Marcas contrarias a las buenas costumbres según el Indecopi

Marcas contrarias a las buenas costumbres según el Indecopi

Aurelio Lopez-Tarruella Martinez   February 23, 2010   No comments:

Gracias a Gustavo Rodriguez, abogado de los solicitantes, hemos sabido que "el Indecopi de Perú declaró infundado el recurso de reconsideración presentado por los solicitantes del signo El Pezweón y figura por considerar que resulta contrario a las buenas costumbres.

En este pronunciamiento, el Indecopi va más allá de lo que fue su primer pronunciamiento en contra: los solicitantes pretenden el registro de un signo determinado y es la autoridad la que invocando la prohibición que corresponda debe motivar adecuadamente su decisión de denegar el registro. No es el solicitante el que debe sustentar el porqué es registrable (ya que si alguien solicita el registro de un signo ello parte de la premisa de que éste será registrable a consideración del solicitante) sino la autoridad la que debe motivar el porqué de la denegatoria (lo cual nunca se hizo apropiadamente).

En este segundo pronunciamiento, el Indecopi va más allá y sostendría que no solamente los solicitantes tendrían que acreditar que el signo no es contrario a las buenas costumbres sino demostrar que éste es “socialmente aceptable”.

En opinión de Gustavo, el Indecopi, lejos de interpretar restrictivamente esta prohibición con bases tan subjetivas y difusas, ha llegado a una solución mucho más restrictiva y onerosa para los solicitantes de marcas".

Read More

XII Habano’s Festival

XII Habano’s Festival

Patricia Covarrubia   February 23, 2010   No comments:

This week Cuba celebrates the largest international meeting for the best tobacco -‘Habanos’. This year, the event is dedicated to the female market and will honour two Habanos' brands, 'Cohiba' and 'Romeo y Julieta'.

Producers, traders, experts and amateurs are joined together to see the launch of new vitolas. There is the new "Juliet'' in cartons designed to attract women; the 'Wide Churchill' by Romeo and Juliet; and also the 'Cohiba Behike' in three sizes.

Click here to read the programme.

Read More

Quandary for Chile's wine brands

Quandary for Chile's wine brands

Jeremy   February 23, 2010   No comments:

An article on BrandChannel ("The Grapes Of Wrath: Chilean Wine Brands Taking A Beating", by Russ Josephs, 16 February, makes depressing reading for Chilean wine businesses that have sought to position their products at the upper end of the market, where profitability is maximised. According to this article, while the market for wines remains thirsty, there is a current preference for cheaper wine lines, notably in foreign countries. The author adds (quoting his sources):

"Foreigners are actually drinking more Chilean wine than ever, with shipments up nearly 18 percent in 2009, as opposed to California wineries, whose 2009 shipments dropped by 4 million cases ... The problem is that people are choosing cheaper vintages, preventing Chile's wine brands from being able to "break out of the $10- to $20-per-bottle price point"...

A few years back, the Chilean wine industry decided to simultaneously curb supply and fund a global campaign aimed at promoting their wares, all in the name of achieving higher prices. But the recession destroyed this goal, and currently the industry is in something of a holding pattern. Making matters worse are the vinters who are selling in bulk to compete with countries like Argentina, Australia, and South Africa – all of whom are fighting for a share of the low-end wine trade.

This means that when the recession finally lifts, the quality that Chilean wineries were hoping to embody may be tarnished ...".

While there is no easy solution to this problem, Chile's wine producers may want to consider doing what the manufacturers of some household goods do: sell the same product under one brand name to the 'expensive' market and under another brand name to down-market consumers. That way, it should be possible to preserve the prestige value of the upmarket brand, which is not tarnished if the same wine is sold under another name to less discriminating purchasers.

Read More

Free Trade Agreements - who benefits?

Free Trade Agreements - who benefits?

Patricia Covarrubia   February 22, 2010   No comments:

Central America
The eighth round of negotiations towards a Free Trade Agreement (FTA) between the EU and Central America is around the corner. However, there is concern regarding the EU ambitious on Intellectual Property. The main worry is about access to medicines. Specifically, the 20 years duration and the data protection period are the thorny points. The EU proposes to extend both of them.

Studies showing how the proposed EU Intellectual Property could harm public health argue that the European Commission negotiators cannot longer claim ignorance about the harmful consequences of rigid regulations on intellectual property.

Peru and Colombia
Also around the corner is the FTA between this two Andean countries and the EU. However, newspapers reports are looking at the bigger picture. They inform that domestic producers are optimistic about their chances, since they seek to improve their access conditions for goods made in the country to a common market that has nearly 500 million people. For instance, in 2009 the EU was the second destination of Colombian exports with sales of $4.698 million. The intention is to increase that figure.

