IPTango

Friday, 29 July 2022

Mexico: cultural (mis) appropriation

Patricia Covarrubia July 29, 2022 No comments:

Last week, the Mexican Secretary of Culture sent a letter to the company SHEIN asking to clarify the launch of the piece “Flower trim top with floral print” that is identical to a garment designed by the handicraft brand ‘ YucaChulas’.

The statement reads ‘” cultural elements whose origin is fully documented’, which generate economic rewards in the communities that sell them. The blouse, short huipil, was created in the Mayan communities of Yucatan, Campeche and Quintana Roo, and its design would not be possible without knowledge “transmitted from generation to generation, product of the collective creativity of the Mayan people.”’ YucaChulas also went to social media (here) to express their dismay against SHEIN due to the lack of recognition of the work made by local artisans and how plagiarism diminish and devalued their culture. Since then, SHEIN has removed the garment and noted in a statement that it was not their intention ‘to infringe anyone’s valid intellectual property and it is not our business model to do so.’

Photo: El Universal - YucaChulas left; SHEIN to the right

As you know, the protection of cultural expression through intellectual property is a heated debate. And now, WIPO has advanced in this topic – see early publication here. In the meantime, some countries, especially in Latin America, have some kind of legislation that regulates the use of traditional knowledge, but yet there is not clear procedure or enforcement, it seems like just ‘good practice’. However, one must say that the Panama Law No. 20 on the Special Intellectual Property Regime with Respect to the Collective Rights of Indigenous Peoples to the Protection and Defence of their Cultural Identity and Traditional Knowledge, seems a solid one. Others, like Colombia, continues to use Geographical Indications protecting cultural expressions and traditional knowledge, although this protects the product linked to the origin, rather than the product per se. The same strategy is used in Peru, where you will notice several ‘collective marks’. Yet, IP is territorial and these legal tools, used in Panama, Colombia and Peru as examples, only will stop the ‘plagiarised’ product to be sold in their countries, but can continue to sell it in other jurisdictions. [sad]

Read the news at El Universal MX

Asamblea General de la OMPI avanza hacia la celebración de conferencias diplomáticas sobre diseños y conocimientos tradicionales asociados a recursos genéticos

Verónica Rodríguez Arguijo July 22, 2022 No comments:

El 21 de julio de 2022, los Estados miembros de la Organización Mundial de la Propiedad Intelectual (OMPI) aprobaron la convocación de conferencias diplomáticas sobre diseños y recursos genéticos, a más tardar en 2024.

Las conferencias diplomáticas son rondas de negociación en las que se adoptan o revisan tratados multilaterales.

La decisión de avanzar hacia conferencias diplomáticas se tomó durante las Asambleas de los Estados miembros de la OMPI, que se llevaron a cabo del 14 al 22 de julio de 2022, en relación con los siguientes instrumentos.

Propuesta de Tratado sobre el Derecho de los Diseños (DLT)

El Tratado tiene como objetivo agilizar el sistema internacional de protección de los diseños, haciéndolo más fácil, rápido y económico al acelerar los procedimientos y eliminar la burocracia.

En 2006, se iniciaron los trabajos de simplificación de los procedimientos para la protección de los diseños industriales en el Comité Permanente sobre el Derecho de Marcas, Diseños Industriales e Indicaciones Geográficas (SCT), evolucionado hasta convertirse en el borrador del DLT propuesto.

La OMPI destacó que existen tratados similares: el Tratado sobre el Derecho de Patentes de 2000, el Tratado sobre el Derecho de Marcas de 1994 y el Tratado de Singapur sobre el Derecho de Marcas de 2006.

Proyecto de instrumento jurídico internacional relativo a la propiedad intelectual, los recursos genéticos y los conocimientos tradicionales asociados a los recursos genéticos

Este instrumento jurídico abordará aspectos de la propiedad intelectual sobre el acceso, la utilización y distribución de los beneficios de los recursos genéticos (p. ej., plantas, animales y microorganismos) y los sistemas de conocimiento.

