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!

Monday 31 August 2015

Patricia Covarrubia

It's a new day, it's a new month, it's a new fee...and the feeling is

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Image result for virgin islands
birds flying high, you know how I feel...
From the Virgin Island we received a follow up piece regarding the forthcoming increase in trade mark registration fees.

Katherine Van Deusen Hely writes as follows:
Beginning September 1st, 2015, the British Virgin Islands will welcome its modern new trademark regime. Along with the new laws will come new (and much increased) fees. Previously charging some of the most modest official fees in the Caribbean region, the new trademark fees will go up significantly once the new laws go into effect. For example, the new official fees for single class registrations will range from $200-250 as compared to the current fees of $15-64. Likewise, the fees for renewal will be raised from $10-40 per mark to $250 for the first class and $150 for each additional class in a multi-class registration.
Katherine Van Deusen Hely, founder of Caribbean IP, is available for any comments or questions regarding these changes. Her contact information is below:

Caribbean IP
Katherine Van Deusen Hely, P.L.L.C.
224 Datura Street, Suite 513
West Palm Beach, FL 33401
T: (561) 283-1800
E: Katherine@Caribbean-IP.com
W: www.Caribbean-IP.com
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Thursday 20 August 2015

Gilberto Macias (@gmaciasb)

Protección judicial a la Denominación de Origen “Champagne” en Colombia

En el que es el primer caso judicial en la historia de Colombia relacionado con la infracción de una Denominación de Origen protegida (DOP), la Superintendencia de Industria y Comercio (SIC) ha concluido, preliminarmente, que el utilizar expresiones como “Champaña” y “sabor artificial de Champaña”, en productos que no provengan de la provincia francesa de Champagne (Terroir Champagne), es un acto que infringe los derechos de propiedad industrial derivados de la DOP “Champagne”.

El caso en cuestión deriva de una solicitud de medidas cautelares instaurada por el Comité Interprofessionnel Du Vin de Champagne en contra de la empresa colombiana Vinos de la Corte por el uso no autorizado de la DOP “Champagne”.

Los vinos espumosos identificados por la demandante con la denominación ‘Champaña’ provienen del municipio colombiano de Santander de Quilichao (Cauca) y no de Francia.

De momento la SIC ha ordenado a la demandada, como medida cautelar, abstenerse inmediatamente de utilizar expresiones como “Champagne”, “Champaña”, o “sabor artificial Champaña”, así como a retirar inmediatamente cualquier aviso, publicidad o comunicación pública de dichas expresiones en sus productos.  

Hecho que, viendo la página web de la demandada, aún no se ha cumplido.

Estaremos siguiendo de cerca este  asunto pues el mismo resulta muy interesante y relevante para ver cómo se protegen, y respetan, las indicaciones geográficas y denominaciones de origen protegidas de terceros países.

Más información directamente en el comunicado publicado por la Superintendencia aquí.
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Wednesday 19 August 2015

Patricia Covarrubia

Cut & Paste: plagiarism in the faith

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Reading one of the main Peruvian newspaper ‘El Comercio’ I became aware of a debate among religious, academics, newspapers, blogs and the like that is occurring in the country. The debate is around copyright and the idea/expression dichotomy regarding teaching a religious faith.

Image result for cardinal
A proper cardinal: are you talking to me?
Several times Lima's Roman Catholic archbishop, Cardinal Juan Luis Cipriani has written a column in the newspaper ‘El Comercio’. Last week a blog called ‘utero.pe’, which is about religious experience, noted that Cardinal Cipriani has plagiarized his writings in the newspaper. The allegation was that Lima's archbishop included six paragraphs from the book Communio by Cardinal Joseph Ratzinger (Pope Benedict). When this accusation was published the readers started a wish hunt! And many has taken the trouble to go through the Cardinals’ newspaper writings and placed into the google search box…and …yep…the results have shown several writings (whole paragraphs) that have been taken from other sources and have not being properly attributed to their authors (screen shots can be seen here).

