Welcome to our blog for Intellectual Property Law and Practice in Latin America!
¡Bienvenidos a nuestro blog de Derecho y Práctica de la Propiedad Intelectual en Latinoamérica!
Bem-vindo ao nosso blog sobre Direito e Prática de Propriedade Intelectual na América Latina!

Friday 26 February 2010

Gilberto Macias (@gmaciasb)

IBM México nuevo sistema de almacenamiento de información X I V.

IBM México lanza un nuevo dispositivo de almacenamiento de datos con una capacidad de 180 terabytes (la de cosas que podemos guardar!!), basado en tecnología de disco duro de última generación. Dicho dispositivo cuenta con más de 50 patentes y se ha invertido la friolera de 20 millones de USD.

Según IBM, dicho dispositivo permitirá a los clientes obtener un ahorro de energía de 80% y una reducción de costos operativos de un 70 por ciento.

Directivos de la compañía destacaron la participación de mexicanos en el proyecto, que además cuenta con el apoyo del Gobierno de Jalisco, diseñado para ofrecer alto rendimiento, escalabilidad y facilidad de administración, a la vez que se aprovecha la gran capacidad de almacenamiento y bajo costo de la tecnología SATA.

Más información aquí y aquí.
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Aurelio Lopez-Tarruella Martinez

IP Provisions in EU-Peru/Colombia FTA

IP Watch informs that Peru, Colombia and the European Union have reached an agreement on the the content of the section concerning Intellectual Property of their Free Trade Agreement. According to the information in IP Watch: "makers of branded drugs will enjoy “test data exclusivity” over the scientific formulae they have used and will be able to delay generic versions of their products from appearing on the market. This data exclusivity will apply for five years – six fewer than the EU had been pressing for. The five-year exemption is similar to that contained in agreements that the US signed with the two Andean countries in 2006".

Although the EU has watered down its original demand of 11 years of exclusivity, Health policy activitists still believe that these requirements may imperil access to affordable medicines in Peru and Colombia by hampering the availability of generic drugs. Furthermore, the data exclusivity requirement may have effects for other countries of the Andean Community.

Other key provisions of the agreements concern geographical indications. It looks like 200 GIs from both sides will be covered by the text.

Talks on the agreement are at an advance stage. It might be ready of the EU-Latin American summit in Madrid on May if the European Parliament (with new powers on EU Commercial Policy thanks to the Lisbon Treaty) approves it.
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Thursday 25 February 2010

Patricia Covarrubia

Anti-Counterfeit Trade Agreement (ACTA)

    No comments:
ACTA is a proposed plurilateral agreement which aims to establish international standards on IPRs. The treaty is not part of any international agreement and it is criticised as being too severe. From Latin America, the only country that has joined the negotiations is Mexico; other countries are the US, the EU, Japan, Australia, Canada among others.

This week the European press has covered the 7th round of negotiation of this agreement - held in Mexico. The focus has being in a leaked document from last meeting. In this text, the United States proposed to establish a new role for Internet Service Providers (ISP) requiring them to engage fully in the fight against piracy. According to analysts, this role will put the Internet under total surveillance by private actors because they will need to block and filter sites.

To this effect, the European Data Protection fears for the privacy of the citizens and thus, it call for transparency in these negotiations. The next meeting of ACTA negotiators will take place in New Zealand in April.

For more info see also a report in the Numerama magazine (in French).
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Patricia Covarrubia

Mexico: first survey of piracy

    1 comment:
The Mexican Institute of Industrial Property (IMPI, in Spanish) announces that from February to April it will be conducting surveys in two of its cities (ciudad de León and Guanajuato). The purpose is, according to the Institute, ‘to understand the habits of consumption and the views of the inhabitants of that city in relation to this phenomenon’.

While I do see this means of approach as an intention to protect IPRs, I cannot figure out how so. I better explain myself.

Last time I visit my family I went to purchase some CDs with the latest ‘latin music’, and to my amaze there was not one single High Street Music Store that sold ‘originals’. Moreover, there were everywhere – streets and malls. This is not all. The presentation and quality of those sold at the mall were extraordinary beautiful and of course very cheap. The same happen when my mother arrived with rented DVDs, they were not original and the answer was that there were not places where to get them (after being called snobby!).

After enquiring, as a normal consumer, I became aware that there were different prices for these ‘non-originals’ products, depending though on the quality. Moreover, after telling the DVD shop that the rented movies were not original he replied very politely: do you want your money back?

