Argentina

Could food be protected by copyright?

By Maria Sol Porro

Since any student begins to study the law of Copyright in Argentina, we learn that this right protects the expression by a human being of ideas, procedures, methods of operation and mathematical concepts but not those ideas, procedures, methods and concepts in themselves. Typical examples of this exclusion were always weight loss methods, scientific theories and “culinary recipes”.

However, since a few years ago many chefs began to demand some recognition for the recipes and dishes created, according to the first ones, opening the subject to the following debate: does gourmet creation deserve to be protected by copyright? The answer to this basic question will determine if someone who plays the same dish as a chef must pay the author a certain right of remuneration or royalty.

As in any debate, we will always find the two positions: those in favor of recognizing the author’s copyright, basing their thinking on the need to protect the culinary creative act, comparing it with other artistic creations (musical, literary) that do they find protected. While on the other hand, we find the position contaria who argue that only can be considered “author’s dish” to that cooked by its author, and that any reallocation of this dish is by definition different from the first and, therefore, could not be protected.

However, despite the fact that the debate remains in force, a judicial or legislative solution has not yet been found in our country and, if there is a coincidence between both sides, it is difficult to find any of these areas. If we look beyond the borders, we will find that the issue also causes conflict in other countries. For example, in Spain the subject was discussed in the Cultural Federation of Associations of Spanish Cooks and Resposters, where the recognition of the gastronomic work is demanded in order to combat plagiarism among colleagues.

On the other hand, in the Netherlands, we find that the Court settled case law in a case of plagiarism of a box of chocolates (not only had the original recipe been copied, but also the shape and decoration of these) by declaring that the right Author can cover not only the aspect of the recipe (when a recipe is published in a book), but also its content and the successive executions that are made based on it. Finally, it is worth mentioning the denounce of an Australian chef against a Spanish chef, both with three stars Michelin, where the first accused the plagiarist, to which the Spanish chef defended himself referring to a “simple inspiration”.

Returning to Argentina, as mentioned before, our Copyright Law does not protect the recipes themselves, but rather how they are expressed, for example in a book. Thus, the recipe book of Doña Petrona or Narda Lepes (Argentinian chef) are protected as literary works, being forbidden the use by a third party of these works without their consent. However, it should be noted that the recipe itself is not protected. And therefore, anybody could reproduce it, in other words, in another book.

In this way, the debate is ongoing and the line of plagiarism and simple inspiration is very thin and very easy to cross while there is no clear regulation on this subject. Perhaps, with time, we will find ourselves in a future with a new protected work, since as we also learn from the beginning the art. 1 of the Copyright Law is not closed, if not merely exemplary, allowing the incorporation of new works.

Opposing a Trademark Registration in Argentina

According to data from the Argentine Patent Office (INPI) in 2016, there were 71.020 trademark applications and 14.211 trademark oppositions, around 20% of all applications. What’s the procedure for opposing a trademark registration in Argentina?

The Argentine Trademark Law 22362 establishes that every trademark application is followed by a formal examination carried out by the INPI. After the examination, the application is published in the Trademark Bulletin (Boletín de la Dirección Nacional de Marcas). After the publication, third parties have 30 days to oppose the trademark application if they think there may be a potential infringement of their intellectual property rights.

The Opposition Proceedings

Once an opposition is filed against a trademark application, the applicant is given a one-year term from the date he is officially notified of the opposition: within this term, the applicant has to obtain the withdrawal of the opposition through direct negotiations with the opponent, or file proceedings to the Argentine Federal Courts.

The difference with other legal systems is apparent: the INPI is neither allowed to decide on the merit of the opposition, nor can it provide advice to the parties. The opposition procedure takes place between the parties or can ultimately be referred to a Court, but it is never within the competence of the INPI.

Most of the oppositions are dealt and solved through amicable agreements – only a very little percentage reaches the trial stage. Agreements can follow informal, voluntary negotiations between the parties after which the applicant generally agrees to exclude some of the products or services from the trademark application. Within one year from the notification of the opposition, the  applicant should provide the INPI with evidence that an agreement has been reached with the opponent. In this case, the INPI will review the agreement between the parties. The INPI has the power to reject the agreement in case the trademarks are similar and may create customer confusion.

If the INPI deems the agreement valid, it will proceed with the next steps of the trademark registration.

It can also happen that amicable negotiations fail or are not pursued by the parties in the first place. In this case, the applicant can directly resort to Court proceedings. It is interesting to note, however, that in order to resort to any judicial action, the applicant must previously comply with a mandatory mediation proceeding. Mediation proceedings were introduced into the Argentine legal system in 1995 and are compulsory for most civil matters. The proceeding has to terminate within the term of one year from the notification of the opposition. This mediation seems a useless step, provided that the parties had the chance to resort to negotiation before. In reality, this mandatory mediation seems to be effective: when the opponent is summoned to a mediation hearing, the applicant signals that he or she is serious about going to trial, and substantial efforts are made to settle the case in this phase.

If the opposition is not withdrawn within the one-year term and the applicant does not start Court proceedings within the same term, the application is considered abandoned.

Health Authority seeks simplification of procedures

The Argentine Health Authority (ANMAT) has launched a public consultation aimed at simplifying the registration of almost 30 pharmaceutical active ingredients. The list includes both nonprescription, referred to as “over-the-counter” (OTC), and prescription medicines.

The goal of the project is the unification of the technical assessment and the first batch authorization, so both requirements are performed in only one procedure. Please click here to see the project (only Spanish version available).

ANMAT estimates that, if the project is approved, the assessment time for some procedures would be reduced by 85 percent.

The rules proposed in the project would affect products containing the following active ingredients: amoxicillin, atenolol, cephalexin, ciprofloxacin, dexamethasone, enalapril, ibuprofen, metformin, paracetamol, salbutamol, acyclovir and ranitidine, among others.

The consultation is open to everyone. Should you require any further information, please contact us.

Source: http://www.anmat.gov.ar

Registration of food products now online only

Beginning April 7, 2016, the registration of food products before the National Food Institute (INAL), a division of the National Administration of Drugs, Foods and Medical Devices (ANMAT), can only be made electronically through the Federal Information System for Food Control Management (SIFeGA). The previous hard copy registration system will no longer be available.

Parties needing to request a health authorization for food, dietary supplements and food for specific medical purposes in order to obtain an import-export registry will only be able to do so through SIFeGA.

Since the launch of the electronic registration system on November 30, 2015, the digital management of the National Registry of Food Products (RNPA) has optimized its organization and assessment times, with an increased efficiency of 80 percent over the previous paper system.

Source: http://www.anmat.gov.ar