ARGENTINA: Collective Trademarks
On August 27th it was approved Decree No. 1384/2008, corresponding to Law N° 26.355, that refers to collective trademarks
Before discussing the regulation at issue, set below please find a brief overview about this new IP element implemented in the referenced legislation
What is a collective trademark?: “Those used to distinguish products elaborated and/or services provided by associations aimed at the development of social economy ( art. 1).
Who can apply for and own a collective trademark?: Only an association formed by manufacturers and/or service providers that are recorded in the “Registro Nacional de Efectores de Desarrollo Local y Economía Social” (local Development and Social Economy national department), created by Decree No. 189/04 of National Executive Power (art. 2)
What documents are necessary to apply for or assign a collective trademark? The application or assignment of collective trademark must be filed together with the Incorporation Act of the applying Association, certificate of registration with the respective social economy national department, list of rules and conditions governing the use of a CT (this is very important) – (art. 5)
Can a CT be renewed?: Yes. “When applying for the renewal of a CT, an affidavit must be filed through which it must be reported if said CT has been used during the last 5 years at least in one of the classes registered and the product or service will be indicated
The main aspects included in the a.m. decree, complementing Law 26.355 are
CT can only be assigned to those who meet the requisites for the owner of a CT
The applicant of a CT, on applying for same, will be able to desist, without cost, from any class (one or more) in which there’s no interest
The TM Office is appointed as the Authority for resolving opposition procedures against CT within a term of 6 months counted as from the notification of the opposition by summons It’s to be highlighted that pursuant to legislation No 26.355 the opposition against a CT application must be lodged individually and in relation to each of the classes claimed therein
The resolution issued by said Authority can be appealed at the Appeal Court (Cámara Nacional de Apelaciones en lo Civil y Comercial Federal) within the term of 30 days as from notification
Every owner of a registered CT can request any preliminary injunction to the corresponding Judge, if in knowledge of the existence of objects illegally identified with said trademark, with the purpose of preserving its rights. Some of these injunctions are: a) seizure of the objects, b) stock and description, and c) confiscation of the infringing objects
Finally, it’s to be remarked that the Trademark Law No. 22362, will be applicable in the cases referred to causes of registrability of the chosen sign, as well as in respect of the causes of extension of property rights of a collective trademark. As far as the first aspect is concerned, the lack of compliance of the mentioned dispositions will be considered causes of nullity of CT.
Notes: Author: Estela De Luca, IP Lawyer at Moeller IP Advisors.