by Moeller IP Advisors
It goes without saying that the agribusiness sector is one of the most developed in South America. Investments in R&D in this sector are common and in order to protect them, a satisfactory legal framework has to guarantee the security of those economical efforts.
Infringements of Cultivar Rights
New plant varieties are not patentable neither in Brazil, nor in Argentina, but they receive a similar protection through the Brazilian Plant Variety Protection Law (Law 9456), enacted in 1997 and the Argentine Seed Act (Seed Act No 20247), amended in 1994. Both laws permit the breeder to grow and commercialise the plant variety, provided it fulfills the requirements of novelty, stability, uniformity and distinctiveness. The duration of the protection can vary. In Argentina, the National Cultivar Property Register can grant the Property Certificate up to twenty years, depending on plant species. In Brazil, the protection lasts generally for fifteen years, and is extended to eighteen years for grape vines, fruit trees, and ornamental trees.
However, the legal framework would not be complete if the breeders were not given effective instruments to protect their rights from potential infringers, preventing third parties from commercialising the plant variety.
In Brazil, the PVP Law introduced a new body, the National Service for the Protection of Cultivars Serviço Nacional de Proteção de Cultivares (SNPC), responsible for the protection of breeders’ rights. Also, the PVP Law establishes that an infringement occurs when someone sells, offers for sale, reproduces, imports, exports, packs or holds in stock for these purposes or helps the spreading of the protected plant variety without the authorisation of the owner. In the case of a supposed infringement, the owner can file a suit against the infringer in a civil court.
In Argentina, very similarly, the infringement takes place when a party doesn’t obtain the authorization of the breeder for production, reproduction, supply, sale, export, import, advertising, any kind of commercialisation, or even the storage of the plant variety for the purpose of commercialisation.
Protecting Cultivar Rights in Practice
However, how is it possible to assess, in practice, whether the plant variety registered for protection and the variety which has been commercialised – and is potentially infringing the owner’s rights – are the same? This can be particularly complex, especially if the variety that is being protected is a hybrid crop.
The analysis is carried out by confronting the morphological and molecular markers of the two plant varieties and examining in which measure they overlap. Not only do the breeders need to attach relevant, updated scientific evidence to their claim, but also the Courts and the technical experts appointed by them need to possess the technical expertise to evaluate it.
In South America, the case law on cultivar rights infringements is still very limited. In a recent interesting case, Fibria, one of the major producers of eucalyptus pulp, brought an action against the company Eldorado Brasil Celulose for infringement of an Eucalyptus clone. In the decision handed down in 2015, the 4th Civil Court of Três Lagoas, Brazil, confirmed the report provided by the technical expert. The report, relying on DNA testing, concluded that there was a chance of 99.99999981% that the eucalyptus trees cultivated by Eldorado were genetically identical the variety owned by Fibria.
South America owns an incredible natural plant variety and its climate is dominated by extended and relatively warm regions which favour cultivation. No wonder South America’s crop accounts for around the 10% of the world’s produce. In the region, Brazil and Argentina are the main exporters, given their large production of oil seeds and grains.
Building upon the natural variety of plant life, commercial farms in the region have further invested in precision agriculture and plant breeding, in order to improve the production both quantitatively and qualitatively.
Is this investment in plant breeding protected by IP law in South America? In other words, can plants be patented?
Patent is not an Option
The short answer is no, at least for the major players in the area. Neither Argentina Patent Law, nor Brazil Patent Law provides patentability of crops and plants.
In particular, Argentina Patent Law No. 24.481/96 provides, at article 6, letter g, that “all living material and substances pre-existing in nature” are not to be considered inventions, and the corresponding regulation states that “Plants, animals and the essentially biological processes for their reproduction shall not be considered to be patentable material”.
Similarly, Brazil Patent Law No. 9,279 expressly excludes plants from being protected by patents: article 18 prohibits the patenting “of the whole or part of living beings, except transgenic microorganisms”.
And by transgenic microorganism, the Brazilian system means bacteria, mildews, yeasts, fungi, virus, but not transgenic plants, cells or even seeds.
