IPTango

Friday, 12 February 2010

.co registry heads for IRT rights protection mechanisms

Jeremy February 12, 2010 No comments:

The Colombian domain name registry is planning to introduce a change to its domain name registration rules, offering domain name registration under the top level domain of .co (at present it is only possible to apply for domain names under extensions such as .com.co, .net.co and .org.co). In line with other recent TLD launches, the registry will be running a phased launch process, starting on 1 March 2010.

What is really interesting about it this development is that the Columbian registry is looking to implement most, if not all, of the rights protection mechanisms as recommended by the Implementation Recommendation Team "IRT": IP Clearinghouse, GPML, Rapid Takedown (aka URS). This certainly sets the pace in advance of the launch of new gTLDs in 2011, given that .co is a country-code top-level domain as such will not be bound by whatever ICANN finally adopts for RPMs (revenues per thousand visits) in the new gTLDs. This is a bold and welcome step by the Columbian registry.

Source: David Taylor (Partner, Intellectual Property, Media and Technology, Lovells)

Lights-off! at Billboards and Advertising signs

Patricia Covarrubia February 11, 2010 2 comments:

On Wednesday, the Venezuelan government banned the use of electricity on billboards and advertisements as part of a contingency plan. The resolution also prohibits the lighting of the ads and billboards located in public roads, with the exception of pharmacies, health centres and secure facilities if they use energy saving bulbs.

The government said the new prohibitions will remain in place "until it exceeds the emergency". The breach of the regulation will be punished with the suspension of electric service for 24 hours and that if they do it again, it will be for 48 hours or cessation of the service indefinitely.

President Hugo Chávez earlier this week declared a state of emergency power due to a drought crisis generated by the Guri, which is the largest generator of electricity in the country.

Victor Maldonado, executive director of the leading business chamber of the capital, considered as "cosmetic'' the government's decision and said the measure will generate harm to advertisers. He added that the measure will not have a major impact on energy savings.

More news here and here.

Resolution No 008, Official Gazette here.

Chile Industrial Association of Pharmaceutical Laboratories (Asilfa) responds to the American Chamber of Commerce (AmCham)

Patricia Covarrubia February 09, 2010 No comments:

Ricardo Garcia, president of the Chilean Amcham, has noted that one of the reasons Chile stayed in the "red list" of intellectual property was for allegedly copying certain American laboratories medicines.

The debate has just started. Yesterday, Asilfa’s Vice President, María Angélica Sánchez, rejected the accusations, saying that no patents have been infringed because, in cases where they have been challenged, they are not subject to patenting. She added, “our laboratories comply faithfully with the issue of industrial property and pharmaceutical patents”. Miss Sanchez also explained that those trials and questioning refer to cases of medicines produced or created before 1991. It is good to bear in mind that medicines were only incorporated in the Chilean Industrial Property Law in 1991.

Trying to make her point, Miss Sanchez clarifies: "These are drugs that, although they were created before 1991, the laboratory of origin makes them a little modification and applies for a patent, which usually never sees the light. They use that application to say the product is patented.” She adds “while the application is made, which may take three to five years, the [applicant] laboratory sent a letter to the [infringer] lab explaining that they can not manufacture the product because it is under patent application, but that means nothing because it is not patented”.

Note:
Clearly, the protection afforded by a patent does not start until the actual grant of the patent BUT it is possible to claim damages for infringing actions which happen between publication and the grant. That said, it may be that the labs that are making the generics will not only become liable from the date of the patent being granted but even before.

To say that the ‘letter’ (to put the potential infringer on notice) does not mean anything because the patent has not being granted is reckless. Otherwise, according to her declarations, once an invention has been published (so anyone can acquire the knowledge because it is made public) everyone can use the invention until it is granted!

Another point that is made is the fact that the medicines were not new because they existed before 1991 (but they could not be registered because of the law). However, once Chile accepted medicines to be patented, the said labs filled in the applications with some modifications (as to appear as new inventions). Clearly, if Asilfa believes so, they can challenge the validity.

