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Tuesday, 6 December 2022

Some news and views from me to you

Patricia Covarrubia December 06, 2022 No comments:

I cannot deny that keeping up with the blog has been arduous to say the least. The matter is that joggling between a full-time academic job comes with presenting and attending conferences, writing papers and plenty of responsibilities not only academic but also administrative, and then a house, family, and a bit of Legal consultancy. Aside, the University of Buckingham, where I work, drives, and leads on personal mentorship – and I am proud of it, but it is time and energy consuming. On this fact, I got some news to share, well ...maybe there are not brand new, but indeed good news to share. However, I have to say, that at first, I did not make a fuzz of it, because I do not like to ‘show off’ but on reflection, the idea of obtaining any recognition is to acknowledge, and if someone feels that this is their right path and want to connect with me for further guidance then, I am more than happy to give a hand.

The Kindness & Leadership, 50 Leading Lights UK announced the listees in November, and I am one of them 😉. The campaign “seeks to shine a great big spotlight on leaders who are impacting others through kindness. We see this campaign as a unique chance to build a new status quo, sharing advice and expertise from leaders and recognising the contribution of kind leaders to business, the economy and society.” The 50 listees come from different industries (me as academic) [View the 2022 listees at https:// www.kindnessrules.co.uk/uk/] You can check my statement if you click on my name, and you can also watch a video (1 minute) here.

My second big news is more IP related. The 30^th of November came out the e-copy of the edited collection Transboundary Heritage and Intellectual Property Law: Safeguarding Intangible Cultural Heritage. The book took a few years to materialise, but one cannot expect less as the calibre of the authors were of high standard and engaged in their own projects. I was indeed honoured for them to embark with me in this task. For more info on this, check this page

The Book Description reads

Since the Intangible Heritage Convention was adopted by UNESCO in 2003, intangible cultural heritage has increasingly been an important subject of debate in international forums. As more countries implement the Intangible Heritage Convention, national policymakers and communities of practice have been exploring the use of intellectual property protection to achieve intangible cultural heritage safeguarding outcomes.

This book examines diverse cultural heritage case studies from Indigenous communities and local communities in developing and industrialised countries to offer an interdisciplinary examination of topics at the intersection between heritage and property which present cross-border challenges. Analysing a range of case studies which provide examples of traditional knowledge, traditional cultural expressions, and genetic resources by a mixture of practitioners and scholars from different fields, the book addresses guidelines and legislation as well as recent developments about shared heritage to identify a progressive trend that improves the understanding of intangible cultural heritage.

Considering all forms of intellectual property, including patents, copyright, design rights, trade marks, geographical indications, and sui generis rights, the book explores problems and challenges for intangible cultural heritage in crossborder situations, as well as highlighting positive relationships and collaborations among communities across geographical boundaries. Transboundary Heritage and Intellectual Property Law: Safeguarding Intangible Cultural Heritage will be an important resource for practitioners, scholars, and students engaged in studying intangible cultural heritage, intellectual property law, heritage studies, and anthropology.

Some of the chapters cover specifically Latin America

Chapter 3 ‘Scaling up and down the edible heritage: Food and foodways as terrains of cultural friction ‘by Raúl Matta, focusing on Mexico cuisine

Chapter 7 ‘Colombian/Panamanian molas: Coping with the challenges posed in protecting and commercialising transboundary intangible cultural heritage’ by Florelia Vallejo-Trujillo

Chapter 8 ‘The ‘Pisco War’: A Chilean-Peruvian conflict at the crossroads of an intellectual property regime and intangible cultural heritage’ by Bernardo Alarcón Porflidtt

Chapter 11 ‘Knitting a future for the Aymara’s weavers: The Andean project’ by Patricia Covarrubia

Hope you forgive me for not being as prompt with news and views in the blog as it should be, this has been a crazy year! And as always, please do contact me if you think you have what we need to make this blog shine with news once again.

Mexico: Plagiarism and traditional cultural expression

Patricia Covarrubia October 27, 2022 No comments:

I received an email yesterday morning with a link to the BBC Latin America News. I am always skeptical to open links due to virus (are you not?). On second thoughts, I read the link and it was clear that was a verified page and when I clicked there were some juice news for our blog 😊 The heading reads: “Ralph Lauren apologises after Mexico indigenous 'plagiarism' claim”. My reaction was, not again! It has become usual to see big business appropriating cultural designs. But I wonder whether this is due to social media and we, as a society, are more aware of it. The era of globalization surely has made us more aware of what is going on in every corner, but also may have brought in us an appetite for merchandise that is only available in certain regions, or cultures [would you agree?].

