From the Commercial Law Department at Belzuz Abogados, S.L.P., in Madrid, as experts in intellectual property, we address in this article a key issue for any business: how intangible assets are protected and what happens when they enter the public domain.
Throughout this article, we will outline the regulatory framework applicable to intellectual property rights, the Spanish trade mark system and the legal scope of the public domain, with a commercial focus and practical recommendations.
1. Intellectual property: what it protects and how it is structured
Intellectual property protects original creations expressed in any medium or format, provided they are an intellectual creation of their author. The legal framework in Spain is set out in the Consolidated Text of the Intellectual Property Act, approved by Royal Legislative Decree 1/1996 of 12 April.
This system distinguishes between two key aspects: on the one hand, moral rights (linked to the author’s personality) and, on the other, economic rights (related to commercial exploitation). These two may come into conflict, for example, in the case of advertising campaigns, extracts from works or the reuse of content on social media.
From a business perspective, it is essential to identify the work, the author or rights holder (whether ownership lies with the author, stems from an assignment, relates to a commissioned work, or belongs to a third party), and the acts of exploitation intended to be carried out. In general terms, the law grants the rights holder exclusive rights to reproduction, distribution, public communication and adaptation, subject to limitations and exceptions.
2. Works, rights holders and limitations: key considerations for business use
In commercial practice, problems tend to arise at three stages: (i) when content is created for the business, (ii) when third-party content is purchased or licensed, and (iii) when existing material (files, photographs, texts, music, audiovisual material) is reused.
The TRLPI regulates both protected content and the conditions for its exploitation. For business use, it is advisable to check: whether authorisation exists, whether the scope of the licence covers the medium (digital, streaming, social media), whether it is geographically limited, and whether it covers the type of adaptation (e.g. adaptation, montage or editing).
It is also essential to distinguish between assignment/licensing and other mechanisms such as one-off authorisations. A common mistake is to assume that permission to use automatically implies broad rights for ongoing exploitation or for any format. In reality, there must be consistency between the contract and the specific act: the rights holder may grant a limited right, and any excess may give rise to liability.
Furthermore, the TRLPI provides for exceptions that permit certain uses without authorisation in specific circumstances (for example, for educational or critical purposes), always subject to specific conditions and whilst respecting the burden of proof and striking a balance with the public interest. For businesses, this calls for caution: if the use does not clearly fall within a legal exception, the risk of infringement increases.
3. Trade marks: function, registrability and protection
The trade mark fulfils a central function in the market: it identifies the commercial origin of goods or services and enables consumers to distinguish them. In Spain, the general regime is set out in the Law 17/2001 of 7 December on Trade Marks.
From a legal perspective, a trade mark may be word, figurative or combined, and may include other elements. However, not every sign is registrable: it must meet the requirements of distinctiveness and be free from prohibitions (for example, descriptive signs in certain terms, or incompatibilities with earlier rights).
From a commercial perspective, a trade mark acts as an investment tool: it protects reputational value, enables franchising and merchandising strategies, and reduces the risk of confusion. Therefore, when a company decides to create a trade name, a slogan or a logo for its expansion, it must analyse whether any prior rights exist and whether the sign has a realistic chance of being registered.
The law also provides for legal action against infringements and regulates protection against unauthorised use that may give rise to a risk of confusion. In this regard, coordination between commercial strategy and legal analysis is key: registration not only provides legal certainty but also serves as the basis for demanding cessation and, where appropriate, claiming compensation.
4. Public domain
The public domain is the result of a legal phenomenon: upon the expiry of economic intellectual property rights, the work enters a regime in which it may be used without the author’s (or rights holders’) authorisation for matters relating to that specific work.
Entry into the public domain is not automatic: it depends on the type of creation, the applicable term of protection and specific legal provisions regarding calculation, co-authorship and deaths. In general, the TRLPI, in line with European Union legislation and historical regulations, sets out rules on duration and calculation; therefore, any commercial reuse of ‘old material’ requires legal verification.
