At-a-glance:
Instituto Nacional de la Propiedad Industrial
Paseo Colón 717 (CP 1063), Buenos Aires, Argentina
Tel: +54 11 4344 4967/68
Fax: +54 11 4344 5286
Website: www.inpi.gov.ar
Though 2010 was a prosperous year for Argentina, the country m...
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At-a-glance:
Instituto Nacional de la Propiedad Industrial
Paseo Colón 717 (CP 1063), Buenos Aires, Argentina
Tel: +54 11 4344 4967/68
Fax: +54 11 4344 5286
Website: www.inpi.gov.ar
Though 2010 was a prosperous year for Argentina, the country may become a victim of its own success as 2011 unfolds. Alongside rapid economic growth, inflation soared dramatically throughout 2010. In January this year, the government was forced to urgently import $3 billion from Brazil's state-owned mint after Argentine banks struggled to provide enough bills to meet demand over the holiday season. Some IP firms have seen their work from local clients decline as a result of the situation. "It has become very costly," said one attorney. "That does not affect the foreign clients too much but it does affect domestic clients, which affects the amount of litigation." The dip in cases from Argentine companies has come at a particularly bad time, since work from international clients is only just starting to pick up again. "Everyone is thinking about how to recover from 2009, which was an awful year for most of us," said one partner.
Uncertainty over who will win the country's upcoming presidential elections in October 2011 – and how that will shape policy – has also made IP owners cautious. "Everybody's holding off on the expenses that are not urgent," said one partner. "Until we have these general elections I think it will be quite a slow year – nobody will invest unless it's extremely necessary."
However, some lawyers have concentrated their efforts on other emerging markets, which have become an increasing source of revenue. "We used to receive a lot of trade mark applications from the US and we are now getting a lot from Korea, Japan and China," said one partner. "The number of trade marks from the US has receded considerably and the number of trade marks from Brazil has also grown considerably. The world is changing."
Widespread internet access and the increasing popularity of social networking sites have created additional opportunities for IP firms. "People are beginning to complain that someone is using their trade mark or personal name on Facebook or in blogs, so we are obtaining evidence and trying to find a reason to take it down," said one practitioner. "But this is sometimes difficult because they are often hosted in the US, which is more inclined to protect freedom of speech."
Some partners expressed concerns that legislation may be too slow to keep up with rapidly evolving technologies. "We have very formal and slow legal proceedings," said one attorney. However, he noted that injunctions are fairly easy to obtain as a result of the country's accession to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in January 1995.
Lawyers also felt that patent office processing times are negatively affecting the volume of patent work they receive, particularly in certain sectors. "Mechanical cases usually take much longer – six to eight years on average," said one practitioner. "That's a factor that has been affecting the number of cases being prosecuted."
Counterfeiting was also cited as a major challenge for IP owners. "The police and courts do little to curb counterfeiters," said one lawyer. "The corporations can act, but of course they have to invest money, so they can't chase every small shop and street vendor," he added. "There are a lot of people making a living from counterfeit goods," said another practitioner. Argentina remains on the 301 priority watch list of the Office of the United States Trade Representative (USTR), which names countries considered by the US to have insufficient protection for intellectual property. However, many Argentine lawyers felt that border measures are slowly improving.
In December 2009, Argentina extended its copyright protection term from 50 to 70 years following lobbying by the entertainment industry. The change was controversial because it was retroactive, meaning that many works which were already in the public domain were privatised. "This has been significant," said one lawyer. "Many works that were about to fall into the public domain received an additional 20 years so the creators could reap more economic benefits."
In a landmark case in the Federal Court of Appeals over Unilever's Suave brand, the court accepted for the first time that a descriptive or generic word can acquire distinctiveness through widespread use. "The term suave means soft, but the mark had been used for so many years that it was considered to be distinctive and given protection," explained one partner. "That's the most important decision of the year."
The hotly-contested debate over whether Argentina should join the Patent Cooperation Treaty (PCT) has recently resurfaced. "It appears that there is a group in the [Chamber of Deputies] that is starting to move this forward," said one attorney. "The problem is that there is no political commitment to doing this." Overall, practitioners felt that attitudes may be shifting in favour of joining the PCT, though most doubted this would happen in the near future. Opinions were strong and varied as to why Argentina resists signing up. "There are many explanations," said one partner. "The local pharmaceutical industry – which is very strong – believes that the PCT will affect its business. Another is that some of the practitioners who have a lot of patent work are very happy with the system now – they don't want to change." Others took a more optimistic view. "If we join the PCT, I will be really happy," said one attorney. "It will be beneficial to the country and our clients. I think the world has changed a lot and you need to adapt to the market. It's the first of many changes we will face over the next 20 years."
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