The moral of the story is that counterfeit appears to have a market on its own and besides, it appears to be extremely common giving you the sensation that it is legal.
I just wonder how the IMPI is going to promote and disseminate the benefits of the IP system if the consumers are happy to buy counterfeit products. Of course the examples that I gave are the date to date and most common ones and the one that appear not to harm customers. But, as said, I just would like to see how surveys will help the IMPI.
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Wednesday 24 February 2010

Patricia Covarrubia

Chile: counterfeit products exceed half a million

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Today’s front page of the Mercurio newspaper reports that in 2009 more than half a million counterfeit goods were seized in shops and malls.

According to the head of the Brigade of Intellectual Property, Patricio Bascuñán, PlayStation games is at the top of the list with over 100 thousand counterfeit products. They are followed by sportswear bearing marks such as Nike and Adidas.

Following investigations it was found that the goods reach the country from China, through an importer. However, it is also recognised that there were cases in which the store owners bought the products online.

Mr Bascuñán explains that one of the biggest concerns is related to health. He gives an example of cylinders of oxygen which were seized – even though they were bearing the mark Indura, they were filled by another company. That said, he says that it is uncertain if they had the adequate quality and purity for human use.

He adds that there are also unusual cases such as 40 thousand bottles of Coca-Cola, from China. The packaging of the 600 ml bottle did not resemble the original and the label was written in English and did not specify the ingredients. The studies found that the substance was not toxic, but it did not have the ingredients of the original drink.

Lastly, he mentions that 113 people were arrested for importing or selling counterfeit goods in 2009 - double the figure of that in 2008.
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Tuesday 23 February 2010

Aurelio Lopez-Tarruella Martinez

Marcas contrarias a las buenas costumbres según el Indecopi

Gracias a Gustavo Rodriguez, abogado de los solicitantes, hemos sabido que "el Indecopi de Perú declaró infundado el recurso de reconsideración presentado por los solicitantes del signo El Pezweón y figura por considerar que resulta contrario a las buenas costumbres.

En este pronunciamiento, el Indecopi va más allá de lo que fue su primer pronunciamiento en contra: los solicitantes pretenden el registro de un signo determinado y es la autoridad la que invocando la prohibición que corresponda debe motivar adecuadamente su decisión de denegar el registro. No es el solicitante el que debe sustentar el porqué es registrable (ya que si alguien solicita el registro de un signo ello parte de la premisa de que éste será registrable a consideración del solicitante) sino la autoridad la que debe motivar el porqué de la denegatoria (lo cual nunca se hizo apropiadamente).

En este segundo pronunciamiento, el Indecopi va más allá y sostendría que no solamente los solicitantes tendrían que acreditar que el signo no es contrario a las buenas costumbres sino demostrar que éste es “socialmente aceptable”.

En opinión de Gustavo, el Indecopi, lejos de interpretar restrictivamente esta prohibición con bases tan subjetivas y difusas, ha llegado a una solución mucho más restrictiva y onerosa para los solicitantes de marcas".
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Patricia Covarrubia

XII Habano’s Festival

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This week Cuba celebrates the largest international meeting for the best tobacco -‘Habanos’. This year, the event is dedicated to the female market and will honour two Habanos' brands, 'Cohiba' and 'Romeo y Julieta'.

Producers, traders, experts and amateurs are joined together to see the launch of new vitolas. There is the new "Juliet'' in cartons designed to attract women; the 'Wide Churchill' by Romeo and Juliet; and also the 'Cohiba Behike' in three sizes.

Click here to read the programme.
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Quandary for Chile's wine brands

An article on BrandChannel ("The Grapes Of Wrath: Chilean Wine Brands Taking A Beating", by Russ Josephs, 16 February, makes depressing reading for Chilean wine businesses that have sought to position their products at the upper end of the market, where profitability is maximised. According to this article, while the market for wines remains thirsty, there is a current preference for cheaper wine lines, notably in foreign countries. The author adds (quoting his sources):
"Foreigners are actually drinking more Chilean wine than ever, with shipments up nearly 18 percent in 2009, as opposed to California wineries, whose 2009 shipments dropped by 4 million cases ... The problem is that people are choosing cheaper vintages, preventing Chile's wine brands from being able to "break out of the $10- to $20-per-bottle price point"...

A few years back, the Chilean wine industry decided to simultaneously curb supply and fund a global campaign aimed at promoting their wares, all in the name of achieving higher prices. But the recession destroyed this goal, and currently the industry is in something of a holding pattern. Making matters worse are the vinters who are selling in bulk to compete with countries like Argentina, Australia, and South Africa – all of whom are fighting for a share of the low-end wine trade.