La OMPI brindó ejemplos de tales aspectos de la PI, como “una de las ideas que cuentan con el apoyo de numerosos países es que los solicitantes de patentes cuyas invenciones utilicen recursos genéticos y CC.TT. conexos deberían divulgar ese hecho y demás información conexa en las solicitudes. Este punto constituye una propuesta de ‘requisito de divulgación en las solicitudes de patente’. Otras ideas [... incluyen] un mayor uso de las bases de datos de información sobre recursos genéticos y CC.TT., lo que permitiría evitar que los examinadores de patentes concedan patentes erróneas.”

El instrumento jurídico tiene como objetivo, entre otros, armonizar los sistemas nacionales, fomentar el desarrollo de las comunidades indígenas y locales, y mejorar la calidad, eficacia y transparencia del sistema de patentes.

La OMPI enfatizó que desde 2010, “en el Comité Intergubernamental sobre Propiedad Intelectual y Recursos Genéticos, Conocimientos Tradicionales y Folclore (CIG) se están llevando a cabo negociaciones sobre un instrumento jurídico internacional relativo a la propiedad intelectual, los recursos genéticos y los conocimientos tradicionales (CC.TT.) conexos, así como sobre la protección de los CC.TT. como tales y las expresiones culturales tradicionales o el folclore.”

Revise aquí el comunicado de prensa publicado por la OMPI.

Crédito: “Delegates at the Opening of the WIPO Assemblies 2022” por Emmanuel Berrod está disponible a través de OMPI | OMPI en Flickr. Derechos de autor: OMPI. Foto: Emmanuel Berrod. Esta obra tiene una licencia Creative Commons Atribución-NoComercial-SinDerivadas 4.0 Internacional.

La versión en inglés de este artículo fue publicada primero en el blog The IPKat.

Peru: WIPO Geneva Act

Patricia Covarrubia July 18, 2022 No comments:

The Sixty-Third series of meeting of the Assemblies of the member states is taken place at WIPO headquarters (Geneva, 14^th-22^nd July). While the event is taken place in a hybrid format, the Peruvian delegates are present. Specifically, the executive president of the Peruvian Intellectual Property Office (Indecopi), noted face-to-face to the counterparts, ‘the initiatives and advances of Peru in the field of intellectual property’. [more info here]

The Geneva Walk - walking towards WIPO, June 2016

In particular, it was disclosed that Peru will deposit its instruments of accession to five treaties, including the Geneva Act of the Lisbon Agreement, which shows ‘commitment as a country’. There is not other indication of what other Treaties or Agreements those would be, but if we are to guess, one maybe the Madrid System, which now covers 128 countries. From Latin America:

Brazil (Madrid Protocol, October 2019;
Chile (Madrid Protocol, 2022);
Colombia (Madrid Protocol, August, 2012);
Cuba (Madrid Agreement, December, 1989; Madrid Protocol, December 1995);
Mexico (Madrid Protocol, (Madrid Protocol, February 2013).

This is long overdue, Colombia, the first Latin America country to become a party, did it back in 2012 as a compromise - noted in the FTA with the EU (published in this blog here), which was signed same time (June 2012) by both, Peru and Colombia (later on signed by Ecuador).

Regarding Geographical Indications (GI), the three countries, that is Colombia, Ecuador and Peru, amended and or adopted GI legislation in a manner similar to the EU. The EU deposited its instrument of accession to the Geneva Act of the Lisbon Agreement on 26 November 2019, and in force since February 2020.

Any other guess? Peru is not yet pat of the Hague Agreement, Nice agreement, Locarno Agreement, Strasbourg Agreement, Vienna Agreement, Nairobi Treaty, Patent Law Treaty and Washington Treaty – which of these, do you think they are going to go for?

Paraguay: news with no news

Patricia Covarrubia June 27, 2022 No comments:

From the Paraguayan IPO I read the news about the Mercosur – Singapore Free Trade Agreement (FTA).

Last week, the 6th round of negotiations seemed to end with some consensus on the matter of intellectual property, covering trade marks, patents, design, traditional knowledge and geographical indications. The meeting took place online and was led by the coordinator of the IP section Juan Esteban Aguirre, who is the Director of the International relations at DINAPI (Dirección Nacional de Propiedad Intelectual – that is, Paraguay national IP).

