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 13 March 2018

Patricia Covarrubia

Soft drinks and the right to freedom of expression

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The right to freedom of information of consumers cannot be unduly limited, the Colombian Constitutional Court Says.

Through sentence T-543/17, the Colombian Constitutional Court held that the consumer’s right to freedom of information cannot be limited, and that any decision that could have a negative impact on it, only can be adopted after a due process, ensuring the protection of the fundamental rights of all actors involved.

The fact given rise to this decision is the request of the Colombian soft drink company Postobón to the Superintendence of Industry and Commerce (SIC)for the prohibition of displaying on TV of the education campaign on the health problems caused by the consumption of sugar-sweetened drinks that was developed by the Colombian Association of Consumer Education.

As a result, the Superintendence ordered to suspend the transmission of the campaign on TV while the validity of the information on it was checked. The decision was made on the argument that there was a risk that the advertisements might mislead the consumers since the information provided did not contain the scientific sources supporting them and, therefore, did not meet all the requirements of ‘clarity, truthfulness, adequacy, opportunity, accuracy, comprehensibility, precision, and competence.’

Arguing a violation of the rights of freedom of expression and due process, the Colombian Association of Consumer Education argued against the decision. Nonetheless, this was confirmed by the Bogotá Circuit Court No. 4 on the first instance, and by the Civil Chamber of the Tribunal Court of Bogotá on the second instance. In sum, these Courts affirmed that the acts of the Superintendence were directed towards consumer protection, given that the Association did not present the scientific evidence supporting the content of the advertisements claiming threats to health by sugar consumption. Furthermore, they found no violation of fundamental rights.

A group of consumers also brought proceeding against the decision of the Superintendence. This group of citizens claimed their right to receive information about the potential damage to health caused by the consumption of sugar-sweetened drinks. This claim was denied in the first instance by the Family Division of the Superior Tribunal of Bogotá, but accepted by the Civil Cassation Court of the Supreme Court of Justice.

When reviewing the case, the Constitutional Court concluded that the decision adopted by the Superintendence of Industry and Commerce contravened the fundamental rights to freedom of expression, freedom of information, and due process. Similarly, that the decision constituted a measure of censorship because it established a prior check on information. For those reasons, it ordered to the Superintendence the withdrawal of the administrative act prohibiting the public display about consumption of sugar-sweetened drinks.

The case can be read here (in Spanish)
Post written by Florelia Vallejo Trujillo
Assistant Professor, Universidad del Tolima, Colombia
PhD Candidate University of Nottingham, UK

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Thursday 8 March 2018

Patricia Covarrubia

Genetic Resources and Patent Applications

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From the Brazilian Instituto Nacional da Propriedade Industrial (INPI) we became aware that as of the 27th February, 2018, INPI will start to issue formal Official Actions (Official Bulletin Code No. 6.6.1) for all patent applications filed in Brazil covering inventions related to the access to national genetic heritage and/or associated traditional knowledge (TK) - (código de despacho 6.6.1).

This will be automatically issued in all patent applications filed with INPI and so, applicants need to provide proof of registration and / or authorization of access to access to national genetic heritage and/or TK within 60 days of publication in the Revista Eletrônica da Propriedade Industrial (the Brazilian Official Bulletin).The applicant shall produce a Guia de Recolhimento da União (GRU) which is a ‘positive’ declaration to the access to national genetic heritage and/or TK. According to INPI, if the applicant does not provide such proof within 60 days, ‘it will be considered that there was no access to the access to national genetic heritage and/or TK, and INPI will continue the examination of the patent application.’ [wait…INPI will continue? so what is the point?]

INPI also informs that this formality is needed ‘because Law 13,133 / 2015 establishes that, for the purposes of regularization in INPI of patent applications applied for during the validity of Provisional Measure No. 2.186-16 / 2001, the applicant must present the
proof of registration or authorization of access to the national genetic heritage and /or associated TK within one year counted from 06/11/2017.’…does it mean that INPI will continue examining the application but yet will not grant the patent because there is a need to this formality?

I don’t feel supportive of this notification made by INPI. It is like…hello, please submit the proof, if you don’t, then no worries we’re still going ahead with examining your application. This guidance or declaration made by INPI should have been better defined and actually challenging the applicants, e.g. ‘no proof no examination’ (especially in an office that suffers from backlog). Firstly, a company continuing with their application will just want to test the waters with their invention and once they see that they have a chance of being successful, then would look for the proof of registration and / or authorization of access to the national genetic heritage and / or associated TK.

Source INPI.
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Tuesday 6 March 2018

Patricia Covarrubia

The sweetest banana in a pickle: GIs in Brazil

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The Association of Banana Growers of Corupá (Asbanco) in Brazil, has recently made an application for a Geographical Indication at the national IPO (INPI). The GI is for bananas grown in the region of Corupá which claims to be the ‘sweetest in the country’.

