Tuesday, 24 May 2016

Exporting is Great

Last week the UK Trade & Investment (UKTI) did a road-show around the UK. The campaign was regional focusing on trade and investment for Latin America.

I have the opportunity to make a presentation alongside the UKIPO as part of my role for the Latin America IPR SME Helpdesk and while the room was not packed the feeling was the same: is IP important for my company?

One of the key issues that Rahul Rahhavan (UKIPO) and I emphasised was that IP is territorial. And before that, it was important to point out that the protection of IP is essential for a company; be it a logo, slogan, the packaging, the invention, at the end it is your time and money that have been invested. It was your company that made such a product; your name, logo, colour are the ones that have made the public aware of ‘your’ good/service that differ from the competition. Why then not protect it?

Image result for exporting is greatIn the road-show there were different representatives from Latin American countries. I have the opportunity to speak with the UKIT from Venezuela, Richard Hyde and talk about my beautiful home country: are there any opportunities for investment? As we all know, many Latin American countries are suffering from political issues and economic (in)stabilities and one cannot turn a blind eye on this. So, I rather not disclose Venezuela's state of affairs.

One of my roles was to address the weakness of IP in the region such as the backlog presented in some of the national IPO and the lack of specialised IP courts. But even so, it is good to see that the region has good legislations in place that fulfil international IP standards. Moreover, it is good to know that the majority are members of the Patent Cooperation Treaty (anyone from Argentina that can enlighten us on the country status? It appears that Argentina signed but has not ratified the Treaty as yet). There is also the possibility to include countries for the international trade mark registration system (Madrid system). This part went well since everything cannot be gloomy - otherwise will scare the UK to invest in our continent!

Hopefully after this event that took place in Cambridge, London, Reading and Midlands we will see some investors crossing the pond and interchanging some know-how, technology, and skills.

Thanks UKIPO for extending the invitation to the Latin America IPR SME Helpdesk. We are here to make it easier for SMEs to protect their IPR in our region.

Monday, 16 May 2016

Intellectual Property along does not promote innovation

The Brazilian Instituto Nacional da Propriedade Industrial (INPI)'s vice-president, Mr Mauro Maia, recently acknowledged that many important issues surround intellectual property, but the most important one was to understand and to be conscious of its relevance to the country.

Mr Maia affirmed that IP was used and relevant to the innovation environment nevertheless, it also noted that this legal instrument and system does ‘not promote development’ by itself.
These remarks were part of Mr Maia participation on the seminar ‘20 Years of Law. 9,279 / 96’ taking at the Universidade Cândido Mendes (UCAM) on 13 May, in Rio de Janeiro. This event was attended by other IP experts such as a federal judge; the president of the Brazilian Association of Intellectual Property (ABPI); and the president of the Brazilian Association of Industrial Property Agents (ABAPI); among others.

Different parties brought crucial remarks such as noting the importance of keeping update especially in this era of globalization which is relevant to the mere enforcement of IP rights; the importance of strengthening the national IPO (i.e. INPI).

Image result for innovationIndeed, following these remarks there is obviously the issue that IP legislation along does not promote innovation. IP protects patents, copyrights, and other IP but what promotes creations and inventions and developments is much more than a mere legislation. For instance, R&D is the backbone of a globally knowledge driven economy; incentives to this may come through direct Government support such as grants or tax credits; higher education also has an important role in R&D. In any case, the IP role is to protect the creator of the work from unfair practices and it does so by balancing exclusive rights given to owners with accessibility rights to the society.

There is indeed a (bad) culture in many countries to illegally appropriate IP and use it without paying and/or recognising the right holder. Cases of piracy in DVDs and software, and counterfeit clothing are still pretty common to find on the streets (and even in shopping malls! – mum just came for a visit, of course presents are always expected…a t-shirt which has a CHANEL logo in the front and reads CHANNEL).

Image result for overprotection ipMr Maia’s message is clear: there is the need to make people aware that IP is important. Nevertheless, in some countries this awareness should be at the same time/level as to make people knowledgeable what IP is for. Rather than just instructing the SMEs to use IP protection, consumers (we) need to appreciate IP. At the end we are the ones that buy that invention or creativity – why should consumers pay that extra money? By answering this simple question, the society can engage in a healthy debate of IP protection [or overprotection].

Source here.

Friday, 13 May 2016

Do you remember why IP protection is needed?

A few days ago there was a press release including some facts noted by the “Special 301” Report 2016. This report is the annual review of the global state of IPR protection and enforcement written by the United States Trade Representative (USTR).