So, how to protect the economic investment that tech companies and farmers have put into plant breeding?
How to Protect Plant Variety
The good news is that both Argentine and Brazilian legal systems provide plant breeds a protection similar to patent law.
Brazil enacted the Brazilian Plant Variety Protection Law in 1997; the law subsequently incorporated the provisions of the 1978 revisions to the International Union for the Protection of New Varieties of Plants (UPOV) Convention. Under the PVP, a new plant variety or a plant variety essentially derived from another cultivar can be protected if it is novel. The variety should also be distinguishable from any other variety, sufficiently uniform among individuals and stable after repeated reproduction.
The plant variety is protected for fifteen years from the date the PVP certificate is granted, except for grapevines, fruit trees, and ornamental trees that are protected for eighteen years.
The PVP gives the breeder the exclusive right to produce and commercialize the plant variety in Brazil: third parties need to obtain a previous authorization from the right’s owner. There are some exceptions: no authorization needs to be required if the seeds are planted for personal use; if the product obtained is used or sold, except if for reproduction purposes; if the plant variety is used as source of variation in genetic improvement or scientific research; and finally, if seeds are multiplied by a small rural producer for donation or exchange.
Argentina was the first country in South America to protect plant breeds. The Law No. 20.247 so called Seed Act, was enacted in 1973 and modified in 1994 and adopted the UPOV convention. Similarly to the Brazil PVP Law, the Seed Act grants the owner the right to produce and market a breed in Argentina for 20 years, provided that this is distinctive, homogeneous and stable and new or recently exploited. Again, there are exceptions to breeders’ rights: farmers can plant seeds for production on their land without authorization, although they can’t deliver it to third parties for reproduction; plant breeders can use plant varieties to develop new ones, without authorization; and finally the breeder’s rights do not extend to the use or sale of crops and products.
What Are Keywords and Meta Tags
When online users look for information on Google or other search engines, they use “keywords” or “search queries”. These are words or sentences that describe what users are looking for. Obviously, everyone wants their website to rank first on Google for some given “keywords”, and there are several techniques to achieve that. First, you may want to use those keywords repeatedly in your page content. Secondly, you may want to rely on a paid service like Google Adwords: you pay Google to advertise your site and show it on the top of the search engine results, for some precise keywords. Third, you may want to use “meta tags”: instead of placing the keywords in the website content, you disseminate them in your page’s code: they are not visible on the website itself, but they help tell search engines what your website is about.
Let’s say you run a design agency: you can use keywords like “design services”, “logo design services” and so on in your page content, you can pay Google to place an advert for the same keywords, or place meta tags in your page’s html code.
As competition for certain keywords is fierce, some marketers have come up with more refined strategies: a common one is using “long tail”, more specific keywords for which the competition is lower, for instance, “logo design services belgrano buenos aires”.
Some companies had an even better idea: using, as a keyword, the name of their competitors, with the result in mind that people looking for their competitor’s website would see their site first. At first, it might seem like a great idea…
Organización Veraz v. Open Discovery
This is what happened to hundred of users who, in 2007, searched for the business information company, Veraz, on Google Argentina. After typing the word “Veraz” in the browser, the first sponsored result appearing was an ad for…GlobInfo, a service supplied by Open Discovery, a competitor of Veraz.
Veraz claimed and proved that Open Discovery had used the trademark “Veraz” and “Organización Veraz” as keywords when setting up the advertisement on Google.
In one of the first decisions on the matter, and certainly the first in Latin America, the Federal Court of Appeals for Civil and Commercial Matters of Buenos Aires ruled against Open Discovery, establishing that: using keywords that correspond to the competitor’s mark fully infringes its trademark rights, and furthermore, it constitutes unfair competition, because it is likely to cause confusion or misunderstanding about the origin of the services.
The decision was in line with the previous EU Court of Justice in cases C-236/08 to C-238/08 (Louis Vuitton v. Google), where the judges ordered the competing company to cease using the plaintiff’s trademark in the source code of their web page (as meta tags) and as a keyword. More recently, several other courts all over the world have confirmed the same orientation.
