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!

Wednesday 30 June 2010

Patricia Covarrubia

Colombia’s adhesion to the Madrid Protocol - a decade to act

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Last night I was trying to finish a paper regarding the new signed FTA between the EU and Colombia/Peru on Geographical Indications and I noticed something. In the draft, under the Provisions concerning Intellectual Property Rights, International Agreements (Art 195), the FTA establishes the following:

2. The European Union and COLOMBIA shall adhere to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989) within a ten years period from the signature of this Agreement. PERU shall make all reasonable efforts to adhere to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989)

Therefore, following yesterday's blog regarding Colombia and the Bill 234/2009, I presume that after all Colombia will debate in favour (or not – pursuing Marmite slogan ‘you either love or hate it’) of Colombia adhering to the Madrid Protocol.
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Tuesday 29 June 2010

Patricia Covarrubia

Colombia: the Madrid Protocol - is it all over?

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The Bill 234/2009, concerning the adoption of the Madrid Protocol, failed to be discussed at meetings of the Colombian Congress. Was this a temporal matter or a permanent one?

It is reported that the Bill has been put on hold because it did not fulfilled the relevant legislative procedure, so it is a temporal situation. It is clearly a set back that appears to be fair - need to comply with certain requirements. However, is this really what is happening?

Some time back, Adam Smith wrote an article on the WTR (issue 23) asking whether 2010 would be the year in which Latin America adopts the Madrid Protocol. In a latter issue some of us were invited to write a letter to the editor regarding this situation (issue 24). There is of course many ideas and hypothesis, pros and cons, but we have not heard yet a concrete answer why it has taken so long.

Now, going back to today’s news, at the time I noticed that in the FTA between the US and Colombia (pending ratification from the US Congress), there was a footnote where there was a commitment by Colombia to ratify or accede to the Madrid Protocol. So, what happen there? Are they playing the same cards as the US Congress? Everything is in stand-by.

I believe that another point to consider is that perhaps Colombia has lost interest in the FTA with the US; I do not blame them – it has been more than 4 years since it was signed. At the moment Colombia is negotiating FTAs with South Korea, Israel and Panama. This year, it concluded negotiations with the EU and last week the Canadian Parliament approved the FTA (Canada-Colombia). Next step for Colombia is to negotiate with Australia, Japan and Russia. That said, I presume that while the US is an important market for Colombia, it is not a priority, at least not now.

The query is: are they going to debate the Bill? I, to be honest, dislike uncertainty; for me everything should be answered with a ‘yes or no’. It is like the marmite commercial ‘you either love it or hate it’. There is not in between. The Bill is not a sandwich.
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Monday 28 June 2010


Giant fee increases in Ecuador

From Santiago R Bustamante (Tobar & Bustamante Abogados) comes the depressing news for IP owners that Ecuador's Intellectual Property Institute has, from 1 June, hugely increased the official fees which it charges for its services. Details can be found in this article on International Law Office. The biggest jump is for fees for patents for inventions, where the application fee has increased from $108 to $404 – an increase of 374%, with the certificate issuance fee rising from $54 to $204 – an increase of 378%.

These fee increases, together with special fees for a 'well-known trade mark declaration' and for three-dimensional marks, rather suggest that Ecuador sees IP as a tax on foreign IP owners rather than as a means of stimulating and encouraging the use of IP registration by local applicants.
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Friday 25 June 2010

José Carlos Vaz e Dias

Little Indemnification for IP Infringement: Are the Judges Undermining the Strength of the Brazilian Fashion Industry?

The Brazilian fashion industry is recognized as one of the fastest growing in international market. From fashion lingerie, beachwear to haute couture, Brazilian clothing may be found nowadays in the main centers of Europe, the US and Asia. Export of Brazilian fashion products are expected to reach approximately US$ 10 million by the end of year while in 2005, the same industry exported US$ 6 million.

Further to that, fashion shows are held in Rio de Janeiro and São Paulo every year, which opens up good opportunities for business. Such results make one to believe that Brazilian fashion is catching up to other global and well reputed designers label.

Such growth is mostly due to the creativity of Brazilian designers, represented by Almir Slama, Alexandre Herchvovitch, Isabella Capeto, Mara Mac, Fernanda Yamamoto, Walter Boaventura, among others. They have aligned the charming and daring features of clothing and apparel with the quality requested for the international market.

Nevertheless, it seems that Brazilian courts are not following properly the development of this industry nor recognizing the importance of creativity and IP to the local fashion designers. It is very common to see the courts dismissing allegations of copyrights and/or industrial designs infringement, as the judges do not understand properly IP matters. Furthermore, indemnification in the fashion industry is frustrating.

A recent case worth mentioning is the decision rendered by the judges of the 4th Civil Chamber of the State Court of Rio de Janeiro on June 1, 2010 (published on June 23, 2010) involving the local fashion designer Gilson Martins (Appellation n. 0072174-63.2004. Accordingly, the known department store C&A copied and sold women hand bags in exquisite formats, such as mouth and beach sandals among others, created by the designer. The mouth and beach sandals bags were registered at the Institute of Arts and protected by copyrights.

