Access to Spanish courts is not subject to any restriction as such, apart from the rules concerning their jurisdiction and territorial competence. However, as is to be expected, it is vital for a non-resident foreigner to demonstrate that his right is protected in Spain.

In general, the Spanish Civil Code stresses that it does not countenance the abuse of law or, by extension, procedural abuse in any of its forms. To counter the possibility of procedural abuses, the Law on Civil Procedure (LEC) lays down various preventive mechanisms which normally take the form of requiring a security in order to provide, where necessary, for compensation for any injury that may be caused to the opposing party and even for payment of any costs incurred. This applies to those who want their appeal to be granted "in both effects" (Article 381 LEC) and to those seeking the provisional execution of a judgement which has been appealed against (Article 385 LEC) or whose annulment is sought (Article 1722). An identical solution is usually employed when the adoption of precautionary measures that may occasion injury is allowed, for example when preventive seizure occurs; in such a case the judge is authorized to order the requesting party to deposit a sufficient security to meet any damage and costs that may result. A litigant guilty of abuse will also be deterred by having to pay the costs and expenses of the case (including paying the fees of the opposing party's lawyer). This point is covered in general in Articles 523 LEC as regards first instance proceedings and in Articles 850, 875, 896 and 1715 LEC for appeals. The principle that emerges from these provisions is that costs are payable by the party whose claims have been totally rejected. More specifically, the provisions in the special proceedings for the enforcement of intellectual property rights (to which the foregoing generic measures apply in general) are the following: Regarding the adoption of urgent precautionary measures, Article 136 of the LPI makes it possible, before the decision is taken, for the judge to require the applicant to deposit an adequate security, excluding personal security, to cover the harm and costs that may result from adoption of the measure. Likewise the Patent Law (LP) - see Articles 129.4 on preliminary steps for the taking of evidence and 135 et seq. on the specific procedure for adopting precautionary measures - and the Trademark Law (LM), which lays down the general framework for applying the LP to trademark protection, provide for similar security in the specific enforcement procedures; the judicial body must require a "counter caution" or security from the plaintiff or applicant in order to meet the cost of any harm that may result from using the measure. Article 132 LP provides that the party affected by evidential activities may in any case demand that the requesting party pay for the costs and damage which these may have caused him, including loss of earnings. This is without prejudice to the general liability for damages which may be payable by the party requesting the measures, where such damages have taken place. With regard to criminal proceedings, in addition to the possibility of applying civil protection measures and their "counter-cautions", the Criminal Code envisages, with respect to persons making false or improper complaints, the possibility of such persons being prosecuted for making false or misleading accusations (Articles 456 and 457 of the Criminal Code).