Using a competitor’s name as a keyword or meta tags constitute a trademark infringement.
For this reason, you need to make sure that your developer or marketing team uses keywords or meta tags correctly – without relying on appealing but illicit shortcuts!
On the other hand, meta tags and keywords can be considered as part of your trademark portfolio and need to be protected – as much as if they were your company logo or trade name. With a caveat: keywords and meta tags may not be visible, so the analysis of the competitor’s website or marketing strategy must be particularly careful.
The Potential of Brazil
Brazil is extremely rich in natural resources and biological variety. The production of ethanol fuel from sugarcane – Brazil is the world’s second largest producer – is just an example: the potential is even greater, as a very advanced agri-industrial technology pairs with an abundance of arable And biofuels are not the only application of biotechnology: biological drugs constitute another rising sector that attracts enormous investments in R&D.
Patentability of biotech inventions in Brazil is based on two major normative acts: the Industrial Property Law (IPL) n. 9.279/96 and the Guidelines for the examination of biotech patent applications (resolution n.144) published by the Brazilian Patent Office in 2015.
The two acts are to be considered together when examining patentability of biotech inventions: the “old” IP law, indeed, provides a series of exclusions, whereas the Guidelines specify the patentability of biotech inventions in a very detailed way, keeping up with the most recent technological advancements.
According to the IPL, the following can’t be patented: therapeutic, surgical and diagnostic methods, natural living beings, biological materials found in nature or isolated from it and natural biological processes/methods.
However, the Guidelines establish that the following inventions are patentable, as long as they possess the traditional elements for patentability, that is, being novel and involving an inventive step: transgenic microorganisms; recombinant, modified and synthetic biological materials such as genes, proteins, sequences if they can be clearly distinguished from their natural counterparts; monoclonal, recombinant, modified and chimeric antibodies; biological processes and methods, like those for obtaining, modifying, manufacturing and using biological materials and living beings; compositions and formulations comprising biological materials or strains as found in nature and at least one additional component that does not represent a mere dissolution of a non-patentable subject matter.
Moreover, the Innovation Law n. 10.973/2004 aims at nurturing collaboration between the academia and the enterprises, and the Biosecurity Law n. 11.105/ 2005 governs safety, monitoring, and cultivation of biotech crops: although they are not directly related to patents, they help enhance the legal framework that surrounds biotechnology and create the ideal environment for the investments and research to strive.
Notwithstanding the legal framework tries to cope with technological progress, the path to obtain a biotech patent is not exactly smooth. Backlog is one of the main issues that plague the patent process in Brazil: according to data from the INPI, the average time for granting a biotech patent is around 12 years.
There are several reasons for the backlog: first the insufficient infrastructure of the INPI; second the lengthy procedure that provides a double examination performed by the Brazilian Health Surveillance Agency (ANVISA) for all biotech patents.
For this reason, since 2012 Brazil, has introduced a fast route for green patents in the field of alternative energy, transportation, energy conservation, waste management and agriculture. The Green Patent program, born as a pilot program, seems to have achieved excellent results, with an average waiting time of two years and has become permanent on the 6th of December 2016.
You are a professional photographer taking photos in a modern, beautiful city like Rio De Janeiro. It is a safe bet to say that, more often than not, you will happen to include copyrighted monuments, buildings and works of art in your photographs. You may do that accidentally – you want to depict someone and the monument stands in the background; or you may do that deliberately, because the monument is meant to be the subject of your photography. You have to admit that including copyrighted materials when taking photos in public spaces is basically unavoidable. But what are the consequences of it?
The “Freedom of Panorama” Exception
Freedom of panorama is the right to take commercial or personal photographs of public spaces. Brazilian copyright law protects freedom of panorama quite broadly. Indeed, Article 48 of Law No. 9610 of February 19, 1998, on Copyright and Neighboring Rights provides, “works permanently located in public places may be freely represented by painting, drawing, photography and audiovisual processes.” It seems that Brazilian law renounces to protect the copyright of the artist, sculptor or architect who created the work situated In a public space. For the creators, the freedom-of-panorama mean a relevant loss of control over copyright in their works.