Those bags were extensively sold in several department stores of C&A throughout the country.

Although the judges of the 4th Civil Chamber recognized the originality of the bags (yes, some judges are attempting to address the minimum contribution of creativity, what a contradiction!!), their copyright protection and violation, losses and damages were fixed in the amount of R$ 15.000,00 (approximately US$ 7,000), not more than that. The judges’ argument for such little amount was the non-existence of severe economic or social effects accrued from the infringement, which means that the violation was not expressive notwithstanding the extensive exposure of the bags in more than 200 C&A Department Stores spread out in Brazil.

The indemnification amount has caught the attention of IP scholars and attorneys, leading to the conclusion that the Brazilian courts are too permissive to violation of intangibles. One has to remember that indemnification granted by the courts has educational besides compensatory character. Can this permissiveness harm creativity in the fashion industry? Should the local authorities be worried by educating judges of the main commercial centers of Brazil? It seems so, since holding an effective court system is as important as producing a good standard of IP laws and regulations.
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Gilberto Macias (@gmaciasb)

Acuerdo de cooperación entre el IMPI y la OEA

El día de hoy se celebró la firma del acuerdo de cooperación entre el Instituto Mexicano de la Propiedad Industrial (IMPI) y la Secretaría General de la Organización de los Estados Americanos (SG/OEA) a través del Departamento de Desarrollo Económico, Comercio y Turismo de la Secretaría Ejecutiva para el Desarrollo Integral (SEDI).

El acuerdo tiene por objeto establecer un marco de colaboración en temas relacionados con la propiedad intelectual, comercio e innovación, con la finalidad de promover espacios de diálogo sobre políticas públicas, además de promover la evolución de los sistemas nacionales de la región y de sensibilizar al público en general acerca de los aspectos relacionados con la propiedad intelectual, el comercio y la innovación.

El tema de la propiedad intelectual ha sido identificado como una de las áreas clave para mejorar la competitividad, fomentar la innovación y complementar los esfuerzos de creación de capacidades para la obtención de beneficios económicos generados por los activos intangibles.

Más info aquí y aquí.
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Thursday 24 June 2010

Patricia Covarrubia

The Colombian Law called ‘Fanny Mikey’ is not funny business

Last week (17/06) the Colombian Congress approved the ‘Fanny Mikey’ Law which seeks to protect economic rights (royalties) to soap opera actors and actresses when productions are later sold and broadcast in Colombia and abroad. The Law now waits for presidential approval.

The law called “Fanny Mikey ", named after a Colombian-Argentina actress who died over a year ago, was approved in the Senate by 57 votes in favour and 5 against.

The Minister of Interior and Justice, Fabio Valencia Cossio, said that this initiative recognizes that artists “have the right to receive royalties for their performance and work, as their contributions to the cultural heritage of Colombia must be translated into economic and social aspects”. I could not agree more. It is my understanding that Colombia is one of the major Latin American exporting countries of television productions, including soap operas, dramas and other series. Therefore, while the law appears to grant economic rights to just the artist, it is I believe of importance to the Colombia country as well. The reason is that the development of a country is to distribute the resources generated in all regions and in all sectors.

Maria Eugenia Penagos, actress and now director of the Actores Sociedad Colombiana de Gestión (Society Actors Management) achieved to unite 183 artists for the support in moving forward the Fanny Mikey Law. She mentioned that with this law, "We will raise the right to remuneration for public communication”. Penagos explained that for each broadcast of a drama in which an actor participates, he receives a percentage. If at home, the money raised will go to the Actores Sociedad Colombiana de Gestión; if overseas, to their societies. She adds that the amount to be paid will be set up by the parties involved (producers and actors) and it will be done in accordance with international agreements. If no agreement is reached, a judge will set it up. She gives an example from Argentina where last year it started collecting royalty for actors at 0.8 percent.

There is clearly a difference between paying fees for services that have been agreed in the contract concerned and another matter is royalty – don’t you think?

Yet, many questions arise from this law, for instance: will the royalty be for the actors’ lifetime or for a defined time period like cinematographic works that are protected for 80 years calculated as from the completion of the production (Art 26)? Who will be controlling later broadcasting and international sales? To this effect, how will it be controlled?

Colombia Copyright Law here.
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Wednesday 23 June 2010

Patricia Covarrubia

Brazil: billion dollar damages for improper use of software – will the Superior Court of Justice uphold the first instance decision?

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The Third Chamber of the Superior Court of Justice (STJ) is hearing an appeal with the aim of changing compensation for inappropriate use of software that can reach the value of $ 1 billion - one of the highest ever of its kind in Brazil. The decision came from the Court of Justice of São Paulo (TJSP), which held that Rede Brasileira de Educação a Distância S/C Lta has breached the Centro de Estratégia Operacional Propaganda e Publicidade S/C Ltda’s intellectual property rights.

The Rede Brasileira has been accused of using, without authorization, a software authored by researchers from the Centro de Estratégia and distributing it to 10 Brazilian universities and 33 foreign universities. This, according to the news, represents access to the software of approximately 17,000 teachers and 190,000 students.

