Trademark Amendments - Chile
In recent years, Chilean legislation on intellectual property has been fundamentally reformed in order to comply with the WTO (TRIPs) Agreement and the Free Trade Agreement between US and Chile. Following changes in various trade marks were promulgated:
* Sound marks which are graphically represented are specifically recognized.
* Collective/Certification mark which were not previously accepted, have now been protected.
* Registration of non-distinctive marks are allowed to to be recognized and registered if they have acquired distinctiveness through use in Chile. This provides new companies an innovation whose trade marks were non-distinctive in the national market.
* Protection for famous trade marks registered in Chile that attain notoriety can now be used to oppose the registration of other identical or similar marks.
* Eliminating protection for all products/services. Before the revision, the service marks could be registered to identify specific services protected by the mark. However, according to new regulations, it is necessary to mention specific products identified by the mark in the application.
* Registration procedure to register a mark has been simplified. Previously it was examined first by the Registrar of Trade Mark Office and afterwards by the Head of the Industrial Property Department. Under the new developments, the Registrar's ability to reject an application is set aside in order to make it a more rational and expeditious procedure for the acceleration of the registration process.
* Patent disclosure of invention. Under the new regulations, certain types of disclosures of the invention made prior to the filing date of the patent application will not affect the application's novelty and set aside the prior standard of the so-called precaution patent.
* Revalidation patent. This type of patents which were available to owners of the subject patent restricting technological initiative and development, are no longer available. Now, in the new legislation a provision has been made that anyone will be able to protect these types of modifications as long as all patent requirements are met, besides the owners.
* Supplementary protection. This has been established in case of administrative delay in granting the patent. In this respect the period to apply for such patent is extended up to 5 years or up to the unjustified administrative delay period.
* Enforcement of IP rights. Under the original IP law, almost all infringement cases were challenged as penal actions in the absence of civil rules to seek civil actions. The new legislation now establishes that the owner of a registered mark will not be able to seek criminal protection to stop the unauthorised use of his mark, but also sue the infringer using civil actions to stop such acts based on specific and detailed criteria. In order to deal with infringement, the owner can apply for the promulgation of precautionary measures before or during the proceeding in which case the court may order the immediate suspension of the acts which constitute the infringement, confiscation of products, use of means and materials responsible for making infringement. In addition money or