This means that when the recession finally lifts, the quality that Chilean wineries were hoping to embody may be tarnished ...".
While there is no easy solution to this problem, Chile's wine producers may want to consider doing what the manufacturers of some household goods do: sell the same product under one brand name to the 'expensive' market and under another brand name to down-market consumers. That way, it should be possible to preserve the prestige value of the upmarket brand, which is not tarnished if the same wine is sold under another name to less discriminating purchasers.
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Monday 22 February 2010

Patricia Covarrubia

Free Trade Agreements - who benefits?

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Central America
The eighth round of negotiations towards a Free Trade Agreement (FTA) between the EU and Central America is around the corner. However, there is concern regarding the EU ambitious on Intellectual Property. The main worry is about access to medicines. Specifically, the 20 years duration and the data protection period are the thorny points. The EU proposes to extend both of them.

Studies showing how the proposed EU Intellectual Property could harm public health argue that the European Commission negotiators cannot longer claim ignorance about the harmful consequences of rigid regulations on intellectual property.

Peru and Colombia
Also around the corner is the FTA between this two Andean countries and the EU. However, newspapers reports are looking at the bigger picture. They inform that domestic producers are optimistic about their chances, since they seek to improve their access conditions for goods made in the country to a common market that has nearly 500 million people. For instance, in 2009 the EU was the second destination of Colombian exports with sales of $4.698 million. The intention is to increase that figure.

Once the agreement is into force, it will benefit industries such as leather, textiles and garments. The agricultural sector will also grow, as there will be tariff-free quotas for sugar and meat.

Of course, they are not turning a blind eye in certain issues such as bananas - taxes to enter the EU market were reduced from 176 to 114 euros per tonne in the framework of a negotiation in the WTO, but the Colombian negotiators aim to bring it down to 75 euros. Additional striking fields are the sales of services, and biodiversity.

While there is hope there is also concern. Surely this is normal in any agreement, even in marriage!

Impact of the EU-Andean Trade Agreements on Access to Medicines in Peru (Health Action International (HAI) final report here).
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Patricia Covarrubia

Kindle expands to other Latin languages

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Launch in 2007, this electronic device (e-book reader) was made available to the Latin-American audience in October 2009 but only in English, German and French.

Last week it was revealed that authors and publishers can use the Kindle Digital Text Platform (DTP) to provide content in three other languages namely, Spanish, Portuguese and Italian. Indeed, good news for Hispanic writers and their readers.

I can't wait to read 'La Isla bajo el mar' (the island beneath the sea) by Isabel Allende...but, I guess I need to get one Kindle first!

For more info see here and here.
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Wednesday 17 February 2010


The LG trade mark and contested priority

The 35th Federal Court, Rio de Janeiro, ruled recently in an action brought by Brazilian company LG Informática Ltda against LG Electrics Investment Ltd and its Brazilian subsidiary (both part of South Korea's LG Electronics Group). The dispute related to the right to use the talismanic initials LG.

According to the court, LG Informática’s earlier commercial name rights gave it priority over the trade mark LG in the field of computers. Reaching this decision, the court (i) cancelled two registrations for the LG mark held by LG Electrics Investment for computer equipment in Class 9, (ii) ordered the National Institute of Industrial Property to reject five pending applications in Class 9 and one in Class 38 for LG, in respect of goods and services related to computer hardware and software and (iii) ruled that the defendants could not register the mark LG in relation to computer software or hardware in Brazil.

Since LG Informática’s priority was limited to the field of computers, the court made no order in respect of LG Electrics Investment's registrations and applications for scientific, medical, dental and veterinary equipment and cellular telephone devices in Class 9.

A second, unrelated court action between the same parties, this time for registrations and applications for the trade mark LG for goods and services in Class 9 in fields unrelated to computers, the same court rejected all LG Informática’s claims, including an application for a general order prohibiting the defendants from using the mark LG in Brazil.

Both rulings are said to be subject to appeal.

Source: INTA Bulletin, vol.65, no.3.
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José Carlos Vaz e Dias


As announced earlier by IP Tango (see its contents here), the Brazilian government took a serious step forward to apply trade barriers against American products in the amount of US$ 560 million and to further impose US$ 270 million retaliatory sanctions on services and intellectual property rights, as the WTO condemned US subsidies to cotton producers.

Firstly, CAMEX (Câmara do Comércio Exterior – the Brazilian Board Trade) approved on February 9 an updated list of 220 American products that will suffer tariff increase of up 100% of the value when imported into Brazil.

