Article 17 of the National Constitution protects Intellectual Property rights in general, by providing that an author or inventor is the exclusive owner of the work, invention or discovery, for the term prescribed by law.
6.1. Trademark Law
The regulatory framework of a Trademark is the Law 22,362 and the Regulatory Decree 558/81, as amended by Decree 1141/03, which determine the procedure to register a commercial trademark. Likewise, Argentina has ratified the Paris Convention on Intellectual Property Rights.
On the subject of trademarks, Argentina has adopted the “Nice Agreement Concerning the International Classification of Goods and Services” (currently 9th edition).
The first three sections of the Law 22,362 define the signs that may or may not be registered as trademarks, so as to obtain legal protection.
Once the mark is registered, the protection term is ten (10) years, which may be renewed indefinitely.
A mark is acquired by registration with the Directorate of Marks at the National Institute for Intellectual Property (INPI), which has the primary role to examine an application and granting registration to those that comply with the law, and to keep the register of marks granted and pending applications, and provide the public with information, both on the process and on the registration requirements for approved and pending marks.
Now, by exception, the courts have acknowledged protection of well-known marks that are used peacefully for a long period of time, upon considering that they are de facto marks.
A foreign mark is acknowledged by our legislation provided that it is duly registered in our country. However, if the mark is a recognized and well-known foreign mark, its registration is not indispensable, but it is advisable, because of the principle protecting well-known marks under the Paris Convention
6.2. Patents and Utility Models
In our country, patents and utility models are subject to the Law 24,481 (as amended and regulated by the Decree 260/96). Argentina is also a party to the Paris Convention (Law 17,011) and the TRIPS Agreement (Law 24,425).
The Law 24,481 provides that “a patent may be granted on an invention of a product or of a procedure, provided that it is new¸ involving inventive activity and suitable for industrial use”.
An invention patent is protected for twenty (20) years –not subject to extension– from the submittal of the relevant application to the National Institute for Industrial Property. The patent must be developed by its holder or by a third party, otherwise it is lapses.
A utility model is intended to protect innovations and features made to tools, work instruments, utensils, devices or known objects suitable for use in a practical work.
In this case, in addition to being new and having an industrial nature, the invention must determine a better use of the function which the modified tool or instrument is intended for. The utility model grants its creator exclusive rights to develop it, for ten (10) years not subject to extension, as from the date of the application.
A patent and a utility model may be transmitted and be the subject of a license. For the assignment to be effective with respect to third parties, it must be registered with the National Institute for Industrial Property.
6.3. Copyright
In Argentina, apart from Constitutional protection (Article 17), copyrights are primarily governed by the Law No 11,723, the Berne Convention and the Universal Copyright Convention.
It is important to note that Copyright protection only covers the expression of its content and not the ideas, which are a part of the common heritage of Mankind. The creation of a copyright does not require any formality, i.e. there is no requirement to register with a registry or to deposit copies, a copyright is born with the creation of the work. However, registration is advisable in order to achieve prompt and effective protection in the event of a violation.
The general principle is that a copyright protection lasts during the life of the author and seventy (70) years more –counted from January 1 of the year following the decease– with the author’s successors. After such term, property rights to the work enter the public domain and may be freely used, provided that moral rights are observed, which are perpetual and inalienable. For a movie work, the protection period extends fifty (50) years from the decease of the last person who was involved in its production, and for a photographic work the protection period lasts twenty (20) years after the first time it is published.
For a foreign work to have the same protection as an Argentine work, the author must comply with the formalities required by the country where the work was first published.
The Law No 25,036 amended the Law No 11,723, including software, databases and compilations within its scope of protection.
6.4. Technology Transfer
Technology transfers are governed in Argentina under the Law No 22,426, as regulated by Decree 580/81. Its first section provides that: “[the law] comprises any juridical acts for value having the primary or accessory purpose of a transfer, assignment or license of technology or marks by any person with domicile abroad, to any individual or entity, public or private, with domicile in Argentina, provided that the acts have effects in Argentina”. “Technology” is defined as any patent, industrial model or design and/or any technological know-how necessary to prepare products or provide services”.
Although there is no legal duty to register a technology transfer or a user license, by doing so the register provides a legal guarantee, as a copy of the contract and associated documentation is attached to an official file and acquires final evidence of its date. Also, under Argentine legislation, and depending on the purpose of the contract, direct benefits can be obtained for income tax purposes. Registration entitles the taxpayer to deduct, as an expense, any amounts paid in consideration for the technology acquired; and contributes to create a database for use by the Government and the public generally. We should add that such contracts are subject to international treaties entered into by Argentina to avoid double taxation.
A contract is registered with the National Institute for Industrial Property (INPI). The lack of registration of a contract does not affect its validity as such nor the validity of its clauses.
6.5. Industrial Models and Designs
Industrial Models and Designs are regulated by Decree-Law 6673/63, confirmed by the Law No 16,478, which provides that an industrial model or design includes any shapes included or matters applied to an industrial product, that renders it an ornamental item. They are also protected internationally by the Paris Convention.
In order to limit its scope, it is important to note that this legislation protects any visible (model or design) or tangible (only the model) aspects of the industrial product, in the manner in which it will be presented in the market, i.e. the outside layout or appearance wished to have a favorable impact on its consumers upon a glance (model or design) or contact (only the model).
In order for a foreign industrial model or design to be protected in our country, it must be registered in Argentina with the Registry of Industrial Models and Designs at the INPI.
The legal term of protection is five (5) years, renewable for two consecutive and equal periods. The same registration may comprise up to fifty specimens embodying a single model or design, provided that they are consistent with each other.
In the event of a conflict of rights, the new feature (priority in time as to the author) must be shown in court (federal courts).
6.6. Domain Names
The INTERNET domain manager in Argentina is NIC Argentina, and is a responsibility of the Ministry of Foreign Affairs, International Trade and Worship.
The Resolution 654/09 regulates the registration of a domain name, as follows: “... a specified domain name shall be granted, by principle, to the first individual or entity applying for registration thereof, with the exceptions indicated herein ...” (RULE 1)
The registration of a domain name lasts one year from the date of registration, and is renewable. The renewal must be requested in the last month of the registration term. If the domain registration is not renewed prior to the end of such period, the write-off procedure shall commence upon expiration thereof. A domain name in the write-off process may be renewed.
NIC Argentina has registration functions only and has no jurisdiction in the event of a dispute relating to the registration or use of a domain name. |
