Trade mark reputation in Portugal and Spain: Is harmonisation still in question on the tenth anniversary of the Trade mark Directive?

Abstract

The principle of speciality is one of the pillars on which trade mark protection systems are based. Contrary to the general rules, the legal exception to this principle, basically the reputation, confers on the owners of this type of trade marks exorbitant faculties to prevent third parties from registering identical or similar trade marks to their own, as well as using them without authorisation. In this article, a comparative law analysis is made of the national trade mark protection systems in Portugal and Spain from the civil-mercantile perspective, both countries being Member States of the European Union and considering Directive (EU) 2015/2436 the need to establish the same protection for registered trade marks among all of them. The study will focus on the similarities and differences between the selected national systems in establishing the exception to the principle mentioned, assessing whether the divergences are such as to affect the harmonization sought.