On one hand, the defence, asking the STJ to reduce the amount of the damages, asserted that "the amount escape all the standards already required in the context of justice." On the other hand, the Centro de Estratégia Operacional Propaganda e Publicidade S/C Ltda claims that the amount of compensation is calculated based on the universe of people who may have had access to the software.

Minister Sydney Benet, from the STJ, proposed in his vote, to form a committee of arbitration to make a calculation of the compensation more in line with reality. While I am not familiar with IP finance and the system of monetary compensation, I like the reasoning of Mr Benet. At the end of the day, I believe that the ‘reality’ check should be about market return and so, the actual compensation and not a theoretical one. Any thoughts?
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Monday 21 June 2010

Aurelio Lopez-Tarruella Martinez

Perú: Proyecto de Ley de Protección de datos

Oscar Montezuma (Miranda y Amado Abogados) nos ha hecho llegar información muy interesante acerca del Proyecto de Ley de protección de datos personales, recientemente aprobado por el Ministerio de Justicia, y que se está discutiendo en el Congreso del Perú.

Como cuenta Oscar, una Ley de protección de datos personales constituye un complemento para el desarrollo del comercio y otras iniciativas interesantes como la notificación electrónica y los expedientes digitales. Además, resulta necesario la adopción de un marco normativo integral (y no sólo sectorial) que otorgue protección a sus ciudadanos sobre su información personal en consonancia con la tendencia internacional sobre la materia.
Aquí un interesante artículo de Oscar sobre la cuestión en su blog Blawyer. Tambien, si lo preferís, lo podeis ver en video.
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Aurelio Lopez-Tarruella Martinez

PILA Network: IP Management in Latin American Higher Education Institutions

The PILA Network is a project co-financed by the European Union, in the framework of the ALFA III programme, and is composed of higher education institutions (HEIs) from 18 different Latin American countries.

Its aim is to foster the modernisation and strategic planning of knowledge transfer and intellectual property management practices in Latin American Higher Education institutions. For this purpose, among other activities, the Network has as analyse the level of IP awareness in Latin American HEIs to obtain a detailed picture of the situation. Between February and July 2009, the PILA project partners interviewed a total of 145 Universities in 18 Latin American countries. The results have been aggregated and analysed by countries, and the country reports have been published in Spanish on the PILA website.The reports discuss the levels of IP awareness and use among the HEIs interviewed, as well as the principal challenges on national, institutional, cultural, strategic, operational, financial and human levels.

Further information about the PILA Network by Alexandra Mayr in IPR Bulletin.
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Sunday 20 June 2010

Aurelio Lopez-Tarruella Martinez

México: modificaciones en legislación de propiedad industrial

Según nos cuenta nuestro incondicional informador Juan Angel Garza Vite (Universidad de Nueva León, Mexico), el día 18 de Junio de 2010 se publicó en el Diario Oficial de la Federación de México el Decreto por el que se reforman y adicionan diversos artículos de la Ley de la Propiedad Industrial.

Este decreto incluye varias modificaciones de interés: una definición más complementativa de lo que es el concepto de aplicación industrial, la manifestación expresa de adjuntar la información que ejemplifique la aplicación industrial del invento, el derecho de oponerse a la solicitud de invención durante 6 meses después de la publicación de dicha invención en la Gaceta de Propiedad Industrial del IMPI, cualquier perjudicado podrá presentar al IMPI manifestaciones para que éste pueda iniciar un procedimiento administrativo de oficio, entre otras más.
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Friday 18 June 2010

Aurelio Lopez-Tarruella Martinez

CERLALC: Base de datos de legislación y jurisprudencia

Con esta entrada, en IP Tango queremos llamar la atención sobre el encomiable trabajo que Ricardo Antequera Parilli y el resto de miembros de CERLALC (Centro Regional para el Fomento del Libro en América Latina y el Caribe) están haciendo, con el apoyo de UNESCO, con su base de datos de legislación nacional, instrumentos internacionales y jurisprudencia.

La parte de legislación incluye vínculos a todas las leyes de los países iberoamericanos (incluyendo España y Portugal). Pero lo más interesante es la selección de sentencias que alberga, las cuales no se limitan a Iberoamérica sino que también recoge decisiones de países como Francia, Reino Unido o Alemania traducidas al castellano. En muchos casos dichas sentencias vienen acompañadas de comentarios elaborados por expertos en la materia.

Un trabajo encomiable de muchisima utilidad para académicos y profesionales del Derecho de la propiedad intelectual. Aquellas personas interesadas en colaborar en el proyecto pueden escribir a Aurelio (aurelio (at) ua.es) que les pondrá en contacto con los responsables del mismo.
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José Carlos Vaz e Dias

Brazil Suspends Trade Sanctions Against The US Until 2012

The Brazilian Foreign Board (CAMEX) – the agency that encompasses the ministers entitled to tailor the foreign trade policy – gathered late today and approved an agreement with the United States, which suspended until 2012 the applicability of commercial sanctions against the US subsidies to cotton producers.