Cardinal Cipriani then took the time to apologise for not having mentioned his sources but continue to say that popes do not have intellectual property rights over their words since they are part of the “heritage of the faith”. Here is where the debate has been quite heated because of this idea/dichotomy that exist in copyright. Ideas as such are not protected and thus the teaching by popes are indeed part of the heritage of the faith. Giving an example, my teaching comes part of the legacy of the alumni and they are free to use those teaching – teaching is a learning tool. However, another matter and quite contrary to what has been claimed in this debate is that there is not property right on the teaching. In my example as said, the teaching is a learning tool but another issue would be to record the teaching (audio or verbatim) and copy it and pass it as if it were coming as their own. The latter is what happen in the newspaper column. What Cardinal Cipraini was doing was not using the idea but the expression of it – indeed a copyright infringement. For example:
Art 42 of the Peruvian Copyright Law says “Lectures given either in public or in private by the lecturers of universities, higher institutes of learning and colleges may be annotated and collected in any form by those to whom they are addressed, provided that no person may disclose them or reproduce them in either a complete or a partial collection without the prior written consent of the authors.”
Cardinal Cipriani even suggested that because of the type of column he was writing, there was not space for indicating the source. And this misconception is followed by others that have taking the social media to say that because it is different when you write a book, or academic paper, or a column in a newspaper Cardinal was right not to acknowledge the sources. There is indeed exception to quotations for copyrighted material such as reviewing or criticism. However in the present case the Cardinal used the quotations to impart a teaching – the quotes were neither reviewed nor criticised. And even in this legal exception such quotes need to be fairly used.
Art 44 of the Peruvian Copyright Law says “It shall be permissible to make quotations from lawfully disclosed works without the author’s consent or payment of remuneration, subject to the obligation to state the name of the author and the source, and to the condition that such quotations are made in accordance with proper practice and only to the extent justified by the aim pursued.”
However note that there is another exception that can be thought of which is enclosed in Art 43 Copyright Law as follows:
 “With regard to works that have already been lawfully disclosed, the following shall be permitted without the author’s consent:(a) reproduction by reprographic means, for teaching or the holding of examinations at educational institutions, provided that there is no gainful intent and to the extent justified by the aim pursued, of articles or brief extracts from lawfully published works, on condition that the use made of them is consistent with proper practice, involves no sale or other transaction for consideration and has no direct or indirect profit-making purpose;”
Indeed, imparting the info disclosed by the Cardinal may have not needed ‘authorization by the author or payment of any remuneration’ (even though he was not imparting the teaching in an educational institution) BUT it was not exempt from the obligation to state the name of the author and the source. Even in the 'space' given in the column there was still the need to accommodate the paragraph with ‘quotations’ marks and to put in brackets the author for example Pope VI or Pope Benedict.

Image result for quotes plagiarismFinally, an issue that has not been debated is the issue of moral rights which the Peruvian law also regulates under Chapter II of the Copyright Law. In this case the right infringed was the ‘rights of authorship’ also known as the ‘paternity right’.

Due to this debate and the assertion by the Cardinal that he did use the writings of former popes without attributing them, the newspaper El Comercio made the decision to delete two articles by the cardinal and said it would not publish him again. This measure could have been taken due to the fact that Art 218 (c) of the Criminal Code establishes a penalty of either imprisonment or a fine when knowing that the copy or reproduction is illicit, it still distributes the said copy/reproduction to the public by any medium, or stores it.

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Monday 17 August 2015

Patricia Covarrubia

'I decide, I respect': educating younger generations to appreciate IP

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The Peruvian IP Office (INDECOPI) reports than during 2013 and 2014, “a total of 50,000 students from various public and private schools of Peru received didactic training on the protection of copyright thanks to the educational program ‘I decide, I respect: rejection to smuggling and respect for intellectual property’”.

The program
Image result for commercial which shows someone stealing a purse compare to piracyThe educational program is dedicated to students in their 4th and 5th year of secondary school. It aims to teach teenagers to appreciate, value and respect intellectual property and thus, reject piracy. By raising awareness the talks covers “the scope of copyright and the contribution of creativity and cultural industries to the country’s economic development.”

The program is supported by INDECOPI, as part of the Commission to Combat Piracy and Customs Crimes (CLCDAP). It involves designating key speakers who participate in the educational talks. Therefore, as INDECOPI has seen a success of this program, it has decided that by 2015 it would continue to impart more talks to more than 30,000 students nationwide. In fulfilling this goal, it reports that “during the first half of this year has managed to train 14,162 students, accounting for 47.20% of projections.”