Previous round covered: access to the goods market, rules of origin, commercial defense, technical barriers to trade, investment, electronic commerce, services, telecommunications, government procurement and institutional aspects, trade in services, public purchases, and electronic commerce. The Foreign Trade Information System (SICE) publishes all documents relating to the negotiations, but it has not been updated (last doc is the 4th table of negotiation - April 2022).

MERCOSUR is a trade bloc in South America (Argentina, Brazil, Paraguay, and Uruguay – Venezuela was suspended in 2017) and represents the 5th world economy. The largest exports from MERCOSUR in 2022 is to China (USD$ 31,532 M); same with imports.

In 2019, MERCOSUR concluded FTA with the EU (more info here). An FTA cut hassle involved in exporting and importing goods and services, could it be by the reduction or removal of custom duties and or simplifying custom procedures.

Some FACTS on IP

All FIVE countries are members of the WTO and consequently have incorporated the TRIPS agreement into their national legislation – minimum standard of IP.

Madrid System (trade mark international register): Brazil and Singapore are members
Hague System (design international register): Singapore is a contracting party
Patent Cooperation Treaty (patent international register): Brazil and Singapore are members

Good to know – Brazil

The Brazilian IPO may challenge clauses establishing that improvements developed by the licensor may only be used by the Brazilian company upon the execution of a new agreement. Law No. 4,131/1962 regulates foreign capital in Brazil .

INPI assessment and approval of Technology Transfer and IP licensing agreement are mandatory for the purposes of:

authorizing remittance of royalties to foreign licensor, grantor of IPRs recognized in Brazil;
trigger tax deductibility by the Brazilian party of amounts paid in connection with IP license, acquisition; and
entitle the Brazilian party to enforce licensed, granted IP rights.

Other IP facts in Brazil:

INPI neither annotate agreements nor issue certificate of registration for the license of non-patented proprietary technological knowledge.
INPI does not accept ‘technology’ licenses and establishes that the technology is permanently transferred to the Brazilian recipient.
Software agreement registration is not required unless it involves the transfer of source code and know-how.

For more information in Latin America, have a look at the vast information hold at Latin America IP SMEs Helpdesk here.

Source DINAPI.

Brazil: fakes in the agricultural sector

Patricia Covarrubia June 24, 2022 No comments:

Pesticides and agricultural products suffer the same fate as any other products in the market, that is piracy. While IP plays a role as to protect patents, trade marks and other IP rights, the matter of piracy in this particular sector goes beyond protecting the economy and the private rights of the owners (incl. harming the country’s economy). Pirate products in this market endangers the lives of human beings and animals and may pollute the environment. Because of this, the Brazilian Association of Industries of Fine Chemistry, Biotechnology and its Specialties (ABIFINA), is positively acting to deter this crime by

Raising awareness for society to stop such practice which is a ‘crime’ and a matter of public health; back in September 2021, ABIFINA launched the “Brochure to Combat Piracy of Agricultural Inputs – Agricultural Defenses and Veterinary Products”.
Launching “Monitoramento de Ilegais AgroVet” [“Monitoring of Illegal AgroVet”] initiative. This brings together actions by police, customs, and agricultural inspection authorities in the fight against fakes. To this effect, news is collected and sent in a weekly report to interested parties.

Source ABIFINA.

Encounter 21: The Metaverse as a Challenge to Classical IP

IPTango June 22, 2022 No comments:

On 29 June 2022, FIDE (Legal and Business Research Foundation) and TIPSA (Transatlantic Intellectual Property Academy) will hold the Encounter 21: The Metaverse as a Challenge to Classical IP.

The panellists are Dr Andrés Guadamuz (University of Sussex) and Greg Pryor (Reed Smith). Dr Michaela MacDonald (Queen Mary University of London) will moderate the session.

The suggested readings and the report on the session will be available on the Global Digital Encounters (GDE) website as time goes by.

The Encounter is offered free of charge, but registration is required. Register here now!

If you missed previous Encounters or you want to watch them again, click here.

Credit: The image is courtesy of FIDE.