Argentina: comentario al nuevo Art. 5 bis Ley 11723

Aurelio Lopez-Tarruella Martinez February 09, 2010 No comments:

Maximiliano Marzetti (Abogado, proesor e investigador de Derecho y economía ubicado en Bolonia) acaba de publicar un interesante artículo titulado "Costo sin beneficioso - Análisis económico del Art. 5 bis recientemente incorporado al Regimen de la propiedad intelectual" y ha tenido la amabilidad de proporcionárnoslo a los usuarios de IP Tango. El artículo está disponible aquí. A continuación un pequeño resumen enviado por el propio autor:

La reciente ley Nº 26.570 (que ha pasado casi desapercibida para la mayoría de los argentinos) incorpora el artículo 5 bis al Régimen de la Propiedad Intelectual (Ley Nº 11.723).

Un sólo artículo ha sido suficiente para extender el monopolio económico de artístas-intérpretes y productores de fonogramas por otros 20 años, sin ninguna justificación valedera.

Una extensión de tal naturaleza de poco sirve para generar incentivos para la creación de nuevas interpretaciones o fonogramas ni mucho menos para incentivar la creación de interpretaciones y fonogramas que ya han sido creados. Para peor, su aplicación es retroactiva, lo que ayer estaba en el dominio público hoy ya no lo está.

Desde la perspectiva de éste autor los Derechos de Propiedad Intelectual sólo debieran concederse cuando los beneficios (sociales y privados) superan los costos (sociales y privados). Toda otra argumentación es fácilmente manipulable, particularmente la que se solapa con una retórica que abusa de términos subjetivos como “justicia”, “equidad”, “interés nacional”, etc. y privilegia intereses sectoriales para el beneficio de unos pocos.

El análisis ecónomico del Derecho sirve ayuda a comprender los reales efectos económicos de las reformas legislativas así como para determinar de antemano quien gana y quien pierde con ellas.

En este caso han ganado los productores de fonogramas y las agencias de gestión colectiva, han perdido los consumidores argentinos. Privilegios sin justificación económica, obra maestra del lobby y del rent-seeking criollo. Sirva este breve artículo no para llorar sobre leche derramada, sino para conscientizar a los ciudadanos y responsabilizar a los representantes que no representan al pueblo.

Can traditional cuisine be protected?

Patricia Covarrubia February 08, 2010 No comments:

The question of today’s blog comes after the president of Mexican Gastronomic Culture, Gloria Lopez Morales, said that Mexican cuisine should be declared as Intangible Cultural Heritage by UNESCO.

To this effect, last September a dossier was sent to UNESCO, in order to belong in the Representative List of Cultural Heritage. The result will be announced next April. According to Lopez Morales, the requirements to comply with are: to be a very old cuisine, to be faithful to the products, techniques and procedures used; to have the ability to serve it as an element of cultural identity; upon others.

Among the list of intangibles that have been recognised are: the Chinese Dragon Boat festival, Spain whistled language, French timber framing, the procession of the Holy Cross in Bruges, the Mexican Ritual Ceremony of the Voladores and...The Argentinean and Uruguayan tango!

There is clearly a push to protect endanger things due to effects of globalisation. For this reason, I was wondering the influence of this outcome towards IPRs and/or viceversa. Certainly, IP is the protection of an intangible right (that of intellect). Many of the Representative list if not all can (in one way or another) be protected under one or two IP, e.g. dance, singing, choreography, craftsmanship. However, in the area of food I could think of just one area: denominations of origin and geographical indication. Therefore, the question of this week is: can a traditional dish be protected under IP? And if so, under which regime?

Personal note: I presume that the French could claim that a dish is an artistic work, but while there is no requirement of fixation, can a temporal art be protected under let’s say, copyright? I am aware of cases here in the UK, and thus I would like to hear different legislations.

Other countries applying for traditional cuisine is France and Croatia.

Are Genetically Modified Organisms(GMOs) a matter of Human Rights?

Patricia Covarrubia February 04, 2010 No comments:

In answering the question, it appears so. Mexican Rural communities together with Greenpeace accused the Mexican Government (specifically the SAGARPA, PROFEPA and the Attorney General’s office) before the Inter-American Commission on Human Rights (IACHR).

The action is brought against the government because according to Greenpeace, it has refused to investigate the contamination of local crops with transgenic maize in the Chihuahua State. In the same vein, it is believed that by the Government turning a blind eye into the situation, “it violates the rights of consumers and producers as well as their cultural rights”. It is also added that “it violates...the right to property and right to information”.