The program goes in line with several campaigns brought by the INDECOPI in regards to the protection of intellectual property in general. Indeed, there is no point to have legislations in place when the society is not aware of what actually is protected, what and why it is wrong. I remember several years ago, in the era of hiring DVDs [cannot remember if I actually watched it on cinemas], a very powerful advertising called “You wouldn't steal a car...You wouldn't steal a handbag... Piracy. It's a crime.” The advertising indeed was making the audience aware of not just the issue (downloading movies) but actually what the crime was and comparing it to more visual situations such as stealing a car or a bag. Particularly I believe that the culture of a country plays a crucial role.

In previous posts I have indicated my astonishment when wanting to purchase a CD in my country and could not do so. In 2013 while visiting family members in Venezuela I wanted to bring back some CDs with traditional music and the only music shop that I could find (in a very nice shopping mall) was someone with a table placed in a corridor selling well presented CDs with covers but were actually not original. Of course, the streets are full of the so-called ‘informal marketplace’, fitted tight with tents and tables selling textiles, pirated music and films, electronics and all the likes. How do you combat piracy, when it appears to be the ‘normal’ economy of a country? I strongly believe that a well-educated society (in all aspect of life) is fundamental. SO well done Peru! every little helps.
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Friday 14 August 2015

Rodrigo Ramirez Herrera @ramahr

MOVISTAR demanda por el "vomistar" de WOM

En marketing dicen que no hay publicidad mala, lo importante es que hablen de ti. Y eso parece ser que está pasando con WOM.

Movistar Chile interpuso una demanda en contra de la empresa de telecomunicaciones WOM (Nextel S.A.), a quien acusa de competencia desleal y trato peyorativo a su marca y al resto de la industria.

La demanda interpuesta por Telefónica Móviles Chile S.A. (Movistar) en el 16º Juzgado Civil de Santiago de Chile (rol C-14687) se basa en que la demandada en su campaña para entrar al mercado chileno ha hecho referencia directa a algunos de sus competidores en el mercado de la telefonía móvil utilizando slogans y frases publicitarias de fácil recordación que, o deforman las marcas de los competidores para ridiculizarlos, denigrarlos o desprestigiarlos, o utilizan estas marcas para hacer juegos de palabras, o como dice la demanda, "parafrasean frases usadas en campañas que alguna vez fueron desplegadas por otras empresas del sector".

En ese contexto general, Movistar basa su demanda en que la publicidad utilizada por WOM utiliza la siguiente frase (considerada como acto material público y notorio):

"Que al navegar no te den ganas de vomistar. Prepárate. WOM".

La demanda agrega que WOM está tratando de “desviar clientes sin tener que realizar inversiones, innovación ni esfuerzo comercial alguno, como corresponde a una libre y sana competencia […] Los nuevos inversionistas que tomaron el control de la compañía demandada, no previeron que llegaban a un país serio, dotado de legislaciones e instituciones que resguardan el correcto y sano funcionamiento de los mercados, y en el que no se permiten atentados a la libre competencia ni a la necesaria lealtad y buena fe que debe informar las relaciones entre competidores”.

Movistar funda su demanda en el artículo quinto de la ley 20.169 ejerciendo las cuatro acciones que dispone la norma: cesación o prohibición del acto, declaración del acto como competencia desleal, remoción de los efectos e indemnización de perjuicios por daño moral o extra patrimonial por 40.000 UF ( 1.500.000 euros aproximadamente).

Las frases usadas en la campaña de entrada que tuvo WOM en Chile hace un par de meses geneneraron además una demanda de Claro y también Movistar, en el Tribunal del Consejo de Autorregulación de Ética Publicitaria (Conar).

Por su parte, Wom en su contestación estimó “inconcebible” la deslealtad concurrencial pues no se puede pensar en ser competencia de Movistar, debido a la alta concentración de tres actores (Movistar, Entel y Claro), quienes poseen más del 90% del mercado actual. Al que le quepa el sayo que se lo ponga.

Fuente: www.pjud.cl (rol C-14687/ 16º JL Civil Santiago)
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Thursday 6 August 2015

Patricia Covarrubia

Geographical Indications: to be or not to be (some thoughts)

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In Brazil, July was a prolific month since it saw the 5th national wine to be granted a Geographical Indication (GI). The application for a GI came in the form of Indicação de Procedência (Indication of Source)and was filed about a year ago by the Associação Farroupilhense de Produtores de Vinhos, Espumantes, Sucos e Derivados (Afavin).