An important point: the public domain does not mean there are no rules. The company must check whether the material it intends to reuse is actually in the public domain within the relevant jurisdiction and whether the use is limited to the content of the original work. Furthermore, there may be additional layers of protection (for example, neighbouring rights of performers, protection of specific audiovisual content, or rights relating to the medium or specific edition, as the case may be).
5. Risks and best practice: how to manage intellectual property and trade marks in digital campaigns
In digital environments, legal risk tends to increase due to the speed of publication, the mass reuse of content and the lack of traceability regarding permissions. For a company, the key is not only to obtain a licence, but also to be able to demonstrate what was done, to what extent and under what conditions.
When a company publishes or promotes content (videos, images, music, texts, extracts, infographics, etc.), several risks may arise:
- Copyright infringement through unauthorised reproduction, public communication or adaptation.
- Misuse of apparently ‘free’ works: the work may be in the public domain, but the specific material or the version used may not be.
- Risks relating to neighbouring rights when audiovisual content includes protected elements.
- Disputes when content from platforms is used without verifying the actual licensing regime for the intended use.
In advertising, trademark risks may arise in less obvious ways:
- Use of trademarks or similar signs in campaigns, creative content, hashtags or metadata.
- Registration or use of trade names that may cause confusion with prior rights.
- Free-riding on another’s reputation (where the use seeks to benefit from a third party’s reputation).
For this reason, trademark analysis must be integrated into the creative process: it is not a ‘subsequent’ step, but a prerequisite for the viability of the launch.
If your company requires specialist advice on intellectual property, trade marks and the public domain, our team in the Commercial Law Department at Belzuz Abogados, S.L.P. can assist you.
Conclusion
Intellectual property, trade marks and the public domain form an essential legal triangle for any company that creates, exploits or reuses content and distinctive signs. In practice, the difference between a sound strategy and a legal problem often lies in the details: correctly identifying what is protected, who holds the title, what limits apply and for how long exclusivity is maintained.
Therefore, a proper understanding of the framework of the TRLPI (Royal Legislative Decree 1/1996), the Trademarks Act (Act 17/2001) and the rules on duration and entry into the public domain helps to prevent infringements, reduces exposure to claims and facilitates more efficient decision-making (from content production to the launch of campaigns or the registration of new brand assets). Furthermore, proper management enables compliance to be turned into a competitive advantage: fewer obstacles, greater contractual certainty and improved responsiveness to potential disputes.
At Belzuz Abogados, S.L.P. in Madrid, our Commercial Law Department specialises in intellectual property, trade marks and the legal management of intangible assets. If your company requires advice on operating with due diligence, particularly in digital or international contexts, or when reusing historical material, we can assist you with preventative analysis and the defence of your interests.
SPECIFIC FAQs
What is protected by intellectual property rights?
Original creations expressed in any medium or format are protected. This includes the author’s moral and economic rights.
Can a work in the public domain be used freely?
Generally speaking, if a work is in the public domain, authorisation from the copyright holder is not required for that work, but other relevant rights must be checked.
What role does the Trade Marks Act play in an advertising campaign?
The Act protects distinctive signs against uses that may cause a risk of confusion or unfair exploitation of reputation.
Does the fact that an image is ‘old’ guarantee that it is in the public domain?
No. Age alone is not sufficient: the applicable term of protection must be verified, and it must be established whether protection has indeed expired.
What risks are involved in reusing unlicensed content?
There may be claims of infringement of intellectual property rights and, in certain contexts, additional liabilities relating to unfair competition.
Can I register a name related to a work or character as a trade mark?
It depends: there may be prohibitions due to prior rights and issues of lawfulness. A legal analysis is required to avoid conflicts.
How can I reduce the legal risk when creating content for my company?
By implementing a process to verify ownership, licences and scope, as well as internal policies on creation and reuse.