The case of Christ the Redeemer
The statue of Christ the Redeemer stands above the Corcovado mountain in Rio De Janeiro, and is certainly one of the landmarks of that city. It goes without saying that it has certainly appeared in many photographs, postcards and documentaries.
The Christ the Redeemer is still covered by copyright. The statue was designed by Brazilian engineer Heitor da Silva Costa and it was sculpted by French artist Paul Landowski: Landowski died in 1961, and per Brazilian law economic rights last until 70 years from the death of the creator. However, who owns the copyright has been very much under debate. Landowski’s heirs claimed royalties on the access tickets to the statue; however, it is known that the sculptor was working under commission from the Archdiocese of Rio de Janeiro, which ultimately seems to be the legitimate copyright owner.
Indeed, in 2010, the Archdiocese sued Columbia Pictures for copyright infringement. Columbia produced a disaster movie titled “2012,” where a giant wave topples the famous statue. The billboard of the movie also depicted the statue about to be covered by the wave. The Archdiocese claimed they had infringed their copyright – both in their economic and moral rights and demanded damages, while Columbia rebated that a license was indeed pursued, but from the heirs of Landowski.
More recently, in 2014, during the Football World Cup, Italy’s state television, Rai, broadcasted a commercial featuring Christ the Redeemer wearing a blue Italian football shirt. The Archdiocese of Rio again claimed that Rai infringed their copyright in the statue.
How are these copyright claims compatible with the “freedom of panorama”, that Brazilian law seems to protect? The matter is highly debatable: the law is clear, but its ratio jurisis, probably, protecting small professionals rather than the interests of big corporations. Also, freedom of panorama has been conceived as an exception to the general copyright rule rather than a principle. But where do you draw the line? The issue between Columbia and the Archdioceses was not solved by a Court, but was – probably – settled privately between the parties, as Columbia lawyers declared “We are currently in discussions with the archdiocese in hopes of reaching an agreement in this matter.” The decision to settle is a clear indicator that an established interpretation on the limits of the “freedom of panorama” exception is still missing.
Your business’ distinctive signs, be it the trademark, the colors, and font of the websites, the packaging all play an important role in making sure that customers can easily identify your products. However, not all the elements that fall under the category of “brand” and that make a product or a service distinctive and characteristic, receive the same degree of protection under Brazilian law. Indeed, while trademarks enjoy a pervasive regulation, the same is not true of the so-called “trade dress”. Trade dress refers to the visual appearance of a product or its packaging or even the atmosphere or design of a shop or a business. While trade dress is not mentioned in the Brazilian law, it is true that it has started to be widely recognized by the legal writings and by the case law; and although the Brazilian IP law doesn’t provide expressly for the institute, the Courts have interpreted the norms on unfair competition so to extend them to the relatively new phenomenon of trade dress.
The Trade Dress Protection in the Brazilian Law
Article 5, subsection XXIX of the Brazilian Constitution states that “The law shall assure inventors of industrial inventions a temporary privilege for their use, as well as the protection of industrial creations, the ownership of trademarks, company names and other distinctive signs, taking into account social interests and the technological and economic development of the Country”.
Therefore, not only the trademarks but all the signs that are likely to identify and differentiate a company and its products are worthy of protection. The trade dress, being a set of visual and sensorial features of a product or a place, that gives a particular “look and feel”, definitely falls under the category of “distinctive signs” as provided by the Constitution.
Moreover, the Brazilian Intellectual Property Law, at the art.209, recognises the right to recover damages against “acts of unfair competition not set forth in this Law, but that tend to prejudice another person’s reputation or business, create confusion among commercial or industrial establishments or service providers, or among the products and services placed on the market.”
It seems more than legitimate to imply that the “trade dress”, although not expressly mentioned in the law, deserves a certain degree of protection.
