Security Rights in Intellectual Property in Spain

Abstract

With a few exceptions, Spanish law does not have specific rules relating to securities over IP and most of the issues concerning attachment and perfection requirements; priorities; and enforcement proceedings (both in an insolvency scenario and outside of one) must be resolved using the general rules relating to security rights. A chattel mortgage is the only type of security interest over IP rights that is explicitly recognized by Spanish law. Accordingly, the requirements for making a security interest effective against third parties; the priority to be given to the security interest; and the enforcement of this security interest are similar to those applied to the rest of the chattel covered by the mortgage, although some additional requirements must be met. The effectiveness of the security right against third parties and the priority of the secured creditor over competing claimants is conditional upon the registration of the mortgage in the Registry of Movable Goods. Registration in “special registries” (i.e. the Intellectual Property Registry and the Spanish Patent and Trademark Office) is merely for informative purposes. Outside of insolvency, enforcement of the mortgage must be undertaken through the public sale of the mortgaged rights, which is normally implemented through an auction procedure that is supervised by a judge or (subject to strict conditions) by a notary public. This chapter surveys and analyses the regulation of security interests over IP rights in Spain; identifies the main challenges posed by the current legislation; and attempts to better understand why IP rights are not seen as suitable collateral to be used within the framework of secured transactions.