Back in 2007, GM maize was planted in the state of Chihuahua. The plaintiffs brought this issue to the attention of the General Attorney and up to today they have received no response.

Lack of legislation or lack of government?
According to the Law on Biosafety for GMOs, Article 70 and 72, provide protection for local maize(oops!, I think I just answered the question).

More info here, here and here.

Chile y la pirateria

Aurelio Lopez-Tarruella Martinez February 03, 2010 No comments:

En continuación al post publicado en IP Tango recientemente sobre Chile y la piratería, Rodrigo Ramirez (Abogado de Ramos Pazos, Montecinos & Díez) nos trae más información:

Chile actualmente es miembro de la OCDE y su ranking de piratería casi duplica la de los países miembros. Este dato ha sido entregado por la asociación que agrupa a las empresas de software de Chile y el mundo (Business Software Alliance). Según cálculos de la BSA, la tasa promedio de piratería de los países integrantes de la OCDE es de un 35%, siendo la tasa de Chile un 67%.

Con estas cifras Chile encabeza la lista de los países con más piratería dentro de la OCDE, seguido por Turquía (64%), Polonia (56%) y México (59%). El país con bajo nivel de piratería es EE.UU. de Norteamérica con un 20%.

En la última medición, la piratería de software en Chile aumentó un punto, llegando al 67% actual, y perdió US$ 202 millones por este concepto en el año 2008. La noticia aquí.

Legal Deposit of Musical Works Becomes Mandatory in Brazil

José Carlos Vaz e Dias February 03, 2010 No comments:

Legal deposit of musical works at the National Library has become mandatory in Brazil since law week through the publication of the Federal Law number 12,192 of 14 January 2010.

From now on, Editors, Phonogram Producers and video producers are obliged to deposit at the Brazilian National Library, in the city of Rio de Janeiro, 2 (two) copies of each piece of music edited or published by them within 30 (thirty) days from publication of the work. Also, they should officially inform the aforementioned institution all performances of the musical work published and released in the market.

Law 12,192/2010 and the obligation to deposit musical works in a government institution caught the surprise of many Brazilians not used to copyright law and still shocked by the recent press and communication control wave that hits some Latin American countries, such as in Venezuela.

In fact, the mandatory deposit of musical works has nothing to do with the control of the press, as it intends to secure registration, storage and dissemination of Brazilian music production so as to preserve national memory recording and folklore. The legal deposit of intellectual works (literary but not musical) is a statutory requirement of diverse laws, such as Australia, Canada, New Zealand, Portugal and Brazil too (Law 10,994 of December 14, 2004).

According to Law 12,192/2010, the failure to comply with the requirements of the legal deposit will result in the imposition of a fine, which may correspond to 100 (one hundred) times the value of the work in the market, without prejudice to the confiscation of copies sufficient to comply with the law.

Further to that, the Law implies that solely musical works in Portuguese language and divulged in the Brazilian market should be affected by the legal deposit requirement.

According to Daniel Pitanga, a partner and copyright specialist of the law firm Di Blasi, Parente, Vaz e Dias Advogados & Associados, “mandatory deposit is not new in Brazil. Like in Australia, Canada, New Zealand and Portugal, a Federal Law back in 2004 (Law 10,994/2004) provided the legal deposit of publications (literary works) in the Brazilian National Library to ensure the registration and custody of the Brazilian intellectual production thereby preserving culture and national language. However, the novelty rests on the National Library’s competence to manage the deposit and storage of phonograms and video media.”

That’s a good question, as the National Library is an institution focused on registering paper works, not phonograms and videos. The government agency to register musical works for copyright purposes is the National School of Music. In the case of artistic works, one may register them at the National Schools of Arts.

In view of that, the Brazilian National Library will have to adapt its internal structure for this new function in order to receive and conserve the new media.

Finally, it is important to advice that the mandatory deposit cannot get mixed up with the registration provided in the Copyright Law for the purpose to identify prior creation and record copyright assignments.

INPI's Bulletins available online

Patricia Covarrubia February 02, 2010 No comments:

For those of you who are not aware, the Institute of Intellectual Property in Argentina (INPI) publishes official statements regarding their administrative cases.

Doing a little bit of research in trade mark, I read the bulletin issued on 27/01/10 regarding the admission and granting of certain marks but also the opposition and bar from registration of others.