Trade Dress Protection in the Case Law
In 2006, in one of the first trade dress cases, the companies Procter & Gamble, Boehringer Ingelheim and Bayer filed separate lawsuits against EMS for infringing the trade sets of the products Syrup 44E Vick, Buscopan Compound and Aspirin, respectively.
The plaintiff asked for preliminary injunctions, that were granted because the court found that there was “unequivocal evidence” of trade sets infringement.
More recently, the beer manufacturer Duvel brought an action against the Brazilian company Cervio Comercio e indústroa de Bebidas Ltda, claiming infringement of the trade dress of the notorious Duvel beer, in particular for some elements of the packaging and the label, that, taken together, were likely to induce the customers into confusion. The 7th Trial Court of the city of Rio de Janeiro evaluated the degree of distinctiveness of the infringed trade dress, the coexistence of the products in the same market, the awareness of the infringer and the ability of the average customer to differentiate between the two products, concluding in favour of Duvel. The case is particularly interesting because the Court has declared a series of explicit and detailed requirements for identifying the trade dress infringement.
Different Trademark Classes
This post is tottally focused on clarifying the different Trademark Classes. If you want to register a Trademark but you don’t know what class you have to choose this information interests you. Keep reading.
When you register a trademark, you also need to specify which products or services you want to register it for. The Nice Agreement established 45 classes of goods and services -classes 1-34 include goods and classes 35-45 include services. Its classification is revised every five years to make sure it is up-to-date with the latest technological changes. Argentina adopted the International classification system of goods and services in 1981; Brazil did not officially sign the Nice Agreement, but since 2000 it has been using the same classification and its updates.
Details of the application
1- Particular Products or Services
In Brazil, it is not enough to specify the class: you also need to specify the particular products or services you want to trademark. For instance, if you want to register the trademark Ferrari, the corresponding class would be the 12, which corresponds to Vehicles; but you would also need to add a description for the product. If you apply electronically, you will have a predetermined set of terms you can choose from (in this case, Cars/Automobile); if you submit a paper application, you are free to use the description you wish to use. However, it is recommended to pursue the electronic way, not only because of the lower fees but also because the descriptions provided by the applicant can risk being rejected by the INPI, making the whole process longer and more costly. In Argentina, on the contrary, there is no need to provide a description, the indication of the class is enough.
2- Multi-Class Applications
Unlike Chile or Uruguay, neither the Argentinian nor the Brazilian system allows multi-class applications. This means, that if you sell products or provide services that cover 2 or more classes, then you would need to file 2 or more different applications.
While it is necessary to register the trademark in each class to be granted protection, it must be noted that the courts granted protection to the owner of well-known trademarks both in Brazil and in Argentina, even without a registration to a particular class. In other words, courts would give the owners the right to oppose third-party trademark registrations even in classes not covered by the original registration. Brazilian courts defined dilution as ‘an offence to the integrity of a distinctive sign, which has the effect of reducing its market power’.
3- Complex Products
As classifications are arbitrary, you may find that they do not exactly fit the product or service you want to register. Sometimes certain products are so complex that they are likely to fit into more than one class; what’s more, some products can also include a service. How many classes should you choose? For instance, if your company sells software but also provides training or assistance on that software, you may want to register your trademark in different classes, covering both the product and the service.
On the other hand, if your company sells clothes, you will want to register in class 25 (clothing), but not for class 23 (yarns and threads). In other words, you don’t need to register a trademark for every single component your final product is made of.
If you need help registering a Trademark or do you need help contact us. At Moeller IP we have specialized trademarks attorney since 1929.
Are you the owner of a well-known trademark? Has someone ever contacted you asking to sell you a domain name which is very similar to your own domain or trademark? If yes, you may have been the victim of cybersquatting.
What is cybersquatting? It is the practice of registering domain names using a small variation on a trademark’s name, in order to mislead the users and direct traffic away from the legitimate pages. Sometimes the misleading domain is registered simply to be resold to the trademark owner, sometimes it is linked to a page that sells counterfeited items or contains pay-per-click ads in order to monetize the traffic. According to the World Intellectual Property Organization (WIPO), cybersquatting cases have been rising exponentially and hit a new record in 2016.