The most effective measures are those relating to the interlocutory execution of judgements and precautionary measures (see the LPI, LP and LEC). With regard to precautionary measures, in addition to the general ones provided for in the general rules of the LEC there are the specific precautionary measures for the enforcement of intellectual property rights which have already been referred to in the replies by Spain to the Check-List of Issues on Enforcement. For copyright and related rights, Articles 133 et seq. of the LPI allow a right holder to make a written request that the competent judge should take urgent protection measures. There is no complete catalogue of measures allowing the judicial authority to order the precautionary measures (including the unnamed measures referred to in Article 1428 of the LEC) needed for the urgent protection of the rights concerned. Very short deadlines are laid down in order to prevent undue delays (urgent notification of the initial plea to the parties, immediate taking of evidence, decision given the day after the expiry of the ten day period following submission of the initial plea etc.), and special arrangements are made for preferential treatment with respect to the bulk of cases. With regard to patents, prior even to submission of the application the person with standing can demand the "checking of facts" referred to in Articles 129 and 130 of the LP. This consists of a series of investigative activities whose purpose is to assemble, via the judge, the factual elements needed to prove infringement of the patent and thereby to justify the demand for a conviction. Its implementation depends on an examination of its relevance and necessity and on respect for the proportionality principle. The LP expressly provides for two types of precautionary measure: preventive filing of the application in the Industrial Property Register (Articles 134.4 and 12.4) and a series of measures supporting the demand for a conviction, such as a cessation of infringement activities, the detention and storage of the object of the infringement and the provision of security in compensation for damage. Such measures may be requested before, after or together with the application. To avoid delays, deadlines are strict and short (no appeal may be made against admission of the evidential period, on which a ruling must be given in five days from submission of the application; appearance before the court must take place within six days from the end of that period and six days are allowed for adoption of the final decision). For trademarks, trade names and titles of establishments, the LM refers generally to the rules laid down in the LP, so that the foregoing remarks also apply here. In general, it should be added that, regarding the possibility of delays, Article 237 of the Organic Law on the Judiciary (LOPJ) accords the procedural initiative to the judicial body and to this end issues the necessary rulings. For civil proceedings, Article 307 of the LEC restates this principle stipulating that, unless otherwise provided by law, the judicial body will decide ex officio on the type of proceedings required and to this end will issue the necessary rulings. However, a distinction must be drawn between the civil process, which is governed by the principle whereby an action may be brought and proceedings continued at the instance of one party thereto, and the criminal process, whose hallmark is ex officio action, and where the judicial authorities, including the public prosecutor, who brings the criminal action in the case of offences affecting those rights, are required to expedite the proceedings as far as possible, although prosecution is generally dependent on the prior lodging of a complaint by the injured party or his legal representative. In civil proceedings, various responses are provided for where a party fails to act. An endeavour is made to prevent delays by setting deadlines (after which, if a party fails to act, certain of his rights are regarded as reduced and he will be assumed to have already answered, to be in default or to have confessed if he does not appear - see Articles 528 and 583 of the LEC) or by restricting the possibility of statements or appeals (e.g. with respect to decisions to admit evidence) etc. It is also possible for inaction by parties to cause the proceedings to be quashed on grounds of legal paralysis caused by the parties' failure to act within a certain period of time (Article 411 of the LEC on the lapsing of an application). The award of costs (i.e. the expenses resulting from the proceedings), including those due to the opposing side in case of recklessness, without the limitations laid down for ordinary grounds (Article 523 of the LEC, end), can also be regarded as useful in preventing deliberate delay where legal action is taken or an appeal brought with the object of prolonging the proceedings.

It is a general requirement under Spanish law for all judicial rulings to be based on some kind of proceedings, to be recorded in writing and to be justified or reasoned. Certain rulings may be issued orally on the spot or in advance but must always be immediately put in writing, including, as provided for in Article 247 of the Organic Law on the Judiciary, "the appropriate justification". More specifically, Article 248 of the same instrument, which is basically identical with the stipulations in Articles 369 to 372 of the LEC, provides for three types of judicial decisions, namely rulings, orders and judgements. Both orders and judgements are always reasoned and will contain in separate numbered paragraphs the factual background and the appropriate legal reasoning, together with the operative terms agreed on. Decisions relating only to the handling of proceedings must take the form of rulings and may be briefly justified without being subject to the strict formal requirements which apply to orders and judgements. The three types of decision, i.e. rulings, orders and judgements, must be signed by the judge or court which grants them, as well as by the Clerk of the Court, who acts as public notary. These decisions must be notified to the parties in order to make an appeal possible. To this end it is particularly necessary to state the grounds since these enable the party (and the court hearing the appeal) to understand the reasons which led the judge or court to adopt the decision. Knowing these is regarded as essential in order to prevent the parties from being left without a defence. In addition to the written records forming part of the physical basis of the proceeding, Article 265 of the LOPJ requires every court to maintain a sentence register which is kept in the custody of the appropriate Clerk of the Court. The register contains signed copies of all final judgements and orders of a similar nature and may be consulted by any interested party.