I came across the forbidden ones - quite obvious, for example:
• Buenos Aires es Gay and Argentina es Gay for services in classes 35 and 38; the bar was Art 3(e) “words, drawings and other signs contrary to morality and decency”.
• Bob Marley; Jennifer Mariel; Sara Campbell; prohibited by Art 3(h) “the name, pseudonym or portrait of a person without his consent or that of the heirs to the fourth degree”.
• 2465 for several goods and services; prohibited by Art 1, which allows registration of combinations of numbers and letters and also in their own if they have a special design. In this case, the numbers did not have any design in particular and were not a ‘mark’ as such.
• Dulces de Lujan (Lujan’s sweets; Lujan is a town in Argentina known for its traditional sweets) in classes 29 and 30 (foodstuff); banned by Art 2(a) - descriptive of the product.

Everything appears to be straightforward, however I also revised the trade marks that were granted registration; of course I encountered the controversial ones, for example:

• Ultra Biodisel; Biodisel Ultra, for goods in classes 1 and 4 (chemicals and industrial oils) and services in classes 35,37,42,44. Not quite sure about the distinctiveness of this mark due to descriptiveness. Reading the case, the Institute granted the registration of the mark but established that the word Biodisel cannot be used exclusively by the company. Then I guess that we are talking about a compose mark in which I believe neither of the words alone are distinctive. I may ask? Does the combination make the mark distinctive enough? While I agree that there are circumstances in which a combination of descriptive words can make a particular mark distinctive, I am afraid that in this case I disagree. This case reminds me of famous EU cases such as Baby-Dry and Doublemint.

• Cobro revertivo (collect) granted to a telecommunication company for services in class 38 (communication). This one is definitively tricky for those other companies wishing to or do have already the service of ‘collect calls’.

To have access to the bulletins, click here for the marks which were granted and here for those which were banned

Argentinian trade mark law here.

Genetically modified organism, green light to consume but not to plant?

Patricia Covarrubia February 01, 2010 No comments:

Genetically modified organism (GMO) is indeed a topic which has brought hot debates at international level. Mexico is one of the Latin American countries that seem to have a settled regulation regarding Biosafety of GMOs. However, reading recent news, it appears that the population in general are not quite certain about the product. To this effect, Greenpeace Mexico as well as other Mexican agroindustriales, scientists, Universities, artists, intellectuals among others, joined opposition to the delivery of 28 permits for experimental cultivation in national territory.

This reports comes after last week resolution in which the Federal Commission for Protection Against Health Risks (COFEPRIS) issued eight permits for import and marketing of GMOs. The permits authorise the human and animal consumption and industrial processing on these products. The GMOs authorised includes four varieties of maize and one of soybeans. Bio Agro said that the adoption of these products adds to a grant total of 77 GMOs which are allowed to be consumed in the country.

Nonetheless, observe that while these GMOs are accepted for marketing and consuming, it does not mean that they are acceptable for planting. How come? The Cofepris only authorises the marketing and consumption of GMOs but it does not grant authorisation for planting. The country’s agriculture, livestock, rural development, fisheries and food (SAGARPA) and the environment and natural resources (SEMARNAT) Ministries are the ones that issue the aforementioned permits.

The SAGARPA and SEMARNAT grant permits in compliance with the law on Biosafety of GMO. However, the Ministers clarify that plantings are kept in experimental phase and are land controlled and completely isolated from another crops. I therefore believed that it appears to be sensible enough...until I read the Law and its further amendments.

Art 67 for example, establishes that it is not allowed experimentation on genetically modified maize that contains features that prevent or restrict its use or human and/or animal consumption. It is indeed confusing. COFEPRIS already granted authorisation for the GMOs to be consumed, so what is the point of this Article? Shouldn’t it be the other way around? First do the experimentation and then grant the permit for marketing and consumption. Or, am I missing something? What do you think should be looked at first: the impact on the environment or the human and animal health?

Added to this, Greenpeace Mexico denied that GM crops will bring better conditions for farmers, because the patent of seeds is in the hands of corporations, like Monsanto, which holds 90 percent of the seeds of this kind in the world. It is also added that the experiments do not favour public research, since scientists do not have access to collect data, because the companies control much of the research through patents and trade secret policies.

For the Law on Biosafety of GMOs click here, for its subsequent amendments click here.