Types of Cybersquatting
Cybersquatting can consist of “typosquatting” or “URL hijacking”, where the misleading website minimally differs from the legitimate one, for instance, a couple of letters. This type of cybersquatting exploits typos made by Internet users when typing a name in the browser: entering an incorrect website address may lead them to the website owned by the cybersquatter. For instance, in 2003, in one of the first cybersquatting cases decided by a Brazilian court, an individual was condemned to pay $350.000 in damages to the company Bradesco and to Banco BCN for registering the domain names “wwwbradesco.com.br” and “wwwbcn.com.br”, which differ only one dot from the legitimate “www.bradesco.com.br” and “www.bcn.com.br”.
Another popular cybersquatting technique is buying a second level domain name (ccSLD), like org.br or inf.br, while the legitimate owner only registered a top- level domain (ccTLD), like .br. In the case Carl Zeiss vs. Quality Technologies ComércioImportação e Exportação Ltda. a Brazilian court ruled against the company Quality Technologies, which registered the domain name “www.zeiss.com.br”, stating that the trademark Zeiss was owned by Carl Zeiss do Brasil Ltda. It is interesting to note that in Brazil there is the possibility to register as many as 66 different second level domain names, hence it is a real heaven for cybersquatters!
What to do in case of Cybersquatting
Should you become aware of cybersquatting activities that damage your brand, the first step is referring to WIPO, appealing to a Uniform Domain Name Dispute Resolution.
In order to proceed, the complainant needs to prove that the domain name is identical or confusingly similar to a trademark he owns; that the registrant does not have any rights or legitimate interests in the domain and he is acting in bad faith. When it comes to the requirement of bad faith, the WIPO will assess several factors: whether the domain name was primarily registered in order to be resold to the legitimate trademark owner, or with the primary purpose of disrupting the business of a competitor; or if the registrant is using the domain to attract users to his website, by creating a likelihood of confusion with the complainant’s mark. The UDRP is generally quicker and relatively less expensive than a traditional legal suit and it can be the best option, especially if the parties do not belong to the same jurisdiction.
A procedure in front of the WIPO does not exclude the possibility, in the case of an unsatisfying outcome, to refer to a national court dealing with trademark infringement cases.
It is also possible, although not advisable, to bring the case in front of a national court in the first place. In Brazil like in Argentina, the competence for cybersquatting cases belongs to civil courts. The procedure in this case is longer than in front of the WIPO, although the claimant can request a preliminary injunction to prevent the registrant from profiting from the domain name before a final decision is reached. Similarly to a UDR procedure, the claimant will need to prove the bad faith of the registrant.
The Online Marketplaces
In Brazil, internet access has been growing rapidly and so have legitimate services for online delivery of copyright materials: for instance, in 2014, digital revenues of the music industry in Brazil increased by almost 31%, which is an incredible number considering that Brazil is the world’s 9th largest music market. Platforms like Crackle, HBO, Netflix, Globo Video, iTunes/Apple Brazil and Mundo Fox offer low-cost movie streaming and video games are available through legitimate online providers like Xbox Live, PlayStation Network and Nintendo eShop. However, online marketplaces have to face a growing issue, which seems to increase as quickly as the internet’s audience: the issue of online piracy.
A similar situation exists in Argentina: since 2006 the country has been on the Priority Watch List of the Special 301 Report, drafted by the Office of the United States Trade Representative (USTR), which shows a critical level of piracy online (Brazil is “only” on the watch list).
Online Piracy: a Widespread Issue
Online piracy has been using two prevalent channels. The first consists in the so-called cyberlocker services: sites targeted to the local audience that link to infringing distribution hubs, located elsewhere. The referring site is in Portuguese or Spanish and sometimes hosted in Brazil or Argentina, while the hub, that ultimately provides the content, is located outside the continent. The second channel is file sharing through peer-to-peer (P2P) networks. A 2014 study by TrueOptik Data Corp. estimated that the value of the unlicensed files exchanged in Brazil through BitTorrent (a famous P2P network), has reached 100 billion USD, ahead of India, U.S. or Western Europe.
