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!

Saturday 21 October 2017

Rodrigo Ramirez Herrera @ramahr

Colombian Constitutional Court mandates Google to eliminate a blog from its platform Blogger

On 2016, John William Fierro Caicedo, the owner of the company ‘Muebles Caquetá’ (Caquetá Furniture), instituted an action of ‘tutela’ against Google Inc. and the Ministry of Information Technology and Communications of Colombia (MinTIC) for the alleged violation of his rights to intimacy, good name, and dignity (Articles 15 and 21, Political Constitution of Colombia).

This request was made because a person using the Blogger platform (owned by Google Inc.) anonymously created a blog named ‘No compren en Muebles Caquetá! Estafadores!’ (Do not buy at Caquetá Furniture! Scammers!). This blog contains some slanderous affirmations, such as: ‘Furniture Caquetá, directed by the fraudster William Fierro, is dedicated to defrauding people by various means. They ask for an advance or the full payment first, and after it is received, they will disappear with your money.’ (Muebles Caquetá la cual dirige el estafador William Fierro, se dedican a estafar a la gente por diversos medios. Piden primero un adelanto o el dinero completo y después de que se lo entregas desaparecen con tu dinero).

John William Fierro Caicedo not only denies such accusations, but also affirms that the content of this blog has brought problems to his family and his business.

In response to the action of ‘tutela’, the MinTIC argued that according to Law 1341 of 2009 and Decree 2618 of 2012 it is not the national authority responsible for the surveillance and control of the companies publishing contents on the web, and requested its dissociation from the legal process.

For its part, Google Inc. affirmed that ‘although the company owns the tool www.blogger.com, it is not responsible for the information and content written and shared by users on the aforementioned digital platform, and that Google, for its part, only acts as a tool processor and as such, imposes policies on users, but does not manage, control, or produce contents’ (si bien la compañía es propietaria de la herramienta www.blogger.com, no es responsable por la información ni los contenidos redactados y compartidos por los usuarios en la mencionada plataforma digital, y que por su parte, Google solo actúa como procesador de la herramienta y como tal, impone políticas a los usuarios, más no maneja, controla, ni produce contenidos).

On August 2016, the Civil Municipal Court 21 of Bogotá handed down a ruling denying the constitutional protection requested by John William Fierro Caicedo, and disconnected the MinTIC from the process. In addition, it affirmed that neither Google Inc. nor Google Colombia Ltda. are responsible for the infringement of the human rights of the petitioner because it is not their obligation the ‘rectification, correction, elimination or complement of the information upload by users’ because they only act as tool processors.

Finally, this case was analysed by the Constitutional Court that, in Ruling T-063A/17 of this year, decided to revoke the decision of the Civil Municipal Court. As the allegations made on the blog against Muebles Caquetá and its owner were not proven, the Court considered them in violation of the rights to good name and dignity of the petitioner. Consequently, it was ordered that: (i) Google Inc. and Google Colombia Ltda. have to eliminate the blog http://muebles-caqueta.blogspot.com.co; and, (ii) the MinTIC have to establish a national law for the protection of the rights of users on the web, particularly those concerning abusive, defamatory, dishonourable, slanderous and injurious posts that undermine the right of dignity.

It is worth highlighting that although the Court acknowledged that under the US legislation Google Inc. might have not responsibility for the contents published using their processors, it mandates that both Google Inc. and Google Colombia Ltda. in carrying on their activities in Colombia have to respect the rights of users and consumers in the country.

Post written by Florelia Vallejo Trujillo
Read More

Thursday 5 October 2017

Patricia Covarrubia

Chile's project: promoting, protecting and boosting traditional products

    No comments:
Through the ‘Sello de Origen’ program the Chilean presented to the legal representative of the Sociedad Agrícola Punucapa SA, producers of Cider. With the certification of a Denomination of Origin (DO) to ‘Sidra de Punucapa’. The successful application was the result of a collective effort to “recognize, distinguish and protect this traditional low alcohol drink, based on apple juice, whose history goes back to the middle of 1800.”

Sidra de Puncapa is totally handmade, and it is said to be derived from the traditions of the place. This, added to the “climate of the area, with humid oceanic characteristics with low thermal oscillation and considerable rainfall, allow to obtain a unique product that has led to its recognition.”

Looking at these characteristics one can see why this fall under DO and not just a geographical indication. The Chilean Industrial Property Law defines a Geographical Indication as aimed to “identify a product as originating in the country or region or locality in the country, when its quality, reputation or another property is fundamentally attributable to its geographical origin.” From here you can notice that the Sidra de Puncapa is not just a locality where the product is produced and manufactured and that it has a reputation but it goes farther than these factors. Following then the definition of DO under the Chilean Industrial Property Law we see that DOs “identify a product as originating in the country or region or locality in the country, when its quality, reputation or another property is fundamentally attributable to its geographical origin, also considering other natural and human factors that affect the product’s properties.” We therefore understand that Sidra de Puncapa has other special characteristics that are essentially due to the geographical environment in which they are produced. It bears a qualitative and stronger connection between the product and the place of origin which is determined by a set of natural factors (climate), and by a set of human factors (know-how such as in this case the traditional knowledge).

