Thursday, 17 April 2014

Is there such a thing as policy ‘space’ in TRIPS?

An actual space trip!
Answering this question has been the task of The Max Planck Institute for Innovation and Competition, together with a number of international patent scholars around the world – including ‘Latinos’ contributors such as Carlos Correa (Director of the Centre for Interdisciplinary Studies on Industrial Property and Economics Law, University of Buenos Aires (Argentina)) and Denis Borges Barbosa (Professor at the Catholic University of Rio de Janeiro (Brazil)). The “Declaration on Patent Protection: Regulatory Sovereignty under TRIPS” (“Patent Declaration” in short) can be assessed here.

Today the “Patent Declaration”, which indeed shows the policy space in TRIPS, is launched and we can participate and support it. According to Matthias Lamping (currently a Senior Research Fellow at the Max Planck Institute, who kindly passed the information to the iptango), “The Patent Declaration supplements our existing work on issues of international IP law, such as the Declaration on a ‘Balanced Interpretation of the Three-Step Test in Copyright Law’ (, which deals with limitations and exceptions to copyright protection, and the ‘Principles for Intellectual Property Provisions in Bilateral and Regional Agreements’ (”

Scanning through the ‘Patent Declaration’ it seems that actually international law leaves policy space for pursuing national interest. For example, the declaration explains that there exists flexibility for states to use compulsory licenses. Indeed, it asserts that this is “ensured by the fact that neither Article 31 of the TRIPS Agreement nor Article 5A of the Paris Convention contains any restriction with regard to the grounds on which a compulsory licence may be issued.”

Another point covered by the declaration is ‘transit’. The “Patent Declaration” goes on to say that “ Patent rights should not create barriers to legitimate trade (cf. Recital 1 of the Preamble and Article 41 of the TRIPS Agreement). Goods in transit cannot be deemed to infringe any of the exclusive rights that a patent normally confers if those goods are not destined for the market of the country where transit occurs. The territoriality principle applicable under patent law has not been overridden by the TRIPS Agreement (see, for example, Paragraph 6(i) in fine of the 30 August 2003 WTO decision on the ‘Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health’, concerning the export of pharmaceutical products produced or imported under a compulsory licence). Customs authorities and courts of the country of transit usually lack competence to determine whether goods in transit are infringing in the countries of origin or destination and cannot decide to grant preliminary or permanent injunctions in their respect.
The detention of goods by customs authorities based on claims of infringement can also violate the principle of freedom of transit enshrined in Article V of the GATT.”
In this point, I am sure we could hear some opinions from Brazil – you may remember several seizures of generic drugs in transit by the Dutch customs authorities in 2008 and 2009 which showed friction between the European Union legislation and the World Trade Organization.

I leave you with this piece of information in the hope that it would be of interest to you.

Thursday, 3 April 2014

Latin America Chambers of Commerce integrate cultural and creative sectors in their agenda

Chamber of Commerce of Latin America signed a memorandum of understanding to promote the Pacific Alliance in the business sector.

The Colombian Chamber of Commerce of Bogota (CCB) informs that the agreement was signed between the Chambers of Commerce of Bogota (Colombia), Mexico City (Mexico) and Santiago de Chile (Chile) to promote exchange of knowledge, networking, participation in tenders, best business practices, trade relations and promoting the image of the region.

Accordingly, the memorandum of understanding contemplates three key areas:
1. - Awareness and information for entrepreneurs, through international forums held in each country of the Pacific Alliance.
2.-Training programs regarding public procurement -- business placed in one of the Alliance members to participate in tenders.
3. - In terms of attracting investment it will undertake workshops to enhance the ‘Region’s Mark’. The Chambers of Commerce will unite to ensure permanent support to entrepreneurs through programs and projects that are managed by the agreement.

Moreover, the CCB informs that an element incorporated into the framework agreement was the Cultural and Creative Industries sectors, affirming that internationally these sectors do have much higher rates of growth than that of traditional sectors. Cultural and Creative industries “add economic and social value to nations and individuals, do constitute a form of knowledge that translates into jobs and wealth , and use creativity - the ‘raw material’ - to encourage innovation in production and marketing processes .”

Finally, the Pacific Alliance will offer opportunities of production to Colombia, Mexico, Peru and Chile, offering competitive products and will open the Asian market through existing agreements.

Source Cámara de Comercio.