One day after, the President Mr. Lula da Silva signed provisional measure or interim measure 482 of February 10, 2010 (see full text in Portuguese https://www.planalto.gov.br/ccivil_03/_Ato2007-2010/2010/Mpv/482.htm ) allowing the suspension and limitation of IP rights of citizens or companies domiciled in countries that violate WTO’s trade rules. Such interim measure comprised the following weapons: (a) suspension and limitation of IP rights; (b) alteration of the rules and procedures that secure IP protection, mainly provided by the Brazilian Patent Office and the Ministry of Agricultural for plant variety; (c) alteration of the measures to apply the IP rights; (d) temporary prohibition of royalty remittances from licensing and technology transfer and (e) additional tax application to remuneration of IP owners.

Interim measure 482/2010 has been in force since February 11 and it needs to be reinforced by the Brazilian Parliament during the next 45 days. (see earlier IP Tango information here).

Despite the victory at the WTO, the Brazilian authorities seem to be driven by caution or, maybe, fear. You may choose the adequate feeling, but please bear the following facts. The day after interim measure 482/2010 was published, the government delivered a statement informing that the final list of retaliation products will be published on March 1, since the “list needs to pass through technical adjustments”, as informed by CAMEX’s Executive Secretary Mrs. Lytha Spíndola.

Further to that, the local authorities informed that solely patents related to medicines will be affected this time, but the final list of medicines will be delivered by the Health Ministry to CAMEX for publication on March 1.

In my viewpoint, the Brazilian government is being cautious and wise as it wants to gain time to convince the Americans to end up the subsidies. That would decrease the pressure to retaliate the maximum permitted amount: US$ 830 million. The Brazilian diplomacy is working hard in Washington and Brasilia, as one may imagine how unpleasant it is to retaliate a main trade partner.

Brazil will most probably be the first country to apply the cross-retaliation concerning IP rights, despite the fact that the WTO authorized it twice before. The first country to enjoy it was Ecuador against the European Union, but the sanctions were never applied. The second one granted to Antigua against the US, but no signs of sanction.

The government is also concerned about the side effects of the retaliation, which may range from US reaction to cost increase of industrial production. To prevent any side effects, the authorities have eliminated capital goods from the list and agreed to add a greater deal of agricultural goods, as the WTO complaint was on cotton farmers.

As to IP rights, the government has so far deviated from any allegation of illegalities, since interim measure 482/2010 gives the proper mechanisms for limiting and suspending such constitutional rights.

Nevertheless, there are important questions that have not been yet answered: Will the Brazilians be brave enough to apply any of the IP weapons? Will they be wise and sensible to measure the damage? One has to remember that retaliations at WTO are not punitive, bur rather compensatory to the losses from illegal trade practices.

These answers will be surely provided, but we shall need to await March 1, as this date seems to be the deadline set by the Brazilian government against the cotton subsidies.
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Tuesday 16 February 2010

Gilberto Macias (@gmaciasb)

México: De quien es la marca "CHIVAS"?

Ante el mejor arranque liguero de su historia, a las Chivas de Guadalajara, para muchos el mejor equipo de fútbol de México, los problemas le vienen desde fuera de la cancha y en relación con su marca.

Resulta que el propietario y presidente del Guadalajara, Jorge Vergara, perdió el uso de marca de las Chivas, que fueron restituidos al Club Guadalajara Asociación Civil, que ahora es la única y auténtica dueña de todos los derechos que se deriven de utilizar el nombre del también llamado "Rebaño Sagrado".

El Primer Tribunal Colegiado en Materia Administrativa dio a conocer hoy la ejecución de sentencia en el caso de la disputa por el derecho a utilizar las marcas del equipo de futbol Chivas del Guadalajara y la resolución fue que Vergara no podrá hacer uso del nombre, y si desea continuar haciéndolo tendrá que pagar.

Obviamente las reacciones no se han hecho esperar, y las Chivas ya han publicado diversos comunicados de prensa (aquí y aquí).

Sin lugar a dudas será un tema que seguirá dando de que hablar, solo esperamos que eso no afecte al equipo y siga la buena racha de resultados.

Más información aquí y aquí.
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Monday 15 February 2010

Patricia Covarrubia

Brazil retaliates against the United States IPRs

    No comments:
An interim measure was published last Thursday in the Official Gazette which retaliates against the U.S. The interim measure only deals with intellectual property and is effective immediately and must be ratified by Congress to become permanent law.