Brazil going bananas!
Asbanco is a non-profit organization that “aims to allow banana farmers to act in an organized way in the pursuit of sustainable development of the activity, always striving to maintain the balance between production and the environment, providing the satisfaction of people living in the rural environment.” According to INPI Asbanco, the association is formed by 1,000 families who are small farmers. It is located at the foot of the Serra do Mar, at altitudes of up to 500 meters. It is claimed that plantation and harvesting is a 110-year tradition. According to the producers, the Corupá banana is considered the sweetest in the country and so one can observe the logo they use ‘BANANA DE CORUPÁ - DOCE POR NATUREZA!’ (Corupa’s banana – sweet by nature). Asbanco asserts that the banana industry in the region is ‘a generator of jobs and taxes.’

A pickle!
It is expected that the GI certificate will be delivered this year during the Banana Day celebration (#bananaday #18April). However…here comes the pickle! The association needs to make a decision: to add or not to add? shall the GI be extended to all products which derive from bananas from the Corupá Region?

Decisions were made and they have finally included these products. Yet, they understand that they are working against the clock and  they need to describe the products and to elaborate on their form of production asap.

Awaiting its analysis, Asbanco is confident on the application, pending the proposed corrections. They are also participating in a Geographical Indication Workshop run by INPI in August this year.

Source and further information INPI, Corupa and Asbanco facebook page.
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Saturday 3 March 2018

Patricia Covarrubia

Enredados is here! a newtwork for all IP and ICH issues

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Celebrating the formal launch of 'Enredados' I am proud to invite you to an event taken place in London, Wednesday 28 March, 2018 (book here, free of charge). The event has two sessions under the name 'Copyrighting, Tradition and the Flight of the Condor':

1.- A talk by Prof Valdimar Tr. Hafstein from the Department of Folklore, Ethnology, and Museum Studies, University of Iceland. He is the author of a number of articles and books on intangible heritage, cultural property, international heritage politics, folklore, and copyright in traditional knowledge. He is the former president of the International Society for Ethnology and Folklore (SIEF) and former chair of the Icelandic Commission for UNESCO.

2.- A preview of a film lead by Prof Valdimar.

This event will celebrate the formal launch of Enredados, an online network of policymakers, academics and practitioners in the fields of IP and ICH established to encourage debate on the following issues:
•the intersections between IP and ICH-related policy;
•the relationship between IP and ICH safeguarding; and
•how IP protection might be used as a tool for safeguarding ICH

Enredados coordinators and event organisers:
•Charlotte Waelde (Professor of Intellectual Property Law,
Coventry University)
•Harriet Deacon (Visiting Research Fellow at the Centre for Dance Research, Coventry University)
•Patricia Covarrubia (Senior Lecturer in Law at the University of Buckingham and IP consultant at Latin America IPR SMEs Helpdesk).

For more info in the network, happy to answer any questions via e-mail.
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Friday 2 March 2018

Patricia Covarrubia

Mexico: it’s all about the cheese!

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Since May 2016 the EU and Mexico are trying to modernize the trade agreement between them. By January 2018, there has been eight round of talks/negotiations.

On of the key issues that we see in the negotiation is Geographical Indications (GI). There is no possibility of registering foreign GI in Mexico although Appellations of Origins (AO) are feasible. Therefore, if a foreign company would like to protect their GI it can do so by the multilateral international registration i.e. Lisbon Agreement (Mexico is a member). The other route was by the bilateral agreement but this is limited to spirits and yet again only for AO. A foreign company could also register its GI as a ‘collective trade mark’.

The GI table of negotiation
There are in excess of 330 EU products in the list of negotiation, and this includes the sensitive product cheese. This is so because Mexico’s dairy industry produces many cheeses which names, or better say, GI names, originate from EU terroir.

On one hand, the EU claims their exclusive right to use such names, while on the other, Mexico claims that they have the right to keep producing such products. This is based on the fact that the names have become either generic or even acknowledging a different cheese that has become very much a national product and yet using a GI name. An example in mind would be the ‘Queso Manchego’, a cheese product coming from La Mancha region, Spain. According to its Dossier No ES/PDO/0117/0087 and the EU Commission implementing Regulation No 129/2012 of 13 February 2012, ‘Queso Manchego’ is “[p]ressed cheese made from milk of ewes of the ‘Manchega’ breed, aged for a minimum of 30 days for cheeses weighing up to 1, 5 kg and from 60 days up to a maximum of 2 years for larger cheeses.” The Mexican version is made from cow’s milk and so, the Mexican counterparts claim that the Manchego cheese “is ingrained in local culture and does not even resemble the Spanish original.” Moreover, the head of the National Chamber of Dairy Industries claims that “people identify it as a very national product that isn’t even related to the European version”; “people don’t expect a Spanish Manchego when they go to the supermarket and ask for a Manchego.”

Say 'Cheese'.
Next meeting would be in Brussels. The EU sees the latest talks as ‘very good’. Table of negotiations already closed are: competition, SMEs, transparency, sanitary issues, good regulatory practices, and trade and sustainable development. Pending are: market access and rules, including geographical indications and investment protection. The EU is Mexico’s third trading partner. Since 2000, the EU and Mexico trade in goods has increased by 180% which amounted to €53 billion in 2015. (source: here)

The proposed chapter on IP by the EU is available here.
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