moral damages for infringement of industrial property
Our legal system recognizes the right to compensation for moral damages when the industrial property rights are violated.
Thus Article 66.2 a) of the Patent Act, Article 43.2 a) of the Trademark Act and Article 55.2 c) of the Law on Legal Protection of Industrial Designs collect that “in the case of moral damage, proceed their compensation, not yet proven the existence of economic damage”.
Now, we interpret this statement in the following sense:
1.- There needs to be economic damage, so that it can estimate the existence of moral damage.
2.- The moral damage must be proven.
In fact, Article 13.1 a) Directive 2004/48 / EC did not require Member States to moral damages were compensable even the regulation of some countries some countries do not contemplate.
Under Spanish law, taken up the right to compensation for moral damages for violations of intellectual property both as an industrial. that right, It is based on the general clause of Article 1902 Civil Code.
The existence of daños morales environments intellectual property and copyright offer few doubts.
However, within the scope of industrial property, claims for moral damages may be more difficult to justify in many cases are not estimated. On the one hand the test is difficult and on the other, its hub on legal persons is complicated. In cases of estimating daños morales legal entities for violations of industrial property, their compensation is often used as a "catchall" to compensate for the difficulty of proof and in the interests of justice that the material may be legally questionable.
The daño moral It has the function of “compensate the victims of a situation of distress, anxiety or distress caused by the violation of one of its exclusive rights ". Is a personal injury type, affecting the rightholder.
These elements shall be subject to proof by the party who alleges (article 217 LEC) and they can not be used on a “punitive” by courts. That is the criterion of Directive 2004/48 / EC in recital 26 in fine rejects such employment.
And in Spanish law, punitive purpose has its source in criminal matters.
Moral damages should not be confused with damage to the prestige Design set out in Article 55 the LPDI: While damage to the prestige are materials, moral hazard refers to a person. The judgment of the Audiencia Provincial de Alicante (Community Trademark Court) of 19 July 2013, clear difference between:
"Now, good, damage smear is not the same as moral damages. First, that was requested, finds support in the art. 43.1 LM , when he says that the owner of the registration may also demand compensation for the damage caused to the prestige of the brand by the infringer, especially through defective products of the trademark unlawfully or inappropriate presentation of the market. The moral damage, however, It is expected in the second paragraph of this provision, in that said that “in the case of moral prejudice shall their compensation, yet proven the existence of economic damage”.
As for the proof of moral damage, include the judgment of the Commercial Court No. 2 Alicante, of 14 January 2015 indicating:
"With regard to pecuniary damage, It has not established that the perfumes of the defendants are of inferior quality or are defectively presented, as the worst of all presentations, in a supermarket, and since there is no likelihood of confusion or association by way of use of the signs, It is insufficient to generate a loss per se in accordance with Article 43.1 LM . in the same way in the proceedings not work any evidence to speak of that moral prejudice ".
In conclusion, It falls on the applicant the burden of proving the existence of moral damage. In industrial property claims, for violations of trademarks or industrial design, It can be risky to raise a claim for compensation for moral damages because if would not be granted that does not condemn the defendant to pay the costs, with the corresponding prejudice to the interests of our client.