On 27 March 2015, after no more than five years of the last reform, the Spanish Parliament passed a new reform of the Criminal Code which will presumably be into force in July 2015.  This reform includes a few important changes in the intellectual property field affecting, among other things, to the penalties and the criminal conducts based on the unauthorised use of trademarks. In short, the reform increases the criminal penalties as compared with the current law, and provide a clearer (?) structure in the definition of the criminal conducts. It also incorporates new procedural rules that will increase the effectivenes of the enforcement of intellectual property rights.

According to the new wording of the Criminal Code (Article 274), it shall be punished with the penalties of one to four years in prison and a fine of twelve to twenty four, whoever, with industrial or commercial purposes but without the consent of the owner of a registered trademark under the applicable trademark law (i.e. not extendable to mere used trademarks, even if they are well-known) and with knowlege of such registration (i.e. intent):

a) manufactures, produces or imports products that incorporate an identical or confusingly similar mark, or

b) offers, distributes or trades wholesale products or services incorporating or using an identical or confusingly similar mark, or store for any of those purposes, provided such products or services are identical or similar to the products or services for which the trademark is registered (is this "provided" meant to only affect this latter conducts or also manfufacturing, producing or importing as set out in a)? - readers welcome to comment).

The Criminal Code also shall punish with the penalties of six months to three years in prison whoever, with commercial or industrial purposes but without the consent of the trademark owner and with knowledge of such registration, offers, distributes or trades retail products or services incorporating or using an identical or confusingly similar mark, provided such products or services are identical or similar to the products or services for wich the trademark is registered. The same penalty will be imposed on whoever reproduces or imitates an identical or confusingly similar mark which is meant to be used in any of the conducts above described. (Again, readers' comments are welcome: this "confusingly similar" does not seem to be taken from the trademark civil law, does it?).

A third change is in the third comma in Article 274 Criminal Code. The peddling or occasional sale of those products will be punished with penalties of six months to two years of prison. However, in view of the characteristics of the offender and the low amount of revenue, the Judge may hand down the punishment of a fine to one to six months or community services during thirty one to sixty days, provided the unlawful act is not serious in terms of damages or of significant economic importance, the offender does not belong to a criminal organization or is under eighteen.

Other important changes related to the criminal procedural rules are set out in the new reform, such as the early destruction and judicial administration of the seized goods as well as the confiscation of ilicit goods even where the offender is or cannot be sentenced under the criminal law.