As regards final decisions of the Spanish Patent and Trademark Office, it should be indicated that all these are appealable under the administrative challenge procedure. Decisions can also be challenged indirectly in the civil courts by bringing a counter-claim for nullity of an industrial property title by means of an infringement suit. As regards the judicial authorities, there are no specific limitations on the ability of litigants to appeal against their procedural or final decisions in respect of intellectual property enforcement proceedings of a civil nature. The provisions on remedies under the general system of the LEC, as set out in Articles 376 to 406 of the latter law, are applicable generally. In the case of the general system of appeals, which distinguishes according to the judicial authority issuing the decision and the type of decision appealed against, specific limitations are set on challenges to decisions, with the basic aim of preventing time-wasting tactics. No appeal is possible, for example, against an order which declares the admissibility of a test case (Article 551 of the LEC) or against rulings admitting a piece of evidence (Article 567 of the LEC). This principle is applied in civil enforcement procedures by utilizing the general system in all matters which are not indicated as being specifically different. For example, regarding acceptance of the trial period for the adoption of precautionary measures under the procedure set out in the Patent Law, it is even clearly stated that according to Article 135.2 of that Law, no appeal is possible against the decision on that point. The general appeals regime is fully applicable in criminal proceedings in the same way as in civil proceedings. Without going into unnecessary detail, it can be said that this regime is the one set out in general terms in Articles 216 to 238 of the Law on Criminal Procedure (LECR) and, in connection with the so-called "accelerated" procedure (which will normally be used for intellectual-property offences), in Articles 787 and 795. The limitations on appeals within this framework are very few in number, although it must be stressed that it is impossible to appeal, except in regard to the personal situation of the accused, against an order for an oral trial as provided for in Article 790.7 of the LECR, although the party concerned may resubmit applications which were not dealt with by the trial body.

