Royal Decree-Law 23/2018, of December 21, of transposition of Directives in the area of trademarks, rail transport and package travel and linked travel services

On December 27, 2018, Royal Decree-Law 23/2018, of December 21, transposing directives on trade marks, rail transport and package travel and related travel services is published in the BOE (Spanish Official Bulletin).

Title I, which comprises the first article, contains the modifications derived from the transposition of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015, on the approximation of the laws of the Member States in the matter of trade marks. As a novelty, the Royal Decree-Law increases the number of signs that are subject to registration to those that capable of representation in any appropriate form using generally available technology, and thus not necessarily by graphic means, as long as the representation offers satisfactory guarantees to that effect.

The distinction between “trade mark” or “well-known or renowned trade” name disappears and the concept of “infringement of trade mark” is extended to the use of the sign as a trade name or similar designation. Furthermore, the Royal Decree-Law streamlines the registration renewal procedure.

Likewise, it gives the trademark owner the power to prohibit not only the direct acts of infringement of the trade mark by third parties but also the preparatory acts in relation to the use of packing and other means and the power to exercise the rights thereof against goods coming from third countries without being released into free circulation.

As for the competence to declare the nullity and expiration, this is now shared by the Spanish Patent and Trademark Office (directly) and the Courts (indirectly).

Title II, which includes the second and third articles, contains the modifications derived from Directive 2012/34 / EU of the European Parliament and of the Council, of 21 November 2012 (modified by Directive 2016/2370, of December 14) establishing a single European railway area. It achieves the completion of the single European Area, which had already been applied to international freight transport and international passenger transport, by extending the principle of open access to domestic rail markets.

In view of the potential entry of new actors as infrastructure managers, the Royal Decree-Law incorporates the category of “vertically integrated undertaking” that allows an infrastructure manager and a transport services operator without a different legal personality to coexist in the same company. This implies the need to introduce requirements for the independence of the infrastructure manager and shielding it from possible influences or conflicts of interest with the railway undertakings. This Title also includes the concepts of reasonable margin of profit and alternative route.

The need to register the railway company license in a Registry is eliminated. In addition, the State Agency in charge of Railway Safety has the obligation to communicate without delay the resolution on the license without it being possible to understand the license not approved by administrative silence.

In another order, the Royal Decree-lay includes manoeuvres (previously auxiliary), those services to be supplied in essential service facilities, the supplies in fixed installations and the loading and unloading of merchandise among those essential services and establishes the obligation to inform about the prices and conditions of access to service facilities not managed by the infrastructure manager.

Title III, article four, contains the modifications derived from the transposition of Directive (EU) 2015/2302 of the European Parliament and of the Council, of 25 November 2015, related to package travel and linked travel arrangements.

Among the main modifications of the Royal Decree-Law, it is worth mentioning the modification of the scope of application and the harmonized definitions. The protected subject becomes now the “traveller”, which is a broader than the concept of “consumer”. In addition, the scope of the package is extended, and the concept of “linked travel arrangements” is introduced, establishing which combinations of services can be considered as linked travel services.

In addition, the Royal Decree-law reinforces the obligation to provide pre-contractual information to the traveller. The organisers may not unilaterally alter the contract unless: (i) they have reserved that right in the contract, (ii) the alterations are insignificant and (iii) the traveller has been informed in a clear and understandable manner.

The Royal Decree-Law grants the traveler the power to terminate the contract when the proposed changes significantly alter the main characteristics of the travel services with the right to a refund of the price in 14 calendar days. The traveller in such instance may be required to pay an appropriate and justifiable termination fee to the organiser, which must meet certain criteria. On the other hand, it regulates under which conditions the price can be increased.

The organisers and retailers are required to provide a security for the refund of all payments made by or on behalf of the travellers insofar as the relevant services are not performed as a consequence of the organiser’s insolvency. If the carriage of passengers is included in the package travel contract, organisers shall also provide security for the travellers’ repatriation.

Reduction of speed limit for passenger and freight transport vehicles

The Spanish Official Gazette (“Boletín Oficial del Estado-BOE”) dated December 29th 2018 published the Royal Decree 1514/2018 of December 28th 2018, which amends the General Traffic Regulation (Royal Decree 1428/2003 of November 21st) and whose objective is to establish a reduction of speed limit of certain vehicles in traffic on public conventional roads.

This amendment is part of the strategy pursued by the administration which aims at minimizing the number of road accidents since, as underscored by the R.D. 1514/2018, two particularly important facts must be considered in addressing this issue: on the one hand, 75 % of accidents involving fatalities occur on these conventional roads, and, on the other hand, the inadequate speed is the concurrent cause of 20 % of the accidents.

One of the objectives of this amendment is, among others, to establish new speed limits for passenger and freight transport vehicles. More specifically, in the case of trucks, it standardizes the speed limit in 80 km/h on conventional roads, a limit common in most of the EU countries. The general limitation of 90 km/h for buses is due to the ongoing law accident rate of these vehicles, however, those that are not equipped with seat belts will not be allowed to excess 80 km/h.

The Royal Decree will come into force one month after its publication.

Sale contracts with the Incoterm DAP

In view of several cases managed by our law firm in which the use of the international commercial term DAP (Delivered At Place) has been of special relevance, in this article we will try to shed light on its origin and application.

As a global business organization, the International Chamber of Commerce (ICC) intends to provide the necessary practical tools to activate and simplify world trade through the use of standard terms that allow defining the rights and obligations assumed by of the parties to a sales contract, including those referring to the transportation of the goods from origin to destination. Incoterms or International Commercial Terms affect some relevant aspects of the commercial relation (sales contract) between seller and buyer, but they do not delimit the entire contents of said contract.