Once the agreement is into force, it will benefit industries such as leather, textiles and garments. The agricultural sector will also grow, as there will be tariff-free quotas for sugar and meat.

Of course, they are not turning a blind eye in certain issues such as bananas - taxes to enter the EU market were reduced from 176 to 114 euros per tonne in the framework of a negotiation in the WTO, but the Colombian negotiators aim to bring it down to 75 euros. Additional striking fields are the sales of services, and biodiversity.

While there is hope there is also concern. Surely this is normal in any agreement, even in marriage!

Impact of the EU-Andean Trade Agreements on Access to Medicines in Peru (Health Action International (HAI) final report here).

Read More

Kindle expands to other Latin languages

Kindle expands to other Latin languages

Patricia Covarrubia   February 22, 2010   No comments:

Launch in 2007, this electronic device (e-book reader) was made available to the Latin-American audience in October 2009 but only in English, German and French.

Last week it was revealed that authors and publishers can use the Kindle Digital Text Platform (DTP) to provide content in three other languages namely, Spanish, Portuguese and Italian. Indeed, good news for Hispanic writers and their readers.

I can't wait to read 'La Isla bajo el mar' (the island beneath the sea) by Isabel Allende...but, I guess I need to get one Kindle first!

For more info see here and here.

Read More

The LG trade mark and contested priority

The LG trade mark and contested priority

Jeremy   February 17, 2010   No comments:

The 35th Federal Court, Rio de Janeiro, ruled recently in an action brought by Brazilian company LG Informática Ltda against LG Electrics Investment Ltd and its Brazilian subsidiary (both part of South Korea's LG Electronics Group). The dispute related to the right to use the talismanic initials LG.

According to the court, LG Informática’s earlier commercial name rights gave it priority over the trade mark LG in the field of computers. Reaching this decision, the court (i) cancelled two registrations for the LG mark held by LG Electrics Investment for computer equipment in Class 9, (ii) ordered the National Institute of Industrial Property to reject five pending applications in Class 9 and one in Class 38 for LG, in respect of goods and services related to computer hardware and software and (iii) ruled that the defendants could not register the mark LG in relation to computer software or hardware in Brazil.

Since LG Informática’s priority was limited to the field of computers, the court made no order in respect of LG Electrics Investment's registrations and applications for scientific, medical, dental and veterinary equipment and cellular telephone devices in Class 9.

A second, unrelated court action between the same parties, this time for registrations and applications for the trade mark LG for goods and services in Class 9 in fields unrelated to computers, the same court rejected all LG Informática’s claims, including an application for a general order prohibiting the defendants from using the mark LG in Brazil.

Both rulings are said to be subject to appeal.

Source: INTA Bulletin, vol.65, no.3.

Read More

LIMITATION AND SUSPENSION OF PATENT RIGHTS: BRAZIL’S CROSS RETALIATION IS SET TO START. WILL THE GOVERNMENT REALLY APPLY THEM?

LIMITATION AND SUSPENSION OF PATENT RIGHTS: BRAZIL’S CROSS RETALIATION IS SET TO START. WILL THE GOVERNMENT REALLY APPLY THEM?

José Carlos Vaz e Dias   February 17, 2010   No comments:

As announced earlier by IP Tango (see its contents here), the Brazilian government took a serious step forward to apply trade barriers against American products in the amount of US$ 560 million and to further impose US$ 270 million retaliatory sanctions on services and intellectual property rights, as the WTO condemned US subsidies to cotton producers.

Firstly, CAMEX (Câmara do Comércio Exterior – the Brazilian Board Trade) approved on February 9 an updated list of 220 American products that will suffer tariff increase of up 100% of the value when imported into Brazil.

One day after, the President Mr. Lula da Silva signed provisional measure or interim measure 482 of February 10, 2010 (see full text in Portuguese https://www.planalto.gov.br/ccivil_03/_Ato2007-2010/2010/Mpv/482.htm ) allowing the suspension and limitation of IP rights of citizens or companies domiciled in countries that violate WTO’s trade rules. Such interim measure comprised the following weapons: (a) suspension and limitation of IP rights; (b) alteration of the rules and procedures that secure IP protection, mainly provided by the Brazilian Patent Office and the Ministry of Agricultural for plant variety; (c) alteration of the measures to apply the IP rights; (d) temporary prohibition of royalty remittances from licensing and technology transfer and (e) additional tax application to remuneration of IP owners.

Interim measure 482/2010 has been in force since February 11 and it needs to be reinforced by the Brazilian Parliament during the next 45 days. (see earlier IP Tango information here).

