By Diego Ramos and Gonzalo Santos (Madrid)

Websites and online shops have become more than a simple marketplace. They are a worldwide showcase for a company’s products and, as such, part of a company’s brand image. This is why they need to be carefully protected.

Although websites are not specifically protected in Spain’s intellectual property legislation, these digital creations are not devoid of protection. In addition to the rights over HTML code, front-end elements can also be protected. If a site’s elements were to be considered as original when used or displayed together, the look and feel of the website would be protected as an artistic creation. Furthermore, the Spanish Patent and Trademark Office considers web designs, in certain cases, suitable for registration as Spanish industrial designs and/or as European Community designs, should they meet certain requirements. Even unregistered Community designs can be protected for three years after they have been made public inside the European Union, although with some exceptions. This is a very positive factor for websites, since it allows the protection of designs with a short life span, without the burden of registration.

Should a competitor use a substantially similar web layout, Spanish intellectual property legislation allows the owner of the copied webpage to exercise cease-and-desist actions and to claim damages. In the event that the copied website is registered as a Spanish industrial design or as a Community design, the Spanish Industrial Design Act would offer additional protection.

There is always a risk that the web design might not be considered original and/or not qualify as a Spanish or Community design. However, its owner would still be able to exercise some of the actions contained in Spanish unfair competition laws in certain circumstances (for example, cease and desist actions, as well as requesting damages). It is also possible to request that the court decision be published at the infringing company’s expense.

It must be noted that an infringement of these unfair competition laws can only occur when both websites are aimed at the Spanish market. This must be determined on a case-by-case basis, although there are some elements which can be used as guidance (for example, whether the website is in Spanish or uses a local “.es” domain). All of the aforementioned actions for unfair competition acts can also be filed jointly with actions for infringement of intellectual property and industrial design rights, should these be available.