European and Spanish courts, to a greater extent the Spanish mercantile courts specialized in transport law, have been aware of the reality of the Incoterms and this is reflected in many resolutions. An example of this is the Judgment of the Court of Justice (EU) C-87/2010 of June 9, 2011, when it states: “In order to check whether the place of delivery is determined ‘according to the contract’, the national jurisdictional body that has knowledge of the matter must take into account all the terms and all the relevant clauses of said contract that clearly designate said place, including the terms and clauses generally recognized and enshrined by international commercial uses, such as Incoterms elaborated by the International Chamber of Commerce.”

DAP is one of the last terms incorporated in the publication “Incoterms 2010” issued by the ICC and, together with the term DAT, it replaces the previous DAF, DEQ, DDU and DES in order to adjust adequately to the current logistic reality. Consequently, as of 1st of January of 2011, date of entry into force of the aforementioned publication, the ICC reduced the Incoterms in use to eleven.

When the parties of a sales contract arrange the inclusion of the term DAP, they essentially agree, among other rights and obligations, that the seller-exporter will comply with its obligations by making available the cargo to the buyer-importer ready for unloading in the used means of transport  at the destination agreed in the contract; the buyer shall therefore be responsible for all expenses associated with the unloading of the merchandise from the means of transport used until destination, as well as for its clearance for importation. Since the seller will assume the organization and materialization of the transport to the place of destination agreed in the contract, he should make sure that this concrete place is duly specified in the sales contract since he runs with the risks of the cargo up to that point. Therefore, buying under DAP conditions will imply a lower risk for the buyer.

The DAP Incoterm is a multimodal term, which means that it can be used regardless of the means of transport used; therefore, its use is justified whether the goods are transported by road, sea, rail or air.

The knowledge and proper use of the terms of international trade is an indispensable part in international sales contracts and increasingly in those of national scope, since their national use has been extended for the benefit of transactions. It is a reality that has been gaining strength since the entry into force of the “Incoterms 2010”.

In short, receiving adequate advice at the time of closing and drafting sale contracts in relation to the Incoterms that best suit the needs of the parties, as well as in relation to the other relevant aspects to be agreed, is essential to protect the position of our clients and achieve the good end of any commercial transaction.

Judgment C-88/17 of 11 July 2018 of the CJEU

Judgment C-88/17 of 11 July 2018 of the CJEU has confirmed that in a transport contract that has several stages and that is carried out by a number of means of transport, both the place of origin and the place of delivery of the goods constitute places where the transport services are provided ensuring a close link between the contract of carriage and the court having jurisdiction. Consequently, and pursuant to Article 5.1.b) of Regulation No. 44/2001, in force at the time of the facts, the plaintiff may choose to place the claim by reason of said contract in one or another jurisdiction.

 

This decision follows the same line of interpretation as judgment C-204/08 of 9 July 2009 (Rehder) issued in the framework of an air transport contract.

Inspection of cargo securing on trucks, clarification by Directorate General of Traffic (DGT)

 

On 17th April 2018, we published a post about the entry into force of the Royal Decree no. 563/2017 related to the technical roadside inspections of the roadworthiness of commercial vehicles circulating in Spain. This article supplemented the previous post published on 13 June 2017 “Royal Decree n. 563/2017 of June 2nd 2017, “Technical Inspection of Commercial Vehicles”. Read more

Royal Decree 563/2017 on Technical Inspection of commercial vehicles, in force on May 20th 2018

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The Royal Decree (R.D.) nº 563/2017 incorporates into Spanish law the Directive 2014/47/EU of April 3rd 2014 on technical roadside inspection of commercial vehicles circulating in the EU, whose entry into force suspends the R.D. 957/2002, of September 13th, which regulates the technical roadside inspections of commercial vehicles that circulate on the Spanish territory, and the Order INT/316/2003 of February 13th on technical inspections of commercial vehicles.

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The validity of insurance clauses in case of failure to supervise the truck during transportation

In a judgment (number 590/2017) dated 7th November 2017, the Spanish Supreme Court has had the opportunity to clarify conflicting case law from different Courts of Appeals regarding the requirements for the validity of insurance clauses that exclude coverage in cargo theft matters when there has been a failure to keep a proper supervision of the truck or container during transportation.

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Royal Decree nº 563/2017 of June 2nd 2017 – Technical Inspection of Commercial Vehicles

In May 2014, the Directive 2014/47/EU of the European Parliament and the Council, of April 3rd 2014, on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the EU came into force. This Directive updates the regulation of the technical roadside inspections by establishing the minimal requirements for all Member States, in order to improve road safety conditions. The contents of the aforementioned Directive have been incorporated into the Spanish legislation the recently enacted by Royal Decree nº 563/2017 of June 2nd

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Breaking the limitation in transport matters, once again

20161027_121043Article 1911 of the Spanish Civil Code establishes the general principle that debtors will be held accountable for their liabilities with all their present and future assets. Limitation of liability is an exceptional figure under Spanish law. For this reason, Spanish Courts are always reluctant to accept the limitation of liability principles established in international conventions in matters of transport and seek a way to avoid such limitation of liability. Read more

Elements to be analyzed in cargo theft

Among the different analyzed factors, a key element is to choose an adequate and safe resting area. And this is because the rest time during the carriage implies leaving the truck and the cargo unattended directly by the carrier. Consequently, the insurance companies and jurisprudence analyze the following basic points in order to determine whether the effective carrier took the necessary measures to prevent and avert any theft or robbery, taking into consideration the chosen resting area: Read more