The Brazilian IP Institute (INPI) informs that the formal GI request required a “detailed dossier with the geographical delimitation, the characterization of viticulture (vineyards and wineries), production processes, the characteristics of chemical and sensory quality of the wines, including the evidence of the reputation of the region as a producer of fine wines.”

Mr Tonietto, the technical coordinator of the project explained that this GI difference itself from the others since the enclosed area “corresponds to the historical producing region of moscatéis grapes from Serra Gaúcha, where there is the highest concentration of these varieties in the country.” Adding, he notes that obtaining this GI will enable “hundreds of producers and dozens of wineries established in the demarcated region to put in sparkling moscatéis... still wines that express the originality of this terroir".

Afavin’s president also demonstrates his views on this achievement by noting that the GI emphasizes the moscatéis drinks and that it can be denoted as an positive strategy that values and influences local strengths giving it more acceptance in the domestic market and having an export potential.

The other 4 national wines:
‘Vale dos Vinhedos’ (2002) as an Indicação de Procedência but later on turned into a Denomination of Origin (DO); ‘Pinto Bandeira’ (2010) as a Indicação de Procedência; ‘Altos Montes’ (2012) as an Indicação de Procedência; and finally, ‘Monte Belo’ (2013)also as Indicação de Procedência. All the wineries including this new entry, have received technical and scientific support from Embrapa Uva e Vinho.

Support to GIs in general:
In the same line and promoting GIs, 18 GI 's exhibitors participated in the ‘Hortifruti Brasil Show & Foods Brasil 2015’ in Curitiba. The event is forum for presentation, discussion and approach to business throughout the supply chain, bringing together different sectors, from the producer to the end consumer.

Representing INPI, Ms Lucia Fernandes attended the event and moderated the panel entitled ‘Market Opportunities and Gastronomy for Products which are differentiated by Geographical Indications and Certificates’.

Some thoughts:
1) While this post acknowledges the agricultural products of Brazil, one cannot forget that Brazil also protects non-agricultural products under the GI system. Examples of GIs from Brazil are: golden grass Jalapão, used to make bags, bowls, jewellery and other pieces; clay pots Goiabeiras; Vale dos sinos for finished leather; opalas preciosas (opal gem); hand-crafted tin of Sao Joao del rei; and even stones! such as Pedra Carijo-Paduana, Pedra Madeira-Paduana; and finally Pedra Cinza-Paduana. [all of these have been reported by this blog].

Image result for geographical indication
2) Despite the fact that GIs are a way of ensuring and protecting the origin of goods and they are mainly used to promote the commercialization of them, there is the need to acknowledge that they can also be used to safeguard and protect a product. For instance: the set-up of mechanism to encourage manufacturing and keeping alive a tradition; establishing regional centres for craftsmanship or creation of civic association of artisans; cultural mapping; helping to mobilize international cooperation and assistance for interested parties; strengthening the mechanisms through which the element is passed on (educational environments); organizing exhibits; stressing the significance of the product in question and thus, acknowledging the community involve; encourage the government to award funding; amongst others.

Image result for geographical indication3) We need to recognize that the 'GI effect' may often be small or non-existent. For example in the WTO’s 2004 World Trade Report the case of DARJEELING tea was examined and the researchers found that the GI protection given to Darjeeling “has had no noticeable effect on price over a twenty year period”. (Bramley, C., Bienabe, E., and J. Kirsten, The Economics of Geographical Indications: Toward a Conceptual Framework for Geographical Indication Research in Developing Countries). Moreover, Carlos Correa also asserts that “seeking to quantify the current and, particularly, the potential, value generated by the use of a geographical indication is an extremely difficult task.”

4) We also need to be aware of that many countries do lack the capacity to establish the system or do not trust the system. For example, because there are non-transparent public institutions or because farmers do not want to have the central government 'own' the GI in question (Mexico and Venezuela are cases where the GI does not belong to the holders but to the government).

5) There is also the issue that demanding production standards attached to a GI may become a highly politicized, and perhaps dysfunctional process for small business or farmers.

I am sure that I am missing other points, but for today I feel that I leave you with enough hints to develop your own thoughts.
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