In general, Article 270 of the LOPJ stipulates that all parties involved, including any of them that could suffer injury as a result of the act notified, will be notified of all procedures, decisions, orders and judgements. This produces a system whereby the parties will always be able to find out, through notification, about the various legal steps being taken by the opposing party, third parties or the judicial body. The rules governing each of the above-mentioned proceedings stipulate that the judicial body must, as a first step, notify the defendant that the application has been submitted. He is given a copy of the application and of the accompanying documents so that he may defend himself properly, and is summoned to appear and answer the application or to make an appearance in court in order to defend his position (Articles 525 et seq., 680 et seq., 715 et seq. of the LEC and 26 et seq. of the Decree of 21 November 1952 on judicial hearings). Similar provisions are also laid down in the specific laws, which contain procedural rules to be observed in cases of enforcement of intellectual property rights (see Article 127.5 of the LP which states that the application must be notified to all patent right holders who are properly entered in the register so that they can appear in court and take part in the proceedings). Under the applicable legislation and the relevant doctrine of the Constitutional Court (TC), notification must be effected in such a way as to comply fully with its objective, namely to enable the addressee to be aware of the decision affecting him so that he may make the appropriate arrangements for the best possible defence of the disputed rights and interests. Special stress is placed on observance of all the legally established requirements so as to ensure, as far as possible, that the acts in question have been brought to the knowledge of the party concerned. Regarding the carrying out of notifications, a distinction must be drawn between those carried out on the premises of the judicial body and those that have to take place elsewhere. As a rule, notifications on the premises of the judicial body will take place when they are made to the lawyer of one of the parties (Articles 6 and 271 LEC). However, the lawyer may not be served with summonses which the law expressly requires to be served on the parties concerned in person or with those whose purpose is to ensure the compulsory appearance of these parties in court (Article 182 of the LECR). (a) Those that take place on the premises of the court or in the joint notification service coming under the senior members and presidents of the provincial courts will be effected through a reading of the decision by the clerk of the court or authorized official to the person concerned. At the same time he is given an exact copy of the decision even if he has not requested it, the main points being set out in the ruling to be issued (Articles 262 and 263 LEC, 166 LECR). If the party does not duly appear at the premises of the court in order to receive the notification, a distinction must be drawn between cases in which the person to be notified has a known address, and those in which he does not. (b) When the person to be notified has a known address, notification will take place there, for which purpose he must state it in the first document which he submits (Article 264 LEC). According to the LEC, home notification can be effected in two ways: by post or by serving a summons. The usual method of effecting notification away from the court's premises is registered post with acknowledgement of receipt; the clerk of the court vouches for the content of the envelope in the court orders, to which he subsequently attaches the receipt (Article 261 of the LEC - however, in criminal proceedings the rule is for notification to be carried out by a court official). In the case of a non-personal notification, the summons must be contained in the envelope. Postal notifications will be understood as having taken place on the date when the addressee, or whoever accepts it in the latter's absence, states on the acknowledgement of receipt that he has accepted it (Article 273 of the LEC). Not all decisions can be notified in this way; in civil proceedings, exceptions are made for those decisions whose addressee is or is due to be a party to the action and whose appearance in court depends on the notification in the case of a summons and in other cases stipulated by law or agreed to by the judge after weighing the circumstances (Article 261.IV of the LEC). In criminal proceedings, postal notification is not allowed for judgements and orders which increase penalties from detention to imprisonment and for those releasing prisoners (Article 166 of the LECR). Where there are special circumstances or a need for greater speed, it may be decided that notification will take place by telegraph or some other suitable form of communication, with the proviso that suitable steps must be taken to ensure reception of the notified act, which will be noted in the court records (Article 261.III of the LEC). - Where notification cannot be effected by any of the foregoing methods, it will be necessary to serve a summons on the addressee. If the latter is not at home, regardless of the cause and period of absence the summons will be served on the nearest relative, family member or employee over 16 years of age present at the address and, failing this, on the nearest neighbour or on the caretaker. Serving of the summons will be certified in the court records, which will note the name, status and occupation of the recipient, his relationship to the person to be notified and his duty, of which he will be aware, to deliver the summons as soon as the person concerned returns home or to inform him of it if he knows his whereabouts, with both the notifying party and the recipient of the notification signing the acknowledgement (Articles 268 of the LEC, 170 to 174 of the LECR; see in this connection judgements TC 39/1996, 275/1993, 195/1990, 72/1988, 22/1987). - When notification has to be effected outside the district covered by the judicial body, use will be made of letters rogatory, which will be accompanied by the corresponding summons (Articles 277 of the LEC and 177 of the LECR concerning the need to effect notification of foreigners with a known address by rogatory commission; judgement TC 16/1989 was delivered owing to the ineffectiveness of summons by public notice). (c) When there is no record of the address of the person to be notified or his whereabouts is unknown, this fact is formally recorded and notification carried out by public notice. This is done by inserting a suitable extract from the summons in the Official Gazette for the province concerned and, if considered necessary by the judge, in the Official Government Gazette, possibly also in the Official Journal for the Autonomous Community concerned (Articles 269 of the LEC, 178 and 784.3 of the LECR, and Article 236 of the LOPJ). (d) Finally, the LEC provides for another way of effecting notification when a litigant is declared to be in default or has failed to appear: notifications in the law courts. Notifications in the law courts are obviously fictitious and are issued simply in order to comply formally with the need to make the decisions issued during the proceedings known to the parties, however long the latter may remain absent. Once a litigant is in default, no further steps will be taken to find him; all rulings issued from then on and all summonses and subpoenas that must be served will be notified and executed in the law courts, except when otherwise provided (Article 281 of the LEC). During criminal proceedings, if the accused fails to appear, an order to appear is issued with a view to finding him and ensuring his appearance before the court or judge. These notifications and summonses will be effected by reading out the decisions which must be notified or in which a summons has been issued, in open court (Articles of the LEC in conjunction with Article 281.2 of the LOPJ). In accordance with the LOPJ, the following categories of notification may be distinguished: (A) Notifications proper Notifications proper are simply the communication of a judicial decision which does not lead directly or immediately to any action by litigants or third parties. By means of these notifications the legislator regulates the whole gamut of acts of communication (the various types of summonses). The writ of notification, which is delivered or served when it has to be effected away from the court's premises, must contain: (1) a statement of the nature and purpose of the proceeding and the full names of the litigants; (2) an exact copy of the decision to be notified; (3) the full name of the person who must be notified; (4) the date of despatch and signature of the notifying party (Articles 167 of the LECR and 267 of the LEC, which require the inclusion of certain further details). In addition, the notification of decisions must indicate whether such notification is enforceable or not and, where applicable, the appropriate remedies, the body before which any appeal must be brought and the time-frame allowed (Article 248.4 of the LOPJ). (B) "Citación" (summons) A "citación" is a communication whereby the litigants or third parties are notified of a judicial decision fixing a day and a time for the performance of a personal act by the party summonsed (e.g. trial act, taking of evidence). Summonses ("citaciones") of those who are or should be parties in the trial will be effected by writ, which is delivered to the person summonsed in place of the copy of the court order, this fact being noted in the record. Nevertheless, the 1992 reform laid down that summonses ("citaciones" and "emplazamientos") of parties in a trial who were represented by a lawyer or, in cases authorized by the law, by a barrister, should be effected through the representative (Article 271 of the LEC). This writ may be delivered by a court official at the address of the person summonsed or at the premises of the judicial body if he goes there to receive it. This can also be done by post, except when his appearance in court is dependent on the summons (Article 261.IV LEC). The writ of summons ("citación") must contain: (1) the name of the judge or court issuing the order, the date of the order and the matter concerned; (2) the full name of the person summonsed; (3) the purpose of the summons and the party who has requested it; (4) the place, day and time at which the person summonsed must appear; (5) a warning that failure to appear will make him liable for such damages as he might have incurred under the law, followed by the date and the signature of the clerk of the court (Articles 272 of the LEC, 175 of the LECR). (C) "Emplazamiento" (summons) An "emplazamiento" is a procedural act whereby the parties are notified of a decision setting a time-limit for carrying out a specified activity. An "emplazamiento" is effected in the same way as for a "citación", namely at the premises of the judicial body or by writ served at the address of the person summonsed. The problem arises when the address of the person concerned is unknown, in which case the summons must be effected by public notice. Unlike notifications, the writ of "emplazamiento" must, as is to be expected, instead of stating the day, time and place for appearance, specify the time-limit within which the summonsed person must appear or act, and the court before which he must appear or on whose orders he must act (Articles 274 of the LEC and 175.III of the LECR). (D) "Requerimiento" (summons) A "requerimiento" is a communication containing a special court order requiring one or other of the parties or a party concerned in the proceeding to perform a compulsory action. In a "requerimiento", the relevant court order is mentioned and the clerk of the court states that the summons has been issued; any reply made by the summonsed party must be admitted by entry in the acknowledgement (Articles 275 and 276 LEC).