Last year, the WTO authorized Brazil to strike back against the United States because of subsidies that the U.S. government grants to producers of cotton in that country (see earlier IP tango post here). Brazil, then went on to develop a list of products that may have the import tax adjusted up to 100 per cent (see IP tango here).

With this new measure, Brazil will seek sanctions against intellectual property for an amount of up to $270 millions. So that, in addition to overtax the importation of goods from the US, Brazil may suspend and restrict the rights of intellectual property. The measure lists the possibility of retaliation on literary and artistic works, computer software, industrial design, crops and vegetables, and integrated circuits.
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Argentina, TRIPS compliance and patents

Writing in International Law Office ("The TRIPs Agreement and aspects of patent prosecution in Argentina"), Carlos O Mitelman and Daniel R Zuccherino (Obligado & Cia) review various aspects of Argentine patent practice in the wake of that country's commitment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

This article considers, among other things, the steps taken by the National Institute for Intellectual Property (INPI) to resolve the country's chronic backlog of unexamined patent applications; the authors mention that there have been some legislative initiatives towards the protection of pending patent applications but that these Bills, submitted to Congress, have not been considered.
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Friday 12 February 2010


.co registry heads for IRT rights protection mechanisms

The Colombian domain name registry is planning to introduce a change to its domain name registration rules, offering domain name registration under the top level domain of .co (at present it is only possible to apply for domain names under extensions such as .com.co, .net.co and .org.co). In line with other recent TLD launches, the registry will be running a phased launch process, starting on 1 March 2010.

What is really interesting about it this development is that the Columbian registry is looking to implement most, if not all, of the rights protection mechanisms as recommended by the Implementation Recommendation Team "IRT": IP Clearinghouse, GPML, Rapid Takedown (aka URS). This certainly sets the pace in advance of the launch of new gTLDs in 2011, given that .co is a country-code top-level domain as such will not be bound by whatever ICANN finally adopts for RPMs (revenues per thousand visits) in the new gTLDs. This is a bold and welcome step by the Columbian registry.

Source: David Taylor (Partner, Intellectual Property, Media and Technology, Lovells)
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Thursday 11 February 2010

Patricia Covarrubia

Lights-off! at Billboards and Advertising signs

On Wednesday, the Venezuelan government banned the use of electricity on billboards and advertisements as part of a contingency plan. The resolution also prohibits the lighting of the ads and billboards located in public roads, with the exception of pharmacies, health centres and secure facilities if they use energy saving bulbs.

The government said the new prohibitions will remain in place "until it exceeds the emergency". The breach of the regulation will be punished with the suspension of electric service for 24 hours and that if they do it again, it will be for 48 hours or cessation of the service indefinitely.

President Hugo Chávez earlier this week declared a state of emergency power due to a drought crisis generated by the Guri, which is the largest generator of electricity in the country.

Victor Maldonado, executive director of the leading business chamber of the capital, considered as "cosmetic'' the government's decision and said the measure will generate harm to advertisers. He added that the measure will not have a major impact on energy savings.

More news here and here.

Resolution No 008, Official Gazette here.
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Tuesday 9 February 2010

Patricia Covarrubia

Chile Industrial Association of Pharmaceutical Laboratories (Asilfa) responds to the American Chamber of Commerce (AmCham)

    No comments:

Ricardo Garcia, president of the Chilean Amcham, has noted that one of the reasons Chile stayed in the "red list" of intellectual property was for allegedly copying certain American laboratories medicines.

The debate has just started. Yesterday, Asilfa’s Vice President, María Angélica Sánchez, rejected the accusations, saying that no patents have been infringed because, in cases where they have been challenged, they are not subject to patenting. She added, “our laboratories comply faithfully with the issue of industrial property and pharmaceutical patents”. Miss Sanchez also explained that those trials and questioning refer to cases of medicines produced or created before 1991. It is good to bear in mind that medicines were only incorporated in the Chilean Industrial Property Law in 1991.

Trying to make her point, Miss Sanchez clarifies: "These are drugs that, although they were created before 1991, the laboratory of origin makes them a little modification and applies for a patent, which usually never sees the light. They use that application to say the product is patented.” She adds “while the application is made, which may take three to five years, the [applicant] laboratory sent a letter to the [infringer] lab explaining that they can not manufacture the product because it is under patent application, but that means nothing because it is not patented”.

Clearly, the protection afforded by a patent does not start until the actual grant of the patent BUT it is possible to claim damages for infringing actions which happen between publication and the grant. That said, it may be that the labs that are making the generics will not only become liable from the date of the patent being granted but even before.