Both governments will sign a Memorandum of Understanding to establish a new set of negotiations, consultations and reforms until the US government finalize the elaboration of a new agricultural law by 2012.

The MOU further establishes the American government’s commitment to create a fund of US$ 147 million to support Brazilian cotton producers. Moreover, the discussions with the Americans up to 2012 will involve the determination of a maximum cap for government’s expenditures and subsidies to the US cotton producers. This cap has not been settled yet, since it will require the prior approval of the American government, but it is expected that it will not surpass the amount spent between 1999 and 2005.

In case the Americans do not fulfil the terms and conditions of the MOU, Brazil may re-initiate the process of trade retaliation. The main objective of the MOU is to seek a mutual and satisfactory understanding between the countries without refraining Brazil from using its trade weapons, if needed.

It is believed that the suspension of the retaliations aims to greatly reduce the existing friction between the Brazilian diplomacy and the Americans, which has recently deteriorated due to the Brazilian opposition of sanctions against the Iranian government.

More information will be passed soon.
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Thursday 17 June 2010

Patricia Covarrubia

The EU and Ecuador – taking more time for the Free Trade Agreement (FTA)?

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The three days of talks between representatives of Ecuador and the EU arrived to an end - re: FTA. Yesterday was the last meeting and the conclusion was...well, according to the El Comercio newspaper, “there was no definition or resumption of negotiations between both parties.”

The EU head negotiator, Gaspar Frontini, said that there were some sensitive matters that found clarification, but there were others that need to continue exchanging information. This, he continues, will be done throughout the month of July.

As mentioned in an early post, in a previous meeting there were three themes that were classified as sensitive: intellectual property, government procurement and services. Yet, the director for Latin America at the EU Commission, Gustavo Martín Prada, said that there are no points that may be unworkable.

Gaspar Frontini and Mr Prada met yesterday with the Ecuadorian media where they explained that “the dialogue of these three days have been constructive and satisfactory”.

What lies ahead? According to the note, the Ecuadorian President and the authorities of the EU need to analyse what has been said in these meetings. Then, as mentioned they will continue to discuss whether they will start with the negotiations (I suppose this is something like negotiating if they are going to negotiate??).

I would like to finish today with the Doris Day lyrics, and please I am not intending to be ironic or sarcastic, but I just felt that the negotiation sound very much like the song:
“Que Sera, Sera,
Whatever will be, will be
The future's not ours, to see
Que Sera, Sera
What will be, will be.”
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Patricia Covarrubia

Waka waka chorus – who is the author?

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The official theme of the 2010 South African World Cup is under debate. The singer and songwriter, Wilfrido Vargas, accused Shakira of plagiarism for the use of the chorus of his song titled “ el negro no puede' in the ‘wake waka’ song – the official theme of the 2010 World Cup.

The chorus ‘waka waka' became famous in 1982, in the voices of a Dominican band called ‘las chicas del Can’ (the 'Sugar Babes' of the time) by the musician Wilfrido Vargas, who composed the song ‘el negro no puede’ and included a chorus:
“Zamina mina he he. Waka Waka ee e. Zamina mina zaaangaléwa. Ana wam a a, yango e e, yango ee e. Zamina mina zaaangaléwa. Ana wam a a”

You can hear the chorus here - by ‘las chicas del can’, and here by Shakira.

The question is who copy who? Or, who owns any rights over the chorus?
According to the news, in early May, FIFA announced that it had chosen the theme "Waka Waka", explaining that the chorus was based on a Cameroon song. It continues explaining that the song ‘waka waka’ is old as the people of Africa and that the unique name Zangalewa belongs to the popular song of Cameroon. Also, in 1986, a band from Cameroon called ‘Golden Sounds’ launched its version of "Zangalewa" and became very popular.

Although Shakira has twice been accused of plagiarism, there has never been any legal proceeding against her. Could this time be the one? Looking at the info, I do not think so. I guess Shakira can answer with her song ‘where are the thieves?'

A litte bit of gossip
For those of you who are seeking to know which ones were the other two songs, I will give you more info. Actually, I do remember both songs and saying to myself...this is like x.
1.- "Hips Do not Lie." – who can forget this song, or Shakira dancing it! Do you remember Jerry Rivera and his song ‘Amores como el nuestro’... the tune arrangement played by the solo - trumpet? Exactly the same.
2.- "Hips Do not Lie." The Dominican singer and writer, Luis Días, also accused Shakira for taking the chorus ‘baila la calle de noche, baila la calle de dia’ from his song titled ‘baila la calle’.

I really enjoy today written this post and searching/listening all the info about the songs. Latin music - salsa, merengue, ron, domino, football, weather, food; these all make me feel home sick. What a wonderful culture we have.
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Wednesday 16 June 2010


Rio 2007: can moral damage be presumed or must it be proved?