Tackling the problem effectively means balancing the interests of two entities: the content producers, like film production companies or music labels on the one side, who want to see their copyright protected; and internet service providers (ISPs), like Google/YouTube or hosting providers on the other, that may indirectly contribute to spreading pirated materials.
The Legal Weapons
In Brazil, the legal framework for anti-counterfeiting includes the Copyright Law (Law 9,610/98). As it seemed clear that the Copyright Law contained outdated weapons to combat cyber piracy, in 2014, the Parliament enacted the Marco Civil da Internet (Law 12.965/2014) aiming at establishing “principles, guarantees, rights and obligations on the use of the Internet in Brazil.” With regard to copyright infringement, the Marco Civil provided against the attribution of liability to ISPs. According to the case law of Brazilian Superior Court of Justice, infrastructure providers, internet access providers and providers of hosting services for the storage of data are all to be considered ISPs.
Marco Civil established that ISPs are not responsible for the content published online by users unless they refuse to remove the material after a court order has been enacted. In other words, the provider will only be subject to civil liability for copyright infringement if, after a specific court order, it does not take steps to delete the content, with the exception of material containing private sexual content. In this case, the intermediary could be considered liable for damages if failing to act upon a notification coming directly from the user.
In Argentina, a bill regarding ISPs liability was introduced in 2013 but has not yet become a law. However, the Supreme Court has come to conclusions very much in line with the Brazilian legal framework. In the 2014 landmark case Rodríguez v. Google Inc. (file number 99.613/06) the judges have stated that the ISP is responsible only if it is correctly informed by a private notification directly by a user (when de damage is evident and rude) or by a take down order issued by a court or an administrative body (When the harmful content requires clarification).Read More
Both the Brazilian system and the Argentine system provide for two types of protection to technical innovations: patents and utility models.
Patents, as we have seen, protect inventions that are new, involve an inventive step and are capable of industrial application. Utility models can be considered as a sort of a minor patent, which consists in a mere functional improvement on products that already exists. A third hybrid figure, the one of industrial design, also exists: industrial designs define the ornamental or aesthetic aspect of a product and are protected if they provide the product with a new and original appearance and are subject to industrial application.
What are utility models and why to choose them
Utility models consist in a functional improvement in the use or in the productive process of an object which already exist.
It is interesting to note that Brazil was one of the first countries, in 1945, in providing protection to utility models. In fact, even in 1975, only ten countries had utility models provisions in place and until the 1990’s utility models (or petty patents as they were also called) were regarded as something exotic in the intellectual property world. In Argentina, they were introduced in 1995.
In Brazil, although utility models applications are substantively examined for the requirements of novelty, inventiveness and industrial application, the procedure is two years faster than for traditional patent applications. The duration of protection is also shorter than for patents: in Brazil, it is 15 years from the filing date, in Argentina is 10 years.
What are industrial designs
Industrial Designs consist of two or even three-dimensional forms applied to an object for ornamental purposes, and subject, as we said, to industrial application. Industrial Designs should be new and original in order to be granted protection: they are considered novel if they are not disclosed prior to filing and not included in the state of the art.
Industrial designs are protected for 5 years from the filing date in Argentina, extendable up to 15 years. In Brazil, they are initially protected for 10 years extendable until three times for 5 more years each.
Accelerated route for particular patents
Although they cannot be considered as a different kind of patent on their own, in Brazil pharmaceutical and green patents are granted an accelerated examination, substantially reducing their approval time.
Pharmaceutical patents can be granted the fast route in two cases: the Health Ministry can request it if the patent application is consistent with the health care public policies; or the applicants can request it for applications referred to the diagnosis, prevention and treatment of AIDS, cancer or neglected diseases as defined by the World Health Organization. The whole process takes around 6-12 months to complete.
Instead, the Green Patent program is a pilot project which speeds up the examination process of patent applications related to clean technologies in the field of Transport, Alternative sources of Energy, Energy Conservation, Waste Management and Agriculture. The procedure for granting a green patent lasts less than a year and a half.