To say that the ‘letter’ (to put the potential infringer on notice) does not mean anything because the patent has not being granted is reckless. Otherwise, according to her declarations, once an invention has been published (so anyone can acquire the knowledge because it is made public) everyone can use the invention until it is granted!

Another point that is made is the fact that the medicines were not new because they existed before 1991 (but they could not be registered because of the law). However, once Chile accepted medicines to be patented, the said labs filled in the applications with some modifications (as to appear as new inventions). Clearly, if Asilfa believes so, they can challenge the validity.
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Aurelio Lopez-Tarruella Martinez

Argentina: comentario al nuevo Art. 5 bis Ley 11723

Maximiliano Marzetti (Abogado, proesor e investigador de Derecho y economía ubicado en Bolonia) acaba de publicar un interesante artículo titulado "Costo sin beneficioso - Análisis económico del Art. 5 bis recientemente incorporado al Regimen de la propiedad intelectual" y ha tenido la amabilidad de proporcionárnoslo a los usuarios de IP Tango. El artículo está disponible aquí. A continuación un pequeño resumen enviado por el propio autor:

La reciente ley Nº 26.570 (que ha pasado casi desapercibida para la mayoría de los argentinos) incorpora el artículo 5 bis al Régimen de la Propiedad Intelectual (Ley Nº 11.723).

Un sólo artículo ha sido suficiente para extender el monopolio económico de artístas-intérpretes y productores de fonogramas por otros 20 años, sin ninguna justificación valedera.

Una extensión de tal naturaleza de poco sirve para generar incentivos para la creación de nuevas interpretaciones o fonogramas ni mucho menos para incentivar la creación de interpretaciones y fonogramas que ya han sido creados. Para peor, su aplicación es retroactiva, lo que ayer estaba en el dominio público hoy ya no lo está.

Desde la perspectiva de éste autor los Derechos de Propiedad Intelectual sólo debieran concederse cuando los beneficios (sociales y privados) superan los costos (sociales y privados). Toda otra argumentación es fácilmente manipulable, particularmente la que se solapa con una retórica que abusa de términos subjetivos como “justicia”, “equidad”, “interés nacional”, etc. y privilegia intereses sectoriales para el beneficio de unos pocos.

El análisis ecónomico del Derecho sirve ayuda a comprender los reales efectos económicos de las reformas legislativas así como para determinar de antemano quien gana y quien pierde con ellas.

En este caso han ganado los productores de fonogramas y las agencias de gestión colectiva, han perdido los consumidores argentinos. Privilegios sin justificación económica, obra maestra del lobby y del rent-seeking criollo. Sirva este breve artículo no para llorar sobre leche derramada, sino para conscientizar a los ciudadanos y responsabilizar a los representantes que no representan al pueblo.

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Monday 8 February 2010

Patricia Covarrubia

Can traditional cuisine be protected?

    No comments:
The question of today’s blog comes after the president of Mexican Gastronomic Culture, Gloria Lopez Morales, said that Mexican cuisine should be declared as Intangible Cultural Heritage by UNESCO.

To this effect, last September a dossier was sent to UNESCO, in order to belong in the Representative List of Cultural Heritage. The result will be announced next April. According to Lopez Morales, the requirements to comply with are: to be a very old cuisine, to be faithful to the products, techniques and procedures used; to have the ability to serve it as an element of cultural identity; upon others.

Among the list of intangibles that have been recognised are: the Chinese Dragon Boat festival, Spain whistled language, French timber framing, the procession of the Holy Cross in Bruges, the Mexican Ritual Ceremony of the Voladores and...The Argentinean and Uruguayan tango!

There is clearly a push to protect endanger things due to effects of globalisation. For this reason, I was wondering the influence of this outcome towards IPRs and/or viceversa. Certainly, IP is the protection of an intangible right (that of intellect). Many of the Representative list if not all can (in one way or another) be protected under one or two IP, e.g. dance, singing, choreography, craftsmanship. However, in the area of food I could think of just one area: denominations of origin and geographical indication. Therefore, the question of this week is: can a traditional dish be protected under IP? And if so, under which regime?

Personal note: I presume that the French could claim that a dish is an artistic work, but while there is no requirement of fixation, can a temporal art be protected under let’s say, copyright? I am aware of cases here in the UK, and thus I would like to hear different legislations.

Other countries applying for traditional cuisine is France and Croatia.
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Thursday 4 February 2010

Patricia Covarrubia

Are Genetically Modified Organisms(GMOs) a matter of Human Rights?