Back to the news.

The wife of the Mexican President wrote on Instagram below the photo of the claimed item

“Hey Ralph: we already realized that you really like Mexican designs, especially those that are elaborated by ancestral cultures that preserve textile tradition. However, by copying these designs you incur in plagiarism, and as you know, plagiarism is illegal and immoral. At least acknowledge it. And hopefully you will compensate the damage to the original communities that do this work with love and not for millionaire profit. @ralphlauren (These designs are by Contla and Saltillo.)”

[translation, my own]

Let’s put our IP hat on: is this plagiarism? Is there an infringement? Traditional cultural expression as such is not protected under the umbrella of IP. Yet, WIPO’s Intergovernmental Committee (IGC) on IP and Genetic Resources, Traditional Knowledge and Folklore is working on an international instrument for their protection. [for the drafts go to this page here). The matter is that IP has a period of protection (full stop). That is the terrible reality that traditional knowledge in general suffers. Added to this, is the fact that even if it were protected by let’s say copyright, there is the argument of ‘inspiration’ that designers rely heavily on. However, there is a fine line between ‘inspiration’ and ‘copy’, and this has been reflected more in recent years (or at least we have become aware of it).

For instance, three months ago, we brought to you the news of Mexico vs Shein, for a garment deemed to be copied by the latter which contained Mayan’s traditional culture. Two years ago, we also posted about the Guna people in Panama vs Nike which contained a ‘mola’ design. I am sure there is not enough space to tell you all about this situation that seems to happen all over again, and again.

Back to the news

Ralph Lauren has apologised and noted that months ago they remove it and were surprised to see the final products on display. This may be the end of the story, but not for the communities around the world. While waiting for the WIPO international instruments, there is nothing stopping governments to pass their own national laws protecting their traditional knowledge. Yet, this would be protection on their national territory, I am afraid, but at least, it is something.

The suspicious link sent here.

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

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?

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.

[Guest Post] Mercado Libre’s second Transparency Report

Verónica Rodríguez Arguijo January 10, 2022 No comments:

IPTango is pleased to publish a guest post by Francisco Burguete, discussing the second Transparency Report published by Mercado Libre.

Mercado Libre (MELI) published its second Transparency Report, which covers data from January to June 2021 and includes a new section on user information requests (see here IPTango post on MELI’s first Transparency Report).

MELI emphasized that in the second report, “the scope of information available to users, authorities and civil society organizations has been expanded[, and for] the first time, information requests from authorities that are processed in compliance with the law are shared”.

Now, the Transparency Report comprises four main sections: user information requests (section one), product security and quality (section two), protection of IP rights (section three), and privacy matters (section four).

Product security and quality (Section 02)

This section contains information about removed content because of violations of MELI’s Terms and Conditions (T&C), such as offering prohibited items on the platform (e.g., items violating IP rights):

267,461,670 listings were placed on MELI’s websites as of 30 June 2021 (compared to 331,607,978 listings in the first report).
8,815,828 listings were detected and moderated by MELI due to violation of its Listing and Prohibited Items Policies (compared to 18,570,436 in the previous reporting period).
53,173 listings were reported by users (compared to 112,424 in the previous report).
Top jurisdictions concerning detected listings regarding the violation of MELI’s Listing and Prohibited Items Policies:

Jurisdictions	Detected Listings (1^st report, as of 31 December 2020)	Detected Listings (2^nd report, as of 30 June 2021)
Brazil	13,283,854	4,013,453
Mexico	2,282,461	2,311,539
Colombia	1,371,060	1,240,494
Argentina	792,168	253,219
Chile	609,413	581,119
Uruguay	98,915	150,475
Peru	96,569	174,077
Rest of Latin America	35,996	91,452

Only 4.5% of detected listings were reactivated (compared to 3.12% of reactivated ads).

It should be noted that the second report contains the top main content infringing categories broken down per country. Meanwhile, the categories were classified only per product in the first report.

Protection of IP rights (Section 03)

In this section, MELI presents its Brand Protection Program (BPP), which “enable IPR holders to report infringing listings [via a Notice & Take Down -N&TD- procedure]”. MELI emphasized that they have developed “self-mapping tools, based on artificial intelligence, to “learn” from the notices received and proactively remove listings” that infringe IPRs.

969,413 N&TDs were submitted (compared to 2,107,264 in the previous reporting period).
56,432 counter-notices were submitted (compared to 104,661 in the first report).
The number of Proactive Detections and Confirmed Complaints:

Date	Proactive Detections	Confirmed Complaints
2021-1	1,322,070	159,409
2021-2	907,771	170,128
2021-3	1,558,342	206,285
2021-4	733,493	132,261
2021-5	760,860	117,082
2021-6	668,668	125,850

The English version of the second Transparency Report can be reviewed here. The Spanish version is available here.

