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The issue of double protection has traditionally been addressed by giving continuity to the same protection conferred by a registered design under industrial property law but, once expired, under intellectual property law.
Our legal system foresees this accumulation of protection, but not unconditionally (as long as it is independent, cumulative and compatible with each other). This is understandable given the extraordinary disparity of conditions and requirements that exist between the two systems, not to mention the very different duration of the rights (which can be as long as a hundred years for intellectual property rights). In addition, this interpretation could lead to the dilution of industrial property, as warned by the Judgment of the Barcelona Court of Appeals (15th Section) no. 512/2020 of March 6 in the Farola Latina case, which will be commented in this article.
It seems that the only accumulation that can comply with such requirements is of different rights, based on an interpretation and application that, above all, avoids the repeated protection of the same exploitation rights once they have expired under the industrial property system.
The ruling in the farola latina case gives grounds to think that an alternative interpretation is possible and this could be based, for example, on the understanding that some rights derived from industrial property protection expire with the expiration of the registration of the right, such as the rights of production and mass marketing of the work as such, while moral rights and other economic exploitation rights subsist (for example, its use as an advertising claim for other products, as a motif for literary and visual works or merchandising).
It is in any case necessary to open a debate on the issue of double protection: taking into account the economic importance of the activity excluded by industrial property rights, it must be addressed whether the interpretation given to the issue by our courts involves infringing the legal regime as to its conditions and, obviously, in a singular way, as to the time limitation of such exclusivity.
You can read the complete article in Spanish in Diario la Ley
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