The judge's duty to protect confidential information (oral and written) is implicit in his function and if he were to break it he would be committing an offence. As a general rule, Article 232.1 of the LOPJ stipulates that court proceedings shall be public, subject to the exceptions allowed by the procedural laws, but the second paragraph of this article provides that exceptionally, on grounds of public policy and the protection of rights and freedoms, judges and courts may limit the degree of openness and allow all or part of the proceedings to be conducted in secret, provided they give reasons for their decision. Article 130 of the LP on the prior collection of evidence states in paragraph 4 that the judge shall ensure that industrial secrecy is protected during proceedings. During this collection of evidence and with reference to Article 130.2 of the LP, if the judge considers that it is improbable that the material inspected is contributing to infringement of the patent, he will terminate this stage of the enquiry, will order the evidence (including the proceedings) to be treated separately and kept confidential and will inform the petitioner that it is inexpedient to acquaint him with the result of the enquiries. In addition to the foregoing, Article 131.1 of the LP states that no certificate or copies of the evidence may be issued other than those intended for the affected party. The purpose of this clause is to enable the applicant for such certificates and copies to start legal action. The applicant may use this documentation only for initiating such action and is prohibited from disclosing it or communicating it to third parties.

If a party refuses to provide information he may be accused of obstructing justice. If it is a civil case, the burden of proof will normally shift towards the party that cooperates with the law. Moreover, since the different infringers of an intellectual property right bear joint and several responsibility, it is unwise not to cooperate and it is therefore advisable to provide information about suppliers etc. In civil proceedings, the judge must admit or reject the evidence put forward by the parties. Once it is admitted, he possesses powers to order and require the use for judicial purposes of the documents in litigants' possession. Summonses ("requerimientos") issued by the judge may, in the event of repeated refusal and open resistance to obeying the court's order, contain a warning that the summonsed party may be charged with serious defiance of authority (Article 556 of the Criminal Code). A measurable possibility therefore exists that anyone refusing to supply documents, reports or material in his possession will be convicted for doing so if the legal and jurisprudential requirements are present. However, a different situation arises where the information is sought by questioning the supposed infringer under the evidential method known as "deposition". Article 597 of the LEC stipulates that every litigant must give evidence on oath when required by the opposing party. This is done in the deposition provided for in Article 578 of the LEC as a means of taking evidence. Deposition can also take place either as evidence put forward by the party or as a ruling postponing final judgment pending the production of more particular evidence, decided on ex officio by the judge. Nevertheless, if the party concerned persistently refuses to testify, fails to attend without just cause or testifies in an evasive or confused way, the only possibility allowed by the law is to regard him as self-confessed, which is equivalent to allowing it to be concluded that he recognises the facts alleged by the other party or admits his guilt.