Although soccer World Cup ambush marketing is currently getting plenty of publicity, it is the Rio Pan American Games in 2007 which is the focal point of a recent piece of Brazilian litigation -- the Court of Appeals for the State of Rio de Janeiro has upheld a damages award in a trade mark infringement action brought by the Rio Pan American Games Organizing Committee against a taxi cooperative which used the RIO 2007 word and design trade mark without authorization.

According to the trial court, the cooperative infringed. The court awarded damages based on the royalty the cooperative would have paid, had it been a licensee of the Committee. The Committee also sought “moral damages” (compensation for harm to the Committee’s reputation) and it was against that court's refusal to award damages under this head of claim that the appeal was lodged.

Dismissing the appeal, the Court of Appeals said there was no proof of reputational harm. This decision is said to be at odds with recent decisions of the Brazilian Superior Court of Justice. According to that court, specific proof of reputational harm is not required in the case of trade mark infringement because damage to reputation may be presumed.

Source: INTA Bulletin, vol.65, no.11
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Tuesday 15 June 2010

Patricia Covarrubia

Ecuador and the EU looking forward to a Trade Agreement – again

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Ecuador and the EU return to a dialogue. Ecuador left 11 months ago the discussions that had begun the EU with four Andean countries (Andean block) regarding a Free Trade Agreement (FTA) - Peru and Colombia recently signed a FTA with the EU.

The delegates from the European Union and Ecuador are holding three days meeting with the aim of establish an agreement to develop trade between the two. The first meeting was held yesterday (14/06) where a general review of texts was looked at so as to identify the difficulties in initiating negotiations. It was determined that there are indeed three sensitive issues and so they should have a deeper analysis. They are: intellectual property, government procurement and services.

Deputy Minister of Foreign Trade, Galo Borja, said that the meeting was "satisfactory because it was an open dialogue". He mentioned that there is not yet a negotiation team but if the meetings are successful, the negotiations will begin in Geneva.

In this line, Ecuador's chief negotiator, Ambassador Mentor Villagomez, explains that the meetings of these three days are not negotiations but joint assessments to see the real possibilities of negotiation.

The result would be known tomorrow, Wednesday 16.
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Monday 14 June 2010

Patricia Covarrubia

Brazil v USA - a draw?

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While the title appears to be a football match, this is indeed the news that Brazil has suspended (temporarily) the retaliation against the US.

Last Thursdays (10/06), the Senate of Brazil approved the suspension of obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) against the US under the dispute "United States - Subsidies for Cotton." The document, the ‘Conversion Law No 6’ will go now to presidential approval.

On 2009, the World Trade Organization (WTO) upheld the Brazilian complaint against the United States due to the subsidies granted to cotton producers. On February this year, CAMEX (Câmara do Comércio Exterior – Brazilian Chamber of Foreign Trade) approved and the Brazilian President signed, an updated list of 220 American products that would suffer tariff increase of up 100% of the value when imported into Brazil - interim measure 482. On March, CAMEX published the final list of retaliation products and held a public consultation on 21 measures of retaliation in intellectual property rights - Resolution no. 16, of March 12, 2010.

The document provides for retaliatory measures such as suspension of rights, limited term for rights over medicines products, grant of compulsory licensing, among others.

According to CAMEX press, “due to bilateral negotiations now in progress, Resolution No. 20/2010 delayed for 60 days, until June 21st, the beginning of retaliation.”

To see the post thread, follow this link here
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Friday 11 June 2010

Patricia Covarrubia

Costa Rica: taking advantage of Trade Agreements

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On 9 June the Ministry of Foreign Commerce (Comex) in Costa Rica announced a new structure that aims to take better advantage of trade agreements.

Costa Rica has existing Free Trade Agreements (FTAs) with Mexico, Canada, USA, Dominican Republic, the Community of Caribbean States (CARICOM), Chile and Panama. It has also signed FTAs with China and Singapore and has too completed and is expected to negotiate the formal signing of an Association Agreement with the European Union (EU).

Comex’s leader, Anabel Gonzalez, explained that the agreements are only the platform and now they need and must be manage well and get the most profit possible. She explains that once the agreement with the EU, China and Singapore come to effect, 92% of national exports and 77% of imports will remain in the free trade regime.

The new structure, whose leader is Federico Valerio who was the coordinator of negotiations in the area of Intellectual Property (IP), is based on a general direction. From that direction, the Comex has several units: 1.-In the area of geographical regions were created units for North America, Central America, Panama and the Dominican Republic, South America and the Caribbean, Europe, Asia, and the World Trade Organization (WTO) and other multilateral forums. 2.- Units by subject area: monitoring and access for industrial goods, agriculture, sanitary and phytosanitary measures, technical barriers to trade and tariff quotas.

In addition, rules of origin, customs and trade facilitation, services and investment dispute settlement and institutional issues, intellectual property and innovation, and government procurement, labour and environmental issues relating to trade, competition and trade protection.

Minister Gonzalez mentioned that there will be coordination between these units. For instance the unit responsible for North America will have consultations on intellectual property, technical barriers, or any subject of another unit.