    No comments:
In answering the question, it appears so. Mexican Rural communities together with Greenpeace accused the Mexican Government (specifically the SAGARPA, PROFEPA and the Attorney General’s office) before the Inter-American Commission on Human Rights (IACHR).

The action is brought against the government because according to Greenpeace, it has refused to investigate the contamination of local crops with transgenic maize in the Chihuahua State. In the same vein, it is believed that by the Government turning a blind eye into the situation, “it violates the rights of consumers and producers as well as their cultural rights”. It is also added that “it violates...the right to property and right to information”.

Back in 2007, GM maize was planted in the state of Chihuahua. The plaintiffs brought this issue to the attention of the General Attorney and up to today they have received no response.

Lack of legislation or lack of government?
According to the Law on Biosafety for GMOs, Article 70 and 72, provide protection for local maize(oops!, I think I just answered the question).

More info here, here and here.
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Wednesday 3 February 2010

Aurelio Lopez-Tarruella Martinez

Chile y la pirateria

En continuación al post publicado en IP Tango recientemente sobre Chile y la piratería, Rodrigo Ramirez (Abogado de Ramos Pazos, Montecinos & Díez) nos trae más información:

Chile actualmente es miembro de la OCDE y su ranking de piratería casi duplica la de los países miembros. Este dato ha sido entregado por la asociación que agrupa a las empresas de software de Chile y el mundo (Business Software Alliance). Según cálculos de la BSA, la tasa promedio de piratería de los países integrantes de la OCDE es de un 35%, siendo la tasa de Chile un 67%.

Con estas cifras Chile encabeza la lista de los países con más piratería dentro de la OCDE, seguido por Turquía (64%), Polonia (56%) y México (59%). El país con bajo nivel de piratería es EE.UU. de Norteamérica con un 20%.

En la última medición, la piratería de software en Chile aumentó un punto, llegando al 67% actual, y perdió US$ 202 millones por este concepto en el año 2008. La noticia aquí.
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José Carlos Vaz e Dias

Legal Deposit of Musical Works Becomes Mandatory in Brazil

Legal deposit of musical works at the National Library has become mandatory in Brazil since law week through the publication of the Federal Law number 12,192 of 14 January 2010.

From now on, Editors, Phonogram Producers and video producers are obliged to deposit at the Brazilian National Library, in the city of Rio de Janeiro, 2 (two) copies of each piece of music edited or published by them within 30 (thirty) days from publication of the work. Also, they should officially inform the aforementioned institution all performances of the musical work published and released in the market.

Law 12,192/2010 and the obligation to deposit musical works in a government institution caught the surprise of many Brazilians not used to copyright law and still shocked by the recent press and communication control wave that hits some Latin American countries, such as in Venezuela.

In fact, the mandatory deposit of musical works has nothing to do with the control of the press, as it intends to secure registration, storage and dissemination of Brazilian music production so as to preserve national memory recording and folklore. The legal deposit of intellectual works (literary but not musical) is a statutory requirement of diverse laws, such as Australia, Canada, New Zealand, Portugal and Brazil too (Law 10,994 of December 14, 2004).

According to Law 12,192/2010, the failure to comply with the requirements of the legal deposit will result in the imposition of a fine, which may correspond to 100 (one hundred) times the value of the work in the market, without prejudice to the confiscation of copies sufficient to comply with the law.

Further to that, the Law implies that solely musical works in Portuguese language and divulged in the Brazilian market should be affected by the legal deposit requirement.

According to Daniel Pitanga, a partner and copyright specialist of the law firm Di Blasi, Parente, Vaz e Dias Advogados & Associados, “mandatory deposit is not new in Brazil. Like in Australia, Canada, New Zealand and Portugal, a Federal Law back in 2004 (Law 10,994/2004) provided the legal deposit of publications (literary works) in the Brazilian National Library to ensure the registration and custody of the Brazilian intellectual production thereby preserving culture and national language. However, the novelty rests on the National Library’s competence to manage the deposit and storage of phonograms and video media.”

That’s a good question, as the National Library is an institution focused on registering paper works, not phonograms and videos. The government agency to register musical works for copyright purposes is the National School of Music. In the case of artistic works, one may register them at the National Schools of Arts.

In view of that, the Brazilian National Library will have to adapt its internal structure for this new function in order to receive and conserve the new media.

Finally, it is important to advice that the mandatory deposit cannot get mixed up with the registration provided in the Copyright Law for the purpose to identify prior creation and record copyright assignments.
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Tuesday 2 February 2010

Patricia Covarrubia

INPI's Bulletins available online

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For those of you who are not aware, the Institute of Intellectual Property in Argentina (INPI) publishes official statements regarding their administrative cases.

