Against counterfeiters in Spain you can file a criminal complaint under Articles 270 to 277 of the Criminal Code or bring a civil action under the Trade Marks Act. Criminal IP enforcement in Spain lets police and an investigating judge search warehouses and dismantle networks; the civil route before the commercial courts gives you more control over injunctions, damages and the timetable. The choice matters, because once criminal proceedings begin, a civil lawsuit on the same facts is suspended until they end. This guide is for brand owners deciding how to respond to a counterfeiting case in Spain.
Key takeaways
- Manufacturing, importing or wholesaling counterfeits of a registered trade mark carries one to four years’ imprisonment; retail sale, six months to three years (Criminal Code, Article 274).
- Aggravated cases, such as organised groups or especially significant profits, rise to two to six years (Article 276).
- The civil route offers cessation, destruction, damages, a minimum penalty of EUR 600 per day of non-compliance and publication of the judgment (Trade Marks Act, Articles 41 to 44).
- Criminal and civil actions on the same facts cannot run in parallel: the civil case waits for the criminal one (Criminal Procedure Act, Articles 111 and 114).
- Civil claims now require a prior negotiation attempt (MASC); criminal complaints do not.
What does Spanish criminal law punish?
Chapter XI of the Criminal Code groups offences against intellectual property (Section 1), industrial property (Section 2) and the market (Section 3, which includes trade secrets). For trade marks, the offence requires industrial or commercial purposes, the absence of the owner’s consent, a sign identical or confusingly similar to a registered mark for the same or similar goods or services, and knowledge of the registration.
| Conduct | Penalty | Article |
|---|---|---|
| Manufacturing, producing or importing counterfeit goods; offering, distributing or selling them wholesale, or storing them for that purpose | 1 to 4 years’ imprisonment and a fine of 12 to 24 months | 274(1) |
| Retail sale or services under the infringing sign; reproducing the sign for these purposes | 6 months to 3 years | 274(2) |
| Street or occasional sales | 6 months to 2 years, or a fine or community service in minor cases | 274(3) |
| Aggravated cases: especially significant profit, especially serious facts, membership of an organisation, use of minors | 2 to 6 years, fine of 18 to 36 months and professional disqualification | 276 |
| Copyright piracy for direct or indirect financial gain | 6 months to 4 years and a fine | 270 |
| Patents, utility models and industrial designs | 6 months to 2 years and a fine | 273 |
| Taking or disclosing trade secrets | 2 to 5 years depending on the conduct | 278 and 279 |
Companies can also be criminally liable. Under Article 288, a company convicted of trade mark offences faces a fine of two to four times the profit obtained where the individual’s offence carries more than two years’ imprisonment. Article 287 requires a complaint by the injured party only for the Section 3 offences, such as trade secrets; trade mark and copyright offences can be prosecuted without one.
How does the civil route work?
Under Article 41 of the Trade Marks Act (Law 17/2001), the owner can seek cessation, damages, withdrawal of the goods from the market, seizure or destruction of the means used and destruction of the goods. Article 43 lets you choose how damages are calculated: lost profits or the infringer’s profits, or a lump sum at least equal to a reasonable royalty, plus harm to the mark’s reputation and investigation costs. When the court orders cessation, Article 44 sets a coercive penalty of at least EUR 600 for each day until the infringement stops.
Two limits apply. Civil actions prescribe five years after they could be brought, and damages only cover the five years before the claim (Article 45). And intermediaries other than manufacturers, importers or first sellers generally only owe damages after a sufficient warning, or if they acted negligently or the mark is well known (Article 42). The commercial courts (Juzgados de lo Mercantil) hear these cases, and the owner can request fact-finding measures, evidence preservation and interim measures before suing.
Since 3 April 2025, the civil claim also needs a prior attempt at negotiation under Organic Law 1/2025. Interim measures requested before the claim are exempt, and criminal matters are excluded altogether (Article 3(2)), which is one practical reason some owners now lean towards the criminal route for clear-cut counterfeiting.
Criminal or civil: how do the routes compare?
| Factor | Criminal route | Civil route |
|---|---|---|
| Who drives the case | Prosecutor and investigating judge; you can join as private prosecutor | You, as claimant |
| Investigative powers | Police searches, seizures and network investigations ordered by the judge | Fact-finding measures, access to evidence and preservation orders on request |
| Best suited to | Clear counterfeits, warehouses, organised distribution, unknown suppliers | Look-alikes, borderline confusion, competitors, licence disputes |
| Proof required | Intent and knowledge of the registration, beyond reasonable doubt | Infringement under the ordinary civil rules of evidence; damages depend on Articles 42 and 43 |
| Outcome | Conviction, confiscation and civil liability for the harm | Injunction, damages, destruction, daily penalty, publication |
| Prior negotiation (MASC) | Not required | Required, except for pre-action interim measures |
| Control over timing and settlement | Limited once the case is under way | High |
Can you bring criminal and civil actions at the same time?