This is a good move. Certainly, just signing an agreement is not all. After this, and so how to get the best of it is the key question. Surely, by forming teams that know better a specific subject/geographic area is indeed a good start. What I notice is that the leader of the whole structure is quite familiar with the negotiations in IP. Let’s wish that he look after it.

The newspaper note can be read here.
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Patricia Covarrubia

Innovation and intellectual property

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Today’s highlight comes from a book from the collection Inova which aims to promote knowledge about development and sustainability. The book ‘Intellectual Property and Innovation in Industry’, published by the Federation of Industries of Paraná (FIEP) in Brazil, intents to raise public awareness about the national importance of this topic.

According to the Instituto Nacional da Propriedade Industriale (INPI) of Brazil, the book contains an Article written by Jorge Avila (INPI president) which presents a project of cooperation between nine South American countries in the area of IP (Argentina, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Suriname and Uruguay). The proposal, said the note, “is to promote the exchange of technical information in patent examinations, for example, which facilitates the work of the examiners in all countries.”

While I have not read the book, the idea/project sounds good to me. I wonder why the author did not include Bolivia and Venezuela?

If you happen to get hold of the book, would you like to write a review – we will be happy to post it in this blog.
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Thursday 10 June 2010

José Carlos Vaz e Dias

Is Football in Brazil a Sport or a Religion? None of them: It is a Serious and Profitable Business

Now, it is the time of football or to follow it under an IP perspective! Most of the headlines in Brazil have been addressing the preparation of the national team in South Africa and the “experts” started indicating their favourites for the upcoming World Cup of Football in South Africa. Who is going to win this time? Will the Uruguayans play well again, as occurred in the past? What about Argentina with Messi and Maradona? Will the English team prove that the inventers of football are also the best ones? Can the Samba Boys still dance Brazilian music like in 1970? Will Holland or Germany become a surprise? Or, the winner this time will be an African country, right?

Local people have started living football, so have I. Last night, I finished decorating the football court and the space surrounding the building where I live at Lagoa, Rio de Janeiro: official flags, signs and posters with the best football players and Zakumi (the official symbol of the South African World Cup) are already in place. Everything in green and yellow. Since I arrived from the INTA Meeting, the most important task was to organize the decoration of the football court, otherwise the kids would get mad at me. My daughter will be very happy when she arrives from school and sees that we have finished the requested decoration. At home too, my wife is happy with my cooperative behaviour: cups, plates, t-shirts, vuvuzelas (horns) on yellow and green have been bought for the gathering of my families and friends in front of the TV set.

This unique atmosphere seen each four years supports the common saying that “the most popular sport in Brazil is not football, but it is volleyball, since football is not a sport but rather a religion for the Brazilians”.

Businessmen know very well the seriousness of football for the locals and take the chance to increase their profits on every product sold in the market, as the association with the World Cup and the national team is inevitable and desirable.

Further to that, companies are already fighting for a space in the next World Cup of Football in 2014. According to the national newspaper “O GLOBO”, the fighting regarding who will promote the Brazilian national team for the next four years have begun in the marketing arena: Will Coca-Cola win the bid or will the local soft drink company Guaraná Antarctica maintain its position.

Coca-Cola needs to score to get the opportunity to explore the most important advertising instrument in Brazil: the Samba Boys. Guarana Antarctica will need to play hard, with a strong defense and fast attack. That is another World Cup, isn’t it? Yes, it is indeed.

We are all expecting that this marketing competition will be under fair rules, as FIFA and the Brazilian Federation of Football are with their eyes open, so are the local judges that are very much matured to address IP infringement and unfair competition linked to sports.

Another example of the importance of football to business has been the recent controversy involving the official football ball – Jabulani – where the main companies on sport apparel are fighting for a space in the media. Players supported by Nike and others are condemning Jabulani. Kaka and Messi have praised the ball, as they are sponsored by Adidas. Does the informal use of players to attack in the media the product of a competitor represent an unfair competition practice? Where are Adidas attorneys?

These are also the games worth watching until the next World Cup of Football. Next time will be in Brazil!
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Plant varieties and seeds in Argentina

One of the topics touched on in "Intellectual Property - Argentina: IP rights and new technologies", the most recent contribution to International Law Office by Carlos O Mitelman and Daniel R Zuccherino (Obligado & Cia), is that of plant breeders' rights. Regarding plant and seed varieties the authors outline the position in Argentina:
"Plant breeders' rights are recently acknowledged rights whose importance has developed concurrently with the biotechnological revolution and plant improvement techniques. They are rights related to innovations obtained in plant varieties (eg, new varieties with increased resistance to pests or weather, or with enhanced nutritional capacity).

Plant breeders' rights have similarities with patent law and also share the aim of encouraging new investment in research and development activities. However, despite these similarities, within the Argentine legal framework plant varieties are not patentable. Article 6(g) of the Patent Law (24,481) establishes that "all kinds of live material and pre-existing substances in nature" are not considered invention, thus excluding the possibility of patenting them. Furthermore, in many cases the obtaining of new plant varieties does not, strictly speaking, mean the creation of an invention, but rather the result of relatively gradual and mechanical stages or steps".
After explaining that plant varieties protection can be excluded from patent protection under TRIPS they add
" ... plant varieties can be protected under the Seeds Law (20,247) and the International Union for the Protection of New Varieties of Plants (UPOV) Agreement 1978 (Argentina has been a member of UPOV since 1994).