UPDATE: the recording of Encounter 21 is available here.

Ready, Steady…GO – the invention competition is on

Patricia Covarrubia June 21, 2022 No comments:

The Peruvian IPO (Indecopi) launched this week the XXI National Invention Competition 2022 . The call is for all inventors and innovators who have until September 27, 2022 to submit their application. This initiative, which is in its 22nd edition, aims to encourage and recognize the inventiveness and ‘creative spirit of Peruvian inventors, researchers and entrepreneurs’. The contest offers three categories and offers a cash prize to the winners for a total of USD 5,000.

The categories:

First Place Award, distinguishing the national ‘invention that is considered the most outstanding’, assessed as exceptionally due to the ‘potential economic, social and commercial/productive impact that it can generate’.
Green Patent Award, recognizing the invention with a great applicability in the area of environment and or climate change.
Peruvian Inventor Award which recognizes women in the field – this could be an individual or a group of only women, which invention is ‘considered the most inventive and with the greatest potential impact for the country’.

To participate in this exciting event, you shall have a patent application pending at Indecopi - between January 1, 2021 and September 27, 2022, and not have participated in previous editions of this competition.

Good luck my Peruvian friends! May the odds be in your favour.

More information here

oriGIn on Geographical Indications compilations

Patricia Covarrubia June 16, 2022 No comments:

Yesterday afternoon I attended the event on oriGIn worldwide GI compilations. It comprises several speakers from around the world but relatable to Latin America, Sergio Chuez from INAPI was present.

The welcoming was led by Erik Thevenod-Mottet from the Swiss IPO, followed up by Massimo Vittori representing oriGIn. The idea was to share the wonderful tool, that much needed, GI compilation. The talk started by ‘some figures’

1. recognising that there are over 13,000 GIs around the world [oriGIn has compiled 9,047 – that are ‘recognized’], and here I made a pause. It was an important remark made by Massimo that ‘recognised’ may not label it as ‘registered’ as some countries may not legally registered a particular GI but still there is recognition. This is important to know because a GI is appreciated by us, society/consumers and while perhaps a GI has not obtained the legal status of registered GI, it still, in our minds, has goodwill.
2. There are different legal systems, mainly sui generis around the world that protect GI e.g. China, the EU, Africa (OAPI), the Andean countries (South America), Canada, Mexico, Chile, etc
3. GI is applicable to several sectors not only agro-products but also includes non-agricultural products such as craft [Brazil protects services too]
4. International legal frameworks are in place: TRIPS, Lisbon Agreement and more recently the Geneva Act
5. There are over 200 bilateral agreements covering GIs [mainly they follow the bilateral agreement between France and Germany signed back in the 60s - adding an annex with a list of GIs].

Massivo moved to explain how the search works (database can be accessed here). I must say that I have tried and it is not complicated at all [I do not consider myself tech-savvy] and it is, I may say ‘ straightforward’. You may search by regions (e.g., South America (you can see all 444); Central America (with 74), etc), or by country. There is also interesting data such as ‘legal protection’ under which the said GI is protected, for instance, sui generis, trade marks, legislative act, etc; as well as per ‘type of product’. Under this, I have been intrigued by ‘services’, knowing the case of ‘Porto Digital’ in Brazil reported in this blog here. The data shows THREE GIs for services; aside from the Brazilian case, there is one in Chile ‘Calidad Aysen Paragonia-Chile (protected as a trade mark); and another, that of ‘Duzdag’ from Azerbaijan as a sui generics GI. Under types of products there is a very meticulous selection e.g., food products/dairy; food products fruits; food products/vegetable oils and fats; non-food product/ wood; non-food product leather; etc. There are 7846 GIs protected under sui generic rights which Massivo asserted is a legal system which is more robustic and solid.