Not on the same facts. Under the Criminal Procedure Act, every offence can give rise to a civil action for restitution and damages (Article 100). Both can be brought together in the criminal case, and if you only file the criminal action, the civil one is deemed included unless you expressly waive or reserve it (Article 112). While the criminal case is pending, the civil action cannot be pursued separately (Article 111), and any civil lawsuit on the same facts is suspended until a final criminal judgment (Article 114).
In practice, the decision is about sequence. If you file a complaint first, your damages claim usually travels with it. If you sue first and a criminal case opens later on the same facts, your civil case stops. Injured parties can join the criminal proceedings as a party before the charges are formalised (Article 110).
What this means for your business
- Profile the infringer: a street seller, an online shop, a distributor or an importer with a warehouse call for different tools.
- Check your titles: the criminal offence needs a registered mark covering the goods, and both routes need proof of ownership.
- Secure evidence first: test purchases, notarised captures and customs information before anyone is alerted.
- Choose the route on purpose: criminal for organised, clear-cut counterfeiting; civil when the question is confusion, compensation or a commercial relationship.
- Coordinate across borders: counterfeits sold in Spain often come through ports and suppliers that also serve Latin America and Africa.
If you need a case assessed, our anti-counterfeiting and IP enforcement team in Spain can review the evidence and recommend the route. Where registrations are the weak point, start with your trade mark portfolio in Spain and the EU.
Where companies get this wrong
- Filing a complaint without a plan for damages. If the civil action is not properly pursued within the criminal case, compensation can be an afterthought.
- Suing civilly, then filing a complaint. The civil case is suspended and months are lost.
- Weak proof of knowledge. Without evidence that the infringer knew of the registration, the criminal case can fail; a prior warning letter can help.
- Using the criminal route for look-alikes. Borderline confusion is better argued before specialised commercial courts.
- Unregistered or outdated marks. A mark that does not cover the goods sold leaves only weaker routes.
Frequently asked questions
Is selling counterfeit goods a crime in Spain?
Yes, when done for commercial purposes, without consent and with knowledge that the mark is registered. Article 274 of the Criminal Code punishes manufacturing, importing and wholesale with one to four years’ imprisonment and retail sale with six months to three years. Street or occasional sales carry six months to two years, with lighter penalties in minor cases.
Can I claim damages in a criminal case?
Yes. Under the Criminal Procedure Act, the civil action for damages is deemed included in the criminal case unless you waive it or reserve it for a separate civil lawsuit after the criminal judgment. You can also join the proceedings as a party to argue the amount. What you cannot do is pursue a separate civil claim on the same facts while the criminal case is pending.
How long do I have to act against a counterfeiter?
For the civil route, trade mark infringement actions prescribe five years after they could be brought, and damages only cover the five years before the claim, under Article 45 of the Trade Marks Act. Criminal limitation periods depend on the penalty for the offence. In practice, acting quickly matters more than the outer limit, because stock and evidence disappear.
Can IP Global Guard take on a counterfeiting case in Spain?
Yes. We assess the evidence and your registrations, recommend the criminal or civil route and coordinate the complaint or claim, the interim measures and any customs action, working directly where our professionals are qualified and otherwise through qualified local counsel. If the supply chain reaches Latin America or Africa, we coordinate correspondents there under the same strategy.
How IP Global Guard can help you stop counterfeiters
The right route depends on who the infringer is, what you can prove and what you want at the end: the goods off the market, compensation or both. IP Global Guard, the IP services line of META Channel Corporation Limited, handles enforcement from evidence to judgment with one strategy and one billing relationship across more than 25 jurisdictions; see our coverage in Europe, Latin America and Africa.
Send us what you know about the counterfeits, where they are sold and your registrations. We will recommend the route and the first steps. Contact our anti-counterfeiting team.
This article is general information, not legal advice, and does not replace an assessment of your specific case.
Sources
- BOE, Criminal Code, Organic Law 10/1995 (consolidated text), Articles 270, 273, 274, 276, 278, 279, 287 and 288
- BOE, Criminal Procedure Act of 1882 (consolidated text), Articles 100 and 110 to 114
- BOE, Law 17/2001 of 7 December on Trade Marks (consolidated text), Articles 41 to 45
- BOE, Organic Law 1/2025 of 2 January (in force 3 April 2025), Articles 3 and 5