The powers of the judicial authorities mentioned in the question may be exercised either during adoption of the measures for the securing of disputed goods provided for in the LEC, including unspecified measures (Article 1428 of the LEC), or in connection with the precautionary measures of a similar nature specifically laid down in the LPI, LP, LM and Unfair Competition Law. In accordance with the TRIPS Agreement, Member States may, if they wish, impose the limitations referred to in the question, but there is no provision on this point in the Spanish regulations on specific civil procedures for protecting intellectual property rights.

Prior to the trial, a possible way to provide the identification referred to in the question could be through Article 497.1 of the LEC. This enables the trial to be prepared through a request by the intending plaintiff for a sworn statement by the intended defendant (the presumed infringer) concerning a fact or facts relating to the status of other parties involved against whom action should be taken, although whether facts falling outside that status should also be covered would be debatable. Generally speaking, the correct evidential method for obtaining the information referred to in the question is deposition (already mentioned in the reply to question 9). As already said, such deposition takes place on proposal by a party if permitted by the judge or by an ex officio decision of the latter in the case of a ruling postponing final judgement during a limited judicial investigation activity not initiated by any of the litigants. The existence in Spanish civil proceedings of the "contribution from one party" principle means that taking evidence in this way is normally done on proposal by one of the parties. The ruling postponing final judgment pending the production of more particular evidence is a judicial power which should be used in moderation and restricted to cases where it is necessary because the data needed for assessment of the facts was not adequately proved by deposition on the initiative of a party. As already stated, moreover, Article 129 et seq. of the LP permits the judge, on the request of the person with standing to bring patent actions, to allow on an urgent basis the taking of evidence which may infringe the exclusive right granted by the patent. During the taking of evidence the judge may allow enquiries which will elicit information useful for this purpose to be carried out.

In Spain there exists the liability of public officials, as well as the patrimonial liability of the public authorities. The only exception to this principle concerns cases of force majeure. The Law on the Juridical Regime of Public Authorities and the Common Administrative Procedure deals in Section X with the liability of public authorities and of their personnel. In practice it is invoked extremely rarely and recourse is had to the subsidiary liability of the State in cases where the public services work badly. Article 41 concerns the liability of heads of administrative units with regard to the handling of proceedings. Disciplinary liability also exists in this connection, as laid down in Article 74. As provided in Article 139.1, only in cases of force majeure will private individuals whose goods or rights are damaged have no right to compensation. With regard to judges and magistrates, Article 411 of the LOPJ lays down as a general principle that they will be liable in the civil courts for damage caused by them when they are guilty of wrongdoing or negligence in the exercise of their functions. Their criminal responsibility is governed by Articles 405 to 410 of the same law. Under the general principles of criminal law, the deed has to be ascribable to them on the grounds of wrongdoing or negligence. Wrongdoing implies intent. Negligence implies the presence of inexcusable imprudence or ignorance. Good faith will normally rule out liability, except where the negligence or ignorance is so substantial as to be inexcusable, as is clear from Article 903 of the LEC. In any case, damage to any goods and rights as a result of judicial error, as well as damage resulting from an abnormal functioning of the administration of justice, will entitle all persons who have been harmed to compensation by the State on the conditions laid down in Section V - Articles 292 to 297 - of the LOPJ, provided that the damage is real, economically assessable and can be identified as affecting a person or group of persons.