While I (virtuality) attended all speakers, I engaged with a couple of question when Chuez spoke about the work they do at the INDECOPI. Relating to this report today was the fact that by mere coincidence, yesterday morning I had published in this blog, about collective marks, and the QR code as well as the application been done for free. I therefore asked if there were any incentives for nationals to apply for GIs, here is the answer: ‘…[while GI applications are not free], we offer free and complete technical assistance for the filing, including the organization of the regularity council’ . This is indeed a pretty good offer, and I am sure many micros and SMEs do and will benefit from this. Peru, as many other countries in Latin America, is rich on natural resources and traditional knowledge. Yet, as of today, there are only 10 national GIs: ONE for a spirit, ONE for handcraft and EIGHT for food related products.

If you attended the event, what are your thoughts? The next GI event would be in Montpellier (5th July), I will be in (physical) attendance, would you? More info on the Worldwide Perspectives on GI here.

Peru: QR codes for Collective Marks and enhancing Micro Enterprises

Patricia Covarrubia June 15, 2022 No comments:

As part of the project run by the Peruvian IPO (INDECOPI), that is ‘Collective Marks Brand Promotion’, the office continues to advertise that by registering a collective mark, INDECOPI designs and produce their QR code for free.

Such QR code will allow customers to learn about the association or cooperative that owns the collective mark and of course to learn about the product offered e.g., the product’s characteristics, its history, membership (who they are), business contact details, in what market the products are traded, etc.

Micro enterprises

In general, as any other IPO office, the INDECOPI provides a good platform aiming to favour ‘economic reactivation of entrepreneurs, businessmen and micro enterprises in the country’. That said, this month, it prepared an event where 222 registrations of collective marks were handed in. It is therefore noticeable that INDECOPI continues to provide a helping hand to micro enterprises which are abundant in the country, especially in the artisanal sector and other rural productions. [micro enterprises have at mots 10 employees. As a curious note, small and medium enterprises represent 99% of all business in the European Union , yet in 2021 micro-enterprises have a turnover of Euro2 million – see the European Commission report here). In Peru, there is an exemption from the payment of the fee for processing the collective mark applications which was in force until September 2019 -- such payment was definitively eliminated in December 2020.

INDECOPI reports that up to April 2022, there are 5761 collective marks registered noting that many of these association and cooperatives are formed by women.

More info click here [in
Spanish]

Brazil: Patents and Transgenic Plants

Patricia Covarrubia June 14, 2022 No comments:

The Brazilian IPO (INPI) has initiated a public consultation on the Nota Técnica CPAPD nº 01/2022. The Nota ‘aims to define the guidelines to be followed by its examiners in the examination of patentability of inventions associated with transgenic plants’, specifically ‘elite event’.

Art 2 of the consultation welcomes suggestions and critiques related to the note and invite these to be submitted to cpapd.patentes@inpi.gov.br (deadline 30 days from 31 May 2022). After the deadline, and in accordance with Art 3 of the note, INPI will present the contributions provided by the consultation together with the final text. Click on the note to read the consultation publication [Portuguese]

The Nota Técnica CPAPD nº 01/2022 can be found here. [Portuguese]

The application of genetic transformation technology and the role of patents have been discussed for decades, in particular the matter of patentability of ‘living organism’ (biotechnology) and the ‘public-good breeding’. A technical understanding is needed as the requirements of novelty (new) and inventive step (non-obvious) are crucial. Moreover, whether the subject matter can be patentable. In any case, Brazil is a member of the international union for the protection of new varieties of plants (UPOV Convention) since 1999 and thus, have laws on plant variety protection in line with such international Convention.

Cisgenic tress by Oregon State University

In principle, biological matter is not patentable (in Brazil this is so by Art 18(III) of the Industrial Property Law – Law No 9.279/96). However, it does not mean that an invention is not patentable just because the product and or process contain biological material. Here is then when it gets complicated and thus, the guidelines are welcome.

Article One of the CPAPD nº 01/2022 starts by providing a definition of what ‘elite event’ means. This is done by FIVE criteria, as follow:

1)the event transforms a plant

2) through the insertion of a transgene

3) by using a genetic construct

4) been stable, in which the insertion took place at a specific location in the plant genome, and

5) gives the plant a superior technical effect when compared to other transformation.

Because transgenic plants are the ‘inventive concept’ that links to the ‘accessory ones’, there is the need to discuss the potential patentability of the additional inventions that derive from the main invention.

Source INPI.