Tuesday, 1 April 2014

Look who's 1?: Mexico and the Madrid Protocol

A year ago, Mexico signed the Madrid Protocol giving trade mark owners a simplified mechanism through which they can protect their mark abroad. Administered by WIPO it is said to be the most efficient means of achieving international protection for a registered trade mark.

Before 2012 no Latin American country (apart from Cuba) had acceded and much was speculated (here, here and here). Colombia and Mexico signed just months apart from each other and time flies….Mexico is already celebrating its first birthday with good reports from WIPO ( Mexico’s process of the applications have been of high quality and efficiency).

The Mexican Institute of Intellectual Property (IMPI) reports that after Mexico’s entry, 54 applications from companies and individuals with business activities in Mexico have submitted their trade mark through the Madrid Protocol. These businesses seek protection mainly in the United States, the European Union and China. In addition, abroad applications notifying Mexico as Designated Office have reached 5,476 of which 1,907 has been granted. Countries that have designated Mexico the most are: the United States, Switzerland, Germany, Spain and China.

IMPI emphasises that the Protocol encourages foreign investment providing legal certainty and giving the opportunity to international companies to enter the domestic market providing an easy accessible mechanism for registration of their marks in our country.

Source IMPI.

Monday, 31 March 2014

Chile: A watermelon with a heart

Last week Chile celebrated the International Gastronomic and Food Industry (Encuentro Internacional de la Industria Gastronómica y Alimentaria (EIIGA 2014)). One of the parties that decided to participate with a stand and everything (including food!) was the Chilean Intellectual Property National Institute (INAPI).

As expected, the event is visited by the most important representatives of the culinary and food industry at national and international level . INAPI’s aim was to support the ‘Origin Stamp’(Sello de Origen) by providing information and also offering tastings of domestic products. INAPI explains that the ‘Origin Mark’ recognizes and rewards the efforts of traditional producers. It attends to “encourage entrepreneurship and productive development in local communities” through providing recognition to their products by obtaining Geographical Indications ( GIs) , Designations of Origin ( DO) , Collective Marks and Certification Marks.

Finally, Mr Maximiliano Santa Cruz , INAPI’s National Director , says that with the ‘Origin Stamp’ there is hope “to foster, preserve, protect and improve the positioning of the work of artisans, fishermen, farmers and producers".

In the same line, early this month INAPI granted a Collective Mark to the Association of watermelons from Paine – the collective mark being ‘Corazón de Paine’ (Paine’s heart). It is said that this process started in January 2013. However, the aim is to obtain a Geographical Indication (GI) for which they applied for in June. By the collective mark it is “expected to contribute to the preservation of agricultural biodiversity and tourism development of the municipality”.

INAPI’s president informs that up to today there are only four Collective Marks registered in Chile. In this occasion the watermelons from Paine are said to be highly sweet and to have nutritional quality. The region of Paine is located in the metropolitan area, in the province of Maipo, and is mainly characterized by its agrarian culture.

Source INAPI.

Wednesday, 19 March 2014

Not just a label: Geographical Indication

This week, the Brazilian Instituto Nacional da Propiedad Industrial (INPI) presented a certificate of Designation of Origin (DO) to the producers of coffee in the region of the Cerrado Mineiro. The event took place at a national fair called ‘Feira Nacional de Irrigação em Cafeicultura’ and was attended by farmers, exhibitors and officials.

Sergio Francisco de Assis, President of the Federation that represents, manages and promotes the Cerrado Mineiro region, received the certificate and acknowledged that the “certificate summarizes years of work” and recognises the said Regions and its people.

On the other hand, Lúcia Regina, who is the General Coordinator of Geographical Indication at INPI, congratulated farmers for the achievement and at the same time encouraged them to seek protection in other markets and products.

The region of the Cerrado Mineiro is the leading producer of coffee in Brazil. According to Decree of the Government of Minas Gerais the region comprises an area of 147 hectares and approx. 3500 producers. The region has uniform climate pattern allowing the production of high quality coffees.

A soft reminder to my family...
Back in 2005, the coffee from the Cerrado Mineiro was granted an Indication of Source. Currently, the product is giving the highest GI certificate and thus, recognizing (not just labelling) the “qualities and characteristics of the product, the result of geographical environment, including natural and human factors.”

While this news was reported a few months ago (here), it was this week that the event took place. As noted at the time, this is the third national product that receives a DO (there are: ‘Litoral Norte Gaúcho’ for rice (granted in 2010); and, 'Vale dos Vinhedos’ for wines (granted in 2012)).

Source INPI here and here.