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!

Tuesday 24 May 2016

Patricia Covarrubia

Exporting is Great

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

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

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

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

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

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

Thanks UKIPO for extending the invitation to the Latin America IPR SME Helpdesk. We are here to make it easier for SMEs to protect their IPR in our region.
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Monday 16 May 2016

Patricia Covarrubia

Intellectual Property along does not promote innovation

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

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

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

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

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

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

Source here.
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Friday 13 May 2016

Patricia Covarrubia

Do you remember why IP protection is needed?

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

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

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

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

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

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

The press release can be read in full here.
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