... The Seeds Law and Regulatory Decree 2183/91, which adapts the Seeds Law to the requirements of the UPOV Agreement and was approved in Argentina by Law 24,376, establish the protection of rights over plant varieties".
The full text of this article is available here.
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Patricia Covarrubia

Chile promotes biodiversity with its native plants

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This week, the magazine ‘Del Campo’ – El mercurio, bring us the news that the Instituto de Investigaciones Agropecuarias (INIA) (the Agricultural Research Institute) of Chile patented two varieties of the native Chilean plant named murtilla (Myrtus ugni) in the United States.

Trying to be more accurate I started to seek more information about this and I found that in fact, there are two patent applications in the US Patent and Trademark Office (2008) but they have not yet being granted. Patents are seek for the varieties named: South Pearl - INIA (Patent Application No 20080313781) and Red Pearl – INIA (Patent Application No 20080313782).

The murtilla produces red berries (known by some as cranberries) which are becoming increasingly attractive due to its nutritional and health properties. In 1996, the INIA initiated a research project to domesticate murtilla and to develop berries that were suitable for commercial production. The journalist affirms that by patenting they are at the first step of “protecting the national heritage”. However, the patent as such will not protect the native plant but only these new varieties (genetically enhanced).

For example, in Australia there are projects for successfully growing and supplying the fruit. The Tas Myrtus Berries Pty Ltd (TMB) is commercialising M. ugni berries (Tazziberry®).

According to the info, the Instituto is also looking at the protection of these new varieties in New Zeland, Australia, Argentina and Brazil.
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Wednesday 9 June 2010

Aurelio Lopez-Tarruella Martinez

República Dominicana: carrera de propiedad intelectual

Carlos Atiles nos trae esta noticia de Republica Dominicana publicada en El Nacional: en un reciente encuentro organizado por la ONAPI, el señor Onyeama (director general de Cooperación para el Sector Desarrollo de la OMPI) ha propuesto la implementación en el país de la carrera de Propiedad Intelectual con el objetivo de crear conciencia en la ciudadanía sobre la importancia de esta herramienta para el desarrollo económico.

En el mismo encuentro, el señor Juan José Báez (director general de ONAPI) explicó la importancia que tiene la propiedad intelectual para el desarrollo de la nación en el nuevo marco tecnológico. Tambien están involucrados en el proyecto la Universidad Autónoma de Santo Domingo (UASD), la Católica Tecnológica del Cibao (Ucateci), Apec Intec.
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Patricia Covarrubia

Brazil foresees a new Code of Civil Procedure

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The Code of Criminal Procedure, the Penal Code, the Intellectual Property Act, and many others grant exclusive rights to the owners of IP rights as well as provide for the punishment for the violation/infringement of IP. However, the Code of Civil Procedure is the one that ensures expedited trial – practitioners love that.

Yesterday(8th of June), the committee of lawyers who were responsible for drawing up the draft of the new Code of Civil Procedure provided the president of the Brazilian Congress, Senator Jose Sarney, the result of their work.

According to the president of the said commission, Minister in the Superior Court of Justice (STJ) Luiz Fux, the work “...analysed over a thousand suggestions that have come to the committee. Since the beginning of the work, the committee recognized as main objective the guarantee of reasonable duration of trials, without however sacrificing the principle of legal defence. The desire for a more speedy justice was taken during all the discussions ...”

If the bill succeeds we will see a significant reduction of the delay of the proceedings in the Brazilian courts - so they said.
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Tuesday 8 June 2010

Gilberto Macias (@gmaciasb)

México: Denominación de Origen Chile Habanero de la Península de Yucatán.

Un tema que desde el IP Tango hemos estado siguiendo (aquí, aquí, aquí) es la controversia por el Chile Habanero, la cual ha llegado a su fin.

Se ha publicado en el Diario Oficial de la Federación la Declaración de insubsistencia de las condiciones que motivaron la Declaratoria General de Protección de la Denominación de Origen Chile Habanero de Yucatán, toda vez que fue concedida en el año de 2008 exclusivamente a favor del Estado de Yucatán, México por parte del Instituto Mexicano de la Propiedad Industrial (IMPI), siendo impugnada por los Estados vecinos de Campeche y Quintana Roo.

Ahora bien y dado que los 3 Estados son los beneficiarios del Chile Habanero de Yucatán, el 4 de Junio de 2010 se publicó en el DOF la nueva Declaratoria General de Protección de la Denominación de Origen Chile Habanero de la Península de Yucatán, otorgándosele a los Estados comentados y beneficiando así, a los productores de las tres entidades.

Más información aquí, aquí y aquí.