In general, the adoption of provisional measures requires the existence of "fumus boni iuris", i.e. the appearance of good law, and of "periculum in mora", that is, the risk of damage to the applicant if the measure is not granted immediately. The appearance of good law must be assessed by the judge according to the merits of the application, which themselves depend on how much justice appears to i.e. with the applicant for the measure and on the simultaneous unlawfulness of the conduct of the person against whom the measure is requested. The danger to the applicant's interests of delaying agreement to the measure must not be based on the possibility of such delay jeopardizing the outcome of the final judgement in the principal case. The only consideration must be whether a continuation of the infringement might harm the applicant's interests given the difficulty of making good the pain and suffering and patrimonial damage being caused. In general, Spanish civil procedure is governed by the principle of weighing the evidence in conjunction with the residual evidence already assessed. In proceedings to enforce intellectual property rights the judge can estimate in each case according to that principle whether ownership of the right has been proved, but the factors which in each case caused that requirement to be regarded as proved can be determined only by examining specific cases and analysing the relevant judicial rulings. Although unable to reach full conclusions, judges can normally assess the initial credibility of the right with the use of a wide range of means, but the decisive evidence will preferably be in documentary form, for example: - In the case of copyright, submission of a certificate from the Intellectual Property Register in which such rights or documentary attestations by the World International Property Organization or other international organizations are entered in a declaratory (non-constitutive) form. Regarding the Spanish Intellectual Property Register, Article 140.3 of the LPI establishes a presumption "iuris tantum" - which admits counter-evidence - that the rights entered therein exist and belong to their holder in the form specified in the corresponding register entry. For example, in a case where public notification activities are suspended, such a presumption will exist when the applicant is presumed to be the holder of the right and the party carrying out such acts lacks authorization; - certificates of origin from the appropriate national and international bodies in the case of geographical indications; - no legal precedents exist with regard to industrial property; legal proceedings in connection with the infringement of industrial-property rights can be brought only by registered right holders. Proof of ownership can easily be provided by producing the title deed. Evidence of an infringement or imminent infringement depends on the circumstances of the case. It will normally be possible to collect evidence in advance.

A right holder or his legal representative may apply to the customs authorities (Customs and Excise Department) for an action agreement when he has reason to suspect that preparations are being made to import or export goods bearing counterfeit manufacturing or trademarks, or pirated goods. These action agreements are granted for a period of one year, which may be extended on request by the right holder. During the agreement's period of validity, notification is given to the right holder or his legal representative of all suspensions of release relating to the trademark concerning which action has been requested in order that the relevant checks may be made and the appropriate action taken within ten working days.

Prior to the action agreement the submission is required of a written liability undertaking whereby the right holder promises to meet his liability to the importer or exporter resulting from an act or omission on the part of the right holder or where it is subsequently found that the goods concerned are not counterfeit or pirated. He must likewise undertake to guarantee payment of the expenses that may result from keeping the goods under customs control. These requirements are laid down in Article 3(6) of Council Regulation (EC) No 3295/94 of 22 December 1994.

The right holder or his legal representative is informed by fax of the detention of the goods and of the customs office concerned. The customs will require the person inspecting the goods to produce a document proving that he is the right holder or his legal representative.

The following data will be supplied: - Value and quantity of goods; - name and address of the importer or exporter; - name and address of the consignee.

It has been agreed that the scope of these rules will exclude goods carried by passengers which by reason of their small quantity and low price are not intended for trade. The value of goods may in any case not exceed 175 ECU.

A glance at the penalties set out in the reply by Spain to question 24 on the Check-List of Issues on Enforcement provides confirmation of the deterrent nature of Spanish rules with respect to Article 61 of the TRIPS Agreement. As mentioned in that reply, penalties may amount to four years imprisonment both for offences regarding copyright and related rights and for industrial property offences. Provision is also made for other types of penalty, which may also be very severe. For example, the temporary or permanent closure of the infringer's business may be ordered and the infringer disqualified from following his occupation in connection with the offence for a period of up to five years.

No official statistics concerning the above details have been collected.

No official statistics concerning the above details have been collected. However, according to statistics obtained by the Public Prosecutor's Office for 1996, criminal proceedings initiated for offences against copyright and related rights totalled 322 and for industrial property offences 767.