La acción y el procedimiento de nulidad administrativa en materia de marcas

Résumé

The lines that follow are dedicated to the administrative nullity of Spanish trademarks, incorporated into the Spanish trademark system on January 14, 2023 by section twenty-seven of article 1 of RDL 23/2018, of December 21, regarding the implementation transposition of directives (among others) regarding trademarks. The new legislation puts an end to judicial control of the validity of trademarks, as it was initially designed, by transferring the independent nullity proceedings to the administrative sphere and, in particular, by entrusting this control to the SPTO. The decision over the trademark nullity claimed by means of a counterclaim filed in infringement proceedings continues in the first instance in the jurisdictional field. This is linked to Organic Law 7/2022, of July 27, amending Organic Law 6/1985, of July 1, of the Judiciary, in matters of Commercial Courts, which attributes to the Provincial Courts in the civil order the jurisdiction over the challenge of the resolutions of the SPTO that put an end to files on recognition and maintenance of the protection of the modalities of industrial property that the Office manages, including those that decide files of invalidity of trademarks. In the pages below, I will exclusively address the action and procedure for administrative nullity of Spanish trademarks, and in particular the standing to and term of file the administrative nullity action, as well as the administrative nullity file, with special attention to its request, substantiation and resolution, the relationship between administrative annulment files and between these and civil processes that have the object of annulment or any other aspect that may lead to the cancellation of the trademark.