Despite the victory at the WTO, the Brazilian authorities seem to be driven by caution or, maybe, fear. You may choose the adequate feeling, but please bear the following facts. The day after interim measure 482/2010 was published, the government delivered a statement informing that the final list of retaliation products will be published on March 1, since the “list needs to pass through technical adjustments”, as informed by CAMEX’s Executive Secretary Mrs. Lytha Spíndola.

Further to that, the local authorities informed that solely patents related to medicines will be affected this time, but the final list of medicines will be delivered by the Health Ministry to CAMEX for publication on March 1.

In my viewpoint, the Brazilian government is being cautious and wise as it wants to gain time to convince the Americans to end up the subsidies. That would decrease the pressure to retaliate the maximum permitted amount: US$ 830 million. The Brazilian diplomacy is working hard in Washington and Brasilia, as one may imagine how unpleasant it is to retaliate a main trade partner.

Brazil will most probably be the first country to apply the cross-retaliation concerning IP rights, despite the fact that the WTO authorized it twice before. The first country to enjoy it was Ecuador against the European Union, but the sanctions were never applied. The second one granted to Antigua against the US, but no signs of sanction.

The government is also concerned about the side effects of the retaliation, which may range from US reaction to cost increase of industrial production. To prevent any side effects, the authorities have eliminated capital goods from the list and agreed to add a greater deal of agricultural goods, as the WTO complaint was on cotton farmers.

As to IP rights, the government has so far deviated from any allegation of illegalities, since interim measure 482/2010 gives the proper mechanisms for limiting and suspending such constitutional rights.

Nevertheless, there are important questions that have not been yet answered: Will the Brazilians be brave enough to apply any of the IP weapons? Will they be wise and sensible to measure the damage? One has to remember that retaliations at WTO are not punitive, bur rather compensatory to the losses from illegal trade practices.

These answers will be surely provided, but we shall need to await March 1, as this date seems to be the deadline set by the Brazilian government against the cotton subsidies.

Read More

México: De quien es la marca "CHIVAS"?

México: De quien es la marca "CHIVAS"?

Gilberto Macias (@gmaciasb)   February 16, 2010   No comments:

Ante el mejor arranque liguero de su historia, a las Chivas de Guadalajara, para muchos el mejor equipo de fútbol de México, los problemas le vienen desde fuera de la cancha y en relación con su marca.

Resulta que el propietario y presidente del Guadalajara, Jorge Vergara, perdió el uso de marca de las Chivas, que fueron restituidos al Club Guadalajara Asociación Civil, que ahora es la única y auténtica dueña de todos los derechos que se deriven de utilizar el nombre del también llamado "Rebaño Sagrado".

El Primer Tribunal Colegiado en Materia Administrativa dio a conocer hoy la ejecución de sentencia en el caso de la disputa por el derecho a utilizar las marcas del equipo de futbol Chivas del Guadalajara y la resolución fue que Vergara no podrá hacer uso del nombre, y si desea continuar haciéndolo tendrá que pagar.

Obviamente las reacciones no se han hecho esperar, y las Chivas ya han publicado diversos comunicados de prensa (aquí y aquí).

Sin lugar a dudas será un tema que seguirá dando de que hablar, solo esperamos que eso no afecte al equipo y siga la buena racha de resultados.

Más información aquí y aquí.

Read More

Brazil retaliates against the United States IPRs

Brazil retaliates against the United States IPRs

Patricia Covarrubia   February 15, 2010   No comments:

An interim measure was published last Thursday in the Official Gazette which retaliates against the U.S. The interim measure only deals with intellectual property and is effective immediately and must be ratified by Congress to become permanent law.

Last year, the WTO authorized Brazil to strike back against the United States because of subsidies that the U.S. government grants to producers of cotton in that country (see earlier IP tango post here). Brazil, then went on to develop a list of products that may have the import tax adjusted up to 100 per cent (see IP tango here).

With this new measure, Brazil will seek sanctions against intellectual property for an amount of up to $270 millions. So that, in addition to overtax the importation of goods from the US, Brazil may suspend and restrict the rights of intellectual property. The measure lists the possibility of retaliation on literary and artistic works, computer software, industrial design, crops and vegetables, and integrated circuits.

Read More

Argentina, TRIPS compliance and patents

Argentina, TRIPS compliance and patents

Jeremy   February 15, 2010   No comments:

Writing in International Law Office ("The TRIPs Agreement and aspects of patent prosecution in Argentina"), Carlos O Mitelman and Daniel R Zuccherino (Obligado & Cia) review various aspects of Argentine patent practice in the wake of that country's commitment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).


This article considers, among other things, the steps taken by the National Institute for Intellectual Property (INPI) to resolve the country's chronic backlog of unexamined patent applications; the authors mention that there have been some legislative initiatives towards the protection of pending patent applications but that these Bills, submitted to Congress, have not been considered.

Read More