In the press release it is noticeable some quotations which reflects the importance of protecting IPRs.
For example:
“This final Special 301 Report of the Obama Administration underlines the great value that unique American creativity and innovation have for millions of families – ranging from small businesses owners to medical researchers to employees of the recording and motion picture industries – as well as the efforts of the executive branch, our bipartisan partners in Congress, and the United States business community to vigilantly monitor abuses of American intellectual property rights anywhere they exist in the world.”[emphasises made] U.S. Trade Representative Michael Froman.
“Without strong IP laws, our member labels could not do what they do best: discover talented musicians and performers, nurture their sound, and distribute, market, and promote their music across the world.” [emphasises made] Cary Sherman, Chairman and CEO of the Recording Industry Association of America (RIAA).
“Intellectual property protections enhance job growth both domestically and internationally” [emphasises made] Stanley Pierre-Louis, general counsel of the Entertainment Software Association (ETA).

The rationale for the protection afforded to IPRs has been explained by many scholars, and they are best represented in 4 theories:

  1. Labour Theory (by John Locke) ‘the labour of his body, and the work of his hand, we may say, are property his’.
  2. Personality Theory (by Hegel) -- creation is an extension of its creator’s individuality or person, belonging to that creator as part of his or her self-hood.
  3. Pendleton’s Theory - nobody owns an idea before its appropriation. However, ‘an invention can be seen as a (new) combining of known units of information’ (Catherine Colston).
  4. Utilitarian Theory is a ‘theory of ethics that prescribes the quantitative maximization of good consequences for a population’ (George D. Catalano).

Image result for justification of ipThe first two are based on the creator’s private interest. The others are based on the society well-being.

In any case, the theories highlight the importance of protection and the words heard by various US parties are welcome. It is good to be reminded the rational of IP protection, of course, the debate sometimes focus on overprotection rather than lack of it.

The press release can be read in full here.

Thursday, 21 April 2016

Chile: Plataforma INAPI Conecta

En el auditórium de la Facultad de Derecho de la Universidad de Chile, se realizó el viernes 15 de abril, la presentación del nuevo sitio del Instituto Nacional de Propiedad Industrial, INAPI CONECTA, un punto de encuentro de nuevas tecnologías protegidas a través de la propiedad industrial.

INAPI Conecta tiene como principal objetivo servir como un espacio de encuentro, en el cual creadores e instituciones nacionales puedan dar a conocer innovaciones que cuentan con derechos de propiedad industrial a potenciales usuarios e interesados en explotarlas comercialmente. Este es un espacio público y gratuito que busca fomentar y acelerar la transferencia tecnológica y la comercialización de nuevas tecnologías.

Es así como los titulares de derechos de propiedad industrial pueden publicar sus patentes de invención, modelos de utilidad, diseños y dibujos industriales, en www.inapiconecta.cl. Además, los titulares pueden editar y modificar sus publicaciones para hacerlas más atractiva al público y de esa forma capturar mayor interés de un potencial interesado en explotarla comercialmente. 

INAPI Conecta pone a disposición de la comunidad nacional cientos de innovaciones con la disposición de aplicar nuevas tecnología en sus procesos industriales, comerciales o de investigación. Para facilitar este intercambio de información, INAPI Conecta posee guías y manuales para apoyar y fomentar la transferencia tecnológica.Existe disponible información de 48 tecnologías nacionales que pertenecen a las áreas de Biotecnología, Electrónica, Farmacéutica, Mecánica y Química, las cuales pertenecen a las Universidades de Concepción, Pontificia Universidad Católica de Chile, Universidad de Chile, Universidad de La Frontera, Universidad de Santiago, Pontificia Universidad Católica de Valparaíso y la Corporación de Inventores de Chile.

Fuente: Constanza Zülch B. (Comunicaciones INAPI)

Tuesday, 19 April 2016

INDECOPI joins TMclass

As of 18 April 2016, the Peruvian National Institute for the Defense of Free Competition and the Protection of Intellectual Property (INDECOPI) joins TMclass. Peru is the third Latin-American country included in the tool following Brazil and Mexico.

The addition of Peru brings the total number of national and regional IP Offices, including OAPI, WIPO and EUIPO, in the tool to 59.

TMclass now offers users the opportunity to search and translate terms to and from any of the 40 available languages.

This successful integration is the result of joint effort and cooperation within the framework of the International Cooperation Programme managed by EUIPO in collaboration with its international partners.

Source EUIPO.

UPDATE: As of 25 April 2016, the Colombia Superintendence of Industry and Comerce (SIC) has also joined TMclass. (EUIPO).

Sunday, 17 April 2016

Cocoa: more than a hot drink

The IPtango is always covering the matter of Geographical Indications (GI) and debates have been opened due to some queries: does it help the producers? Is it just economic exploitation? Does it deteriorate the product? One way or another, it is always good to know what is going on with a particular product.

