04/13/2016

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Royal Academy Law 17/2001 of 7 December, brands, established as preventive elements to gain access to the trademark registration both a series of absolute prohibitions (signs that are contrary to law, public order or good customs, which are misleading the public, for example on the nature, quality or geographical origin of the product or service(, etc.), as relative. The latter include the provisions in article 9(1). d, through which protects the social reasons of a legal person who before the date of filing or priority of the CTM application identifies a person other than the applicant in the course of trade. The CTM application must be identical or similar to these signs and in addition also must be identical or similar its scope of application. The combination of both factors must involve a potential risk of confusion in the public. To these effects, the holder of the trade name priority, shall prove the use or notorious knowledge of it in the whole of the national territory. Therefore we already have a preventive obstacle of the later trademark registration, which would be the notoriety of a previous social reason. But to know in what consists this circumstance, we define such indeterminate legal concept. If we accede to the definition given by the Royal Academy of the Spanish language, it is considered notorious, among other meanings, to what is public and known by all. This would imply that a notorious social reason reflect the presence of this sign in the minds of consumers, and as a result the target audience, would know the existence of a product or service coincides with the trade name of the company, identifying the same with the denomination used to rotate in the mercantile traffic. Therefore, where a social reason was qualified as notorious would demonstrate that it had...