 270.1 of the Criminal Code punishes anyone who, with the intent to obtain a direct or indirect economic benefit and to the detriment of a third party, reproduces, plagiarizes, distributes, publicly communicates, or otherwise economically exploits a literary, artistic or scientific work or performance without the authorization of its rightsholders. The 2015 reform replaced the classic "profit motive" with this broader formula, precisely in order to cover internet portals that, without charging directly for access to content, obtain an indirect benefit through advertising. Case law nevertheless requires that this benefit — direct or indirect — be real and established by objective evidence, and not merely hypothetical: the absence of any economic advantage, as occurs where files are exchanged within a closed group with no advertising or consideration of any kind, excludes criminal liability, without prejudice to any civil infringement of copyright.

The limits of the protected subject matter: the case of sports broadcasts

One of the issues with the greatest practical impact in recent years has been whether the unauthorized broadcasting of sporting events can constitute an offense against intellectual property. The Plenary Session of the Second Chamber of the Supreme Court resolved this question in the negative:

"...la consideración de los encuentros deportivos como 'obra' o... 'prestación' artística... debe ser rechazada, pues... no se puede interpretar que dichas secuencias... alcancen la protección que dispensa el artículo 270.1 CP."

(The court held that sporting events cannot be regarded as an artistic "work" or "performance," and that such footage does not qualify for the protection afforded by Article 270.1 of the Criminal Code.) This doctrine, reaffirmed in STS 581/2023, is decisive in the defense of platforms and individuals accused of broadcasting sporting events without authorization: since a football match does not constitute a literary, artistic or scientific work or performance within the meaning of Article 270.1 CP, such conduct falls outside the scope of this offense, without prejudice to its potential classification under the offense of unauthorized access to conditional-access services under Article 286 CP where its own elements are present — a distinct offense with different requirements of proof.

The aggravated offense (Art. 271 CP) and the mitigated subtype for street vending

Article 271 CP raises the penalty to up to six years' imprisonment where the benefit obtained has particular economic significance, where the facts are especially serious owing to the volume of works affected, where the offender belongs to an organization dedicated to such activities, or where minors are used. At the opposite end, Article 270.4 CP sets out a specific and more lenient regime for street or merely occasional distribution or marketing — the phenomenon known as "top manta" (unlicensed street vending) — with a penalty of six months to two years, which the judge may replace with a fine or community service depending on the offender's circumstances and the modest amount of the benefit obtained, provided none of the aggravating circumstances under Article 271 CP is present.

Industrial property: the trademark offense under Article 274 CP

Article 274 CP punishes anyone who, for industrial or commercial purposes and without the consent of the holder of an industrial property right registered under trademark legislation, manufactures, produces, imports, possesses, stores, offers, or markets products bearing a distinctive sign identical to or liable to be confused with that right. A recent Supreme Court ruling has clarified that, for this offense to apply, it is not necessary to establish a genuine risk of consumer confusion — a requirement proper to the purely civil protection of the trademark — since criminal protection, of a different nature and aimed at safeguarding the registered holder's exclusive right against counterfeiting, operates irrespective of whether the buyer knew they were purchasing a non-original product. This criterion considerably widens the scope of the criminal offense compared with purely civil protection, and requires the defense to concentrate its efforts on other elements of the offense: effectively establishing the trademark's registration under the applicable legislation and the industrial or commercial purpose of the conduct.

Street sale of counterfeit goods: the industrial "top manta"

As with intellectual property, Article 274.3 CP sets out a mitigated and specific regime for the street or occasional sale of products bearing counterfeit distinctive signs, with a considerably lower penalty than the basic offense and the possibility of substitution by a fine or community service. This phenomenon, of enormous practical relevance in major Spanish cities, calls for careful analysis of the seller's personal circumstances — often persons in a socially or migratorily vulnerable situation — and of the limited economic scale of the activity, matters we address systematically in order to obtain the most favorable classification available within the legal framework.