In the past, IPTango interviewed Juan Cichero (Head of Brand Protection at MELI), who conversed about BPP, the N&TD procedure, and more. Read here the interview.

Credit: Image by athree23 from Pixabay.

The Latin American Network of IP and Gender has been created

IPTango July 05, 2021 No comments:

On 28 June 2021, it was announced the creation of the Latin American Network of Intellectual Property and Gender. For such purpose, a Memorandum of Understanding (MoU) was signed between INAPI (Chile), INDECOPI (Peru), RN (Costa Rica), SIC (Colombia) and the World Intellectual Property Organization (WIPO, as an honorary member).

The Network was conceived as a forum “to develop activities and promote the intellectual property at the regional level, with a gender perspective”.

The Latin American Network of Intellectual Property and Gender will facilitate the exchange of good practices, stats, and experiences between the Offices to close the gender gap and empower women in the region concerning innovation and entrepreneurship.

During the virtual signing ceremony of the MoU, the founding members expressed the desire that the entire region joins the Network to make a more significant impact.

The Network’s creation was discussed during the “III Sub-regional Meeting on Intellectual Property, Innovation and Gender Equality” in 2019. Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Mexico, Peru, and Uruguay participated in such a meeting.

Throughout 2020, the IP Offices of Chile, Colombia, Costa Rica, and Peru held meetings with WIPO to follow up on the creation of the Network.

Sources: INAPI (Chile), INDECOPI (Peru) and RN (Costa Rica) websites.

Image by Gerd Altmann from Pixabay.

Mercado Libre published its first Transparency Report

Verónica Rodríguez Arguijo June 24, 2021 No comments:

On 19 May 2021, Mercado Libre (MELI) published its first Transparency Report. MELI stated that the report’s purpose is “to make our policies and actions transparent to safeguard the security and privacy of over 74 million users in our entire regional ecosystem”.

The Transparency Report consists of three main sections: product security and quality, protection of IP rights, and privacy matters. Read below some highlights of the report!

Section: Product security and quality

This section contains stats about removed content due to violations of MELI’s Terms and Conditions (T&C), which inter alia, prohibit certain items are sold on the platform (e.g., medicines, counterfeit items and other goods violating IP rights):

331,607,978 listings were placed on the 18 MELI's websites as of 31 December 2020.
18,570,436 listings were detected and moderated by MELI due to violation of its Listing and Prohibited Items Policies.
112,424 listings were reported by users.
65,180 listings were removed due to COVID-19 related matters.
Top 10 product categories regarding removed listings due to violation of MELI’s Listing and Prohibited Items Policies:

Product Category	Removed Listings
Courses	7,036,318
Medicine, health and/or beauty substances and products	1,386,243
E-books	1,337,862
Digital accounts & contents	1,278,420
Adult products	844,061
Personal databases	611,122
Decoders, antennas & signals	433,865
Personal documents	230,757
Tobacco & alike	215,817
Products & financial services	126,428

Top jurisdictions concerning detected listings due to violation of MELI’s Listing and Prohibited Items Policies:

Jurisdictions	Detected Listings
Brazil	13,283,854
Mexico	2,282,461
Colombia	1,371,060
Argentina	792,168
Chile	609,413
Uruguay	98,915
Peru	96,569
Rest of Latin America	35,996

In the report is highlighted that MELI uses machine learning technologies to detect infringing listings. In this sense, only 3.12% of the detected listings went back to the platform (reactivated ads).

Section: Protection of IP rights

This section contains stats regarding MELI’s Brand Protection Program (BPP), which “enable IPR holders to report infringing listings [via a Notice & Take Down -N&TD- procedure] in any of the 18 countries where Mercado Libre operates”.

2,107,264 N&TDs were submitted.
104,661 counter-notices were submitted.
The number of confirmed and not confirmed N&TDs:

Date	Confirmed N&TD	Not confirmed N&TD
2020-7	580,164	57,589
2020-8	396,225	46,558
2020-9	285,462	48,326
2020-10	333,046	26,757
2020-11	198,232	24,184
2020-12	92,568	23,035

Review the full Transparency Report here in English and here in Spanish.

Read here the interview IPTango held with Juan Cichero (Head of Brand Protection at MELI). Juan conversed about BPP, including the machine learning technologies used to detect infringing listings and the N&TD procedure.

Credit: Image is courtesy of Mercado Libre.