Gracias a nuestros amigos de Alhen y a Juan Angel Garza Vite (UANL) por mantenernos informados.
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Patricia Covarrubia

FTA between the EU and Colombia-Peru, still a hot topic

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Thanks to Xavier Seuba for making the blog aware of a short note which appeared in IPR Helpdesk titled: The IP chapter of the new Treaty between the European Union, Colombia and Peru from the public health perspective.

Xavier is the author of this note and he starts by giving a background on the association agreement that both blocks: the EU and the Andean Community were seeking. He explains that “the original EU proposal to the Andean States contained provisions that were TRIPS plus, other ones that were TRIPS extra and others that were even EU extra.” I think that we can call them ‘XXL’ – I just remember this letters that appear to be the trade mark from my trip to the US (everything was really huge: cars, beds, portion of foods, number of people attending the conference and my bill!!). Anyway, he affirms that the final text of the agreement reflects the priority of the EU - IP enforcement. There is, he observes, an “exclusion from the final text of the possibility to control patented goods in transit, the elimination of the criminalisation of patent infringements and, among other things, the reference to TRIPS article 44.2 when dealing with injunctions.”

He also covers the issue of ‘data exclusivity’ noting that the European formula (8+2+1), was reduced to 5 years – keeping the same term as others agreements already signed between the U.S. and Colombia and Peru.

According to Xavier, “the EU, Peru and Colombia made a great effort to draft the general provisions of the IP chapter so the numerous interests at stake were duly reflected”. You can read the note here.
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Monday 7 June 2010

Patricia Covarrubia

Mexico: digital downloads and copyright

Last week, the Coalition for Legal Access to Culture (a body that represents artistic and cultural industries such as the Society of Authors and Composers, the Association of Phonogram Producer and the General Society of Writers and many others) presented, along with Ipsos (one of the world’s largest research companies) a report regarding Digital Downloads.The main line was to try to stabilize the copyright on the Internet.

According to the Coalition, the cultural sector in Mexico accounts for 6% of GDP, and its international level is located at number six of the 20 countries that most exported cultural property - the only Latin American country on the list. Roberto Cantoral, chief executive of the Coalition said that "although the works are intangible products, reform is urgently needed to protect our creativity as we can not compete against the illegal and gratuitous.” He explains that there is an increasing interest in its legislation. He mentioned that the problem is likely to worse when the bandwidth grows in the country – at the moment is 2G while European countries have 10G.

During the press conference, it was reported that during 2009 only in Mexico were downloaded illegally a total of 5100 million songs, a figure 15 times the number of records sold that year; 470 million videos, 24 million movies, 16 million TV shows; 26 million books; and over 1878 million protected images.
Among the Internet sites with the highest number of illegal download are: Ares (71%), YouTube (58%) and limewire (14%) among others. The final results is a loss of 13 billion pesos for the industry.

The Coalition proposes to strengthen cultural heritage and advice to fight piracy in favour of online copyright. To achieve this, Roberto Cantoral explains: “ there is the need to force manufacturers of digital music players such as MP3 to pay a ‘right’”. He adds there should be an adjustment to Internet Service Providers – creating strategies that protect copyright. Roberto Cantoral said that in the end, "we seek the intellectual product to be protected equally as any other commercial product that is purchased in a convenience store". I do agree.

Federico de la Garza, director of the Motion Picture Association (MPA), said that in Mexico there is a legal gap with respect to which authority is responsible for preventing this illegal activity. Roberto Cantoral, president of the Coalition, said the amendment to the Industrial Property Act to prosecute ex officio to piracy, is not enough. "We will conduct an awareness campaign directed at the civil society, industry and government to address this issue," he said.

The initiatives have already been sent to the House of Representatives and the coalition hopes that next year the laws come into force.

For more info click here, here and here.
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Thursday 3 June 2010

Patricia Covarrubia

Brazil 2014 World Cup Logo revealed

Brazilian newspapers and websites published a few days ago what will be the Logo of the World Cup 2014. According to those paper and sites, the logo was chosen after examining six other logos. The judges were seven people: Ricardo Teixeira (President of CBF), Jerome Valcke (Secretary of FIFA), Oscar Niemeyer (Brazilian architect), Paulo Coelho (Brazilian writer), Gisele Bundchen (Brazilian model), Hans Donner (Brazilian, head visual designer of TV Globo) and Ivete Sangalo (Brazilian pop singer).

The logo contains three hands that are carefully shaped into the cup trophy and the number 2014 can be seen from the blending. At the OHIM two figurative marks have been filed for registration (29/03/2010): one with the word “Brazil” written under the cup(Trade mark No 008989402), and another one which excludes the word (Trade mark No 008989601). The logo was registered without claiming colours. However I note that all info and pictures from the news do claim that the logo is ‘yellow and green’ as to correspond with the national flag of Brazil.

Websites are running polls and it appears that the surveys reveal that most of the readers did not like the logo – there is always going to be a dislike, I do remember the same matter when the London 2012 logo was unveiled. There is also the dispute regarding the ‘z’ instead of the familiar ‘s’ in Brazil (or Brasil for that effect).

The logo will be officially presented at the World Cup 2010 on July 8th, a few days before the final.
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