The Peruvian Institute of Intellectual Property (INDECOPI) has been providing activities to its citizens, be it training or awareness on IP (in general). And this cannot be a bad thing. This month for example I read about one of this activities which took place in the region of Amazons. INDECOPI’s Directorate of Distinctive Signs gave training to the Technical Committee of Cocoa, and to the Regional Government of Amazonas, on the various tools offered by IP for the protection of natural resources especially GI protection. Previously, the Technical Committee of Cocoa has showed interest of obtaining a GI for cocoa and thus, the INDECOPI’s office took this opportunity to provide them  with  some ideas on this regards.

Image result for cacao peru amazon tesco
 I can find this in my local supermarket,
but it is not from the Peruvian Amazon...or, is it?
INDECOPI reports that the training focused “on the benefits of having a designation of origin for cocoa.” It explained that a GI “allows a product to be differentiated from other similar offered in the market, because it has features that make it unique and attract consumer preference.” It also noted the “development phases for recognition of a designation of origin and the importance of promoting relations between people, territories and products for sustainable rural development.”

The training was not just focused on GI but also covered other IP tools such as collective marks, and trade marks. It highlighted IP as a good tool to be used by entrepreneurs and associations to protect their products and services. Apart from covering aspect of fair competition, INDECOPI also acknowledged how these tools can be used for the development of their region.

Aside from the point of IP I wonder: is it a good move to be looking at the exploitation of cacao  this time? Last year we heard the news that some companies were illegally deforesting the area (approx 7,000 hectares) and other companies were acquiring rural properties. Or, would this be actually the right moment for small enterprises to unify themselves and regulated what is to be regarded as proper cocoa from the Amazon region? some indication as the way it needs to be cultivated and to link it to natural factors but also to human ones as well...that would be a thought.


Monday, 11 April 2016

Check your rubber duck: is it original?

It is usual to open Latin American newspapers and read about protests. But what caught my eyes this time was to see a case of plagiarism in the middle of an actual ‘protest’.

Image result for dutch artist florentijn hofman rubber duckBrazil is in the middle of a mayhem for many reasons (zika, will Brazil be ready for the Olympics, and politicians involved in cases of corruption, to name some). This time the protest was related to the accusation of Brazil's President Dilma Rousseff. The protesters are using as a mascot a rubber duck. But this is not any rubber duck. This is said to be a ‘copy’ of the famous rubber duck made by Dutch artist Florentijn Hofman. Mr Hofman’s rubber duck has traveled the world since 2007. He has been spotted in countries such as Japan, Taiwan, New Zealand and even visited Brazil.

What is the copy, if any?
According to the news published by BBC, the case is about copyright infringement and an exactly copy of Mr Hofman’s design. Is it?

Here comes the fishy bit: the ‘original’ duck appeared as part of an exhibition in Brazil, and this version of Mr Hofman's duck was produced in a Sao Paulo factory. This same factory produced the new claimed copied duck. However, the owner of the factory, Mr Sousa, affirmed that they have produced both ducks: Mr Hofman’s version as required at the time for the exhibition, and the new duck, but assured that the design was not copied. He noted that he will “not put [his] reputation at risk" and he has “experience in this kind of jobs and this is a very simple design. Why wouldn't we spend four hours redesigning it?"

IPRs in Brazil:
Industrial Design is protected under Brazilian Law. As in many jurisdictions, one of the requirement is novelty and thus, will take into account all previous designs (state of the art) that have been made public in any place of the world and by any means before the filing date (priority date). As acknowledged by Mr Santos, the duck's design is common and thus, it would not have been protected under design.

Copyright also is available in Brazil which is a member of the Berne Convention and thus, not requirement of any formal registration obligation. Works are protected automatically from the moment of its creation. However, it is advisable to register the work as in many other Latin American jurisdictions do advise.

In this particular case the duck does not appear to be registered but it does not mean that it cannot be copyright protected - the technical drawings may be protected. While there is a main difference between the two ducks (the original has normal eyes and the claimed copied duck has crossed eyes) it does not matter for there to be an infringement since the test is about quality not quantity. So, ignoring the eyes, is the said copied work reproducing the whole or a substantial part of the protected work?

Image result for dutch artist florentijn hofman rubber duck
A case of spot the difference?
Section 29 of Brazilian Law No. 9610/98 sets a list of actions which constitute copyright infringement and relevant to this duck we could mention: complete or partial reproduction of the works or, plagiarism. The causal link is indeed of no problem since Mr Sosa had direct access to the technical drawings - he prepared Mr Hofman’s version. On the other side of the coin, defences are also available to this ‘copy’ duck such as the drawings has no originality and thus, not protected and/or the copy duck is sufficiently different from the copyrighted work.

Image result for face duck
Talking about duck...well said Mr.
The question then is based on: does the duck’s technical drawings constitute ‘artistic work’ worth of protection? Copyright does not require for the work to be unique or inventive, the Brazil requirement is that actually the work needs to be fixed and that it has to be a creation of the mind. Can we said that this drawing contains creativeness?

In the meantime, ducks are still used in protests against the government.