The Chilean Ministry of Economy together with the Chilean Instituto Nacional de Propiedad Industrial (INAPI) launched the program ‘Sello de Origen’. The project aims to promote traditional products through the grant of Geographical Indication (GI), denomination of Origin (DO), Collective Trade Marks and/or Certification Marks.

Source INAPI. More information about GIs in Chile here. There is also a Factsheet specifically focused on the Chilean system to protect Geographical Indications produced by the Latin America IPR SMEs Helpdesk here.
Read More

Wednesday 4 October 2017

Patricia Covarrubia

A legal battle over a ‘Champagne Biscuit’

    No comments:
Carozzi, a Chilean multinational company specialised in the food industry, won a legal dispute against the Comité Interprofessionnel du Vin de Champagne (Inter-Professional Committee for Champagne Wine - CIVC) for the use of the word Champagne to identify one of its products.
The controversy began two years ago when Carozzi requested the registration of the mark ‘Costa Galleta Champaña’ (Coast Champagne Biscuit) before the National Institute of Industrial Property (Instituto Nacional de Propiedad Industrial – INAPI). At that time, the Committee for Champagne Wine opposed the registration of the mark, claiming the non-authorised use of a French appellation of origin recognised by Chile and world famous sparkling wine.

Pouring the news...
The INAPI initially rejected the registration of the mark. However, Carozzi appealed the decision, and the Chilean Industrial Property Tribunal later granted its registration. Dissatisfied with the decision, the Committee for Champagne Wine filed an appeal (in cassation) with the Supreme Court. The Second Chamber of the Supreme Court of Chile analysed whether the registration of the mark ‘Costa Galleta Champaña’ would affect the intellectual property rights of the French wine sector due to possible confusion among consumers generated by the use of the word ‘Champagne’, as alleged by the CIVC.

In that regard, the Court concluded that the mark and the appellation of origin could coexist peacefully on the market because there is no risk of misunderstanding, deception or confusion on the part of consumers. As expected, the Committee for Champagne Wine filled a revocation before the Constitutional Court, which upheld the decision.

In this way, all legal instances were used and, despite the utilisation of a protected appellation of origin, Carozzi can freely use the word Champagne as the name of one of its most popular products in Chile.

Sources here, here and here.

Post written by Florelia Vallejo Trujillo
Assistant Professor, Universidad del Tolima, Colombia
PhD Candidate University of Nottingham, UK
Read More

Tuesday 3 October 2017

Patricia Covarrubia

EU Piracy Study Finds No Connection between Piracy and Sales

    No comments:
Most of us have participated in a form of digital piracy in one form or another. Maybe you’ve downloaded a song off the internet, or even found a copy of your legal textbook online and paid less than what the published intended? Once you turned off your computer and found your reflection in the darkness of the screen, did it betray your abject feelings of guilt? Perhaps not. After all, a study in 2012 found that 57% of the world’s computer users confess to pirating software, and in April of 2017, a study found that 93% of millennials who pirate video content experience no guilt.

Piracy has become normalized in the modern world, despite efforts from publishers and online retailers to criminalize, at least morally, the act of digital theft. The premise of many such corporations, especially those involved in video games and audio-visual content, is that the use of piracy is directly proportionate to the amount of sales lost. In an attempt to clarify this connection, the European Commission paid over € 300,000 to initiate a study which examined the sales of copyrighted music, books, videogames and movies, and how piracy impacts them. The study itself was completed in 2015, but was intentionally prevented from going public, claims EU Law blogged Maren Schmid, because it did not suit the Commission's agenda. It has recently come to light thanks to Julia Reda, a European Parliament Member, representing the ‘German Pirate Party,’ who posted the study in her personal blog after gaining access using an EU Freedom of Information Request.

The study itself is remarkably clear in its findings, examining data from EU countries and concluding that the correlation between piracy and profit is nonexistent except when considering major blockbuster films. Interestingly, the study also confirms what prolific pirates have been claiming for decades, that access to a product at a reasonable rate using a reasonable platform encourages widespread legal consumption.

A study in March 2017 found that the eBook pirates are predominately old, educated and wealthy, making between 60,000 to 100,000 a year . Why would these wealthy individuals seek out illegal platforms when they can easily afford to purchase? Upon surveying contemporary eBook marketplaces, the general consensus is that eBooks cost more than their printed counterparts, even though they lack a physical condition. Even a wealthy individual may feel cheated or taken advantage of when considering purchases. This is highly discouraging to any prospective buyer, and pressures them into piracy. Changes to this confounded system would be mutually beneficial for all parties involved, giving reasonable prices to consumers at the same time as raising the profits of the publishers. For an example of when this works, examine platforms like Netflix for video consumption and Steam for videogames, which have streamlined access to content and have enjoyed massive consumer participation and profit margins.

If the publisher perspective was to be maintained, that piracy was a dominant force in limiting profits, why would Netflix and Steam have a combined userbase of over 200 million when all the content on their respective platforms can be pirated? This study confirms what has been recognized by the pirating communities for decades, that if the platform is accessible, and the price is reasonable, piracy becomes a non-issue.

Post written by Dalton Tucker
LLB University of Buckingham
Read More