Doing a little bit of research in trade mark, I read the bulletin issued on 27/01/10 regarding the admission and granting of certain marks but also the opposition and bar from registration of others.

I came across the forbidden ones - quite obvious, for example:
Buenos Aires es Gay and Argentina es Gay for services in classes 35 and 38; the bar was Art 3(e) “words, drawings and other signs contrary to morality and decency”.
Bob Marley; Jennifer Mariel; Sara Campbell; prohibited by Art 3(h) “the name, pseudonym or portrait of a person without his consent or that of the heirs to the fourth degree”.
2465 for several goods and services; prohibited by Art 1, which allows registration of combinations of numbers and letters and also in their own if they have a special design. In this case, the numbers did not have any design in particular and were not a ‘mark’ as such.
Dulces de Lujan (Lujan’s sweets; Lujan is a town in Argentina known for its traditional sweets) in classes 29 and 30 (foodstuff); banned by Art 2(a) - descriptive of the product.

Everything appears to be straightforward, however I also revised the trade marks that were granted registration; of course I encountered the controversial ones, for example:

Ultra Biodisel; Biodisel Ultra, for goods in classes 1 and 4 (chemicals and industrial oils) and services in classes 35,37,42,44. Not quite sure about the distinctiveness of this mark due to descriptiveness. Reading the case, the Institute granted the registration of the mark but established that the word Biodisel cannot be used exclusively by the company. Then I guess that we are talking about a compose mark in which I believe neither of the words alone are distinctive. I may ask? Does the combination make the mark distinctive enough? While I agree that there are circumstances in which a combination of descriptive words can make a particular mark distinctive, I am afraid that in this case I disagree. This case reminds me of famous EU cases such as Baby-Dry and Doublemint.

Cobro revertivo (collect) granted to a telecommunication company for services in class 38 (communication). This one is definitively tricky for those other companies wishing to or do have already the service of ‘collect calls’.

To have access to the bulletins, click here for the marks which were granted and here for those which were banned

Argentinian trade mark law here.
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Monday 1 February 2010

Patricia Covarrubia

Genetically modified organism, green light to consume but not to plant?

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Genetically modified organism (GMO) is indeed a topic which has brought hot debates at international level. Mexico is one of the Latin American countries that seem to have a settled regulation regarding Biosafety of GMOs. However, reading recent news, it appears that the population in general are not quite certain about the product. To this effect, Greenpeace Mexico as well as other Mexican agroindustriales, scientists, Universities, artists, intellectuals among others, joined opposition to the delivery of 28 permits for experimental cultivation in national territory.

This reports comes after last week resolution in which the Federal Commission for Protection Against Health Risks (COFEPRIS) issued eight permits for import and marketing of GMOs. The permits authorise the human and animal consumption and industrial processing on these products. The GMOs authorised includes four varieties of maize and one of soybeans. Bio Agro said that the adoption of these products adds to a grant total of 77 GMOs which are allowed to be consumed in the country.

Nonetheless, observe that while these GMOs are accepted for marketing and consuming, it does not mean that they are acceptable for planting. How come? The Cofepris only authorises the marketing and consumption of GMOs but it does not grant authorisation for planting. The country’s agriculture, livestock, rural development, fisheries and food (SAGARPA) and the environment and natural resources (SEMARNAT) Ministries are the ones that issue the aforementioned permits.

The SAGARPA and SEMARNAT grant permits in compliance with the law on Biosafety of GMO. However, the Ministers clarify that plantings are kept in experimental phase and are land controlled and completely isolated from another crops. I therefore believed that it appears to be sensible enough...until I read the Law and its further amendments.

Art 67 for example, establishes that it is not allowed experimentation on genetically modified maize that contains features that prevent or restrict its use or human and/or animal consumption. It is indeed confusing. COFEPRIS already granted authorisation for the GMOs to be consumed, so what is the point of this Article? Shouldn’t it be the other way around? First do the experimentation and then grant the permit for marketing and consumption. Or, am I missing something? What do you think should be looked at first: the impact on the environment or the human and animal health?

Added to this, Greenpeace Mexico denied that GM crops will bring better conditions for farmers, because the patent of seeds is in the hands of corporations, like Monsanto, which holds 90 percent of the seeds of this kind in the world. It is also added that the experiments do not favour public research, since scientists do not have access to collect data, because the companies control much of the research through patents and trade secret policies.

For the Law on Biosafety of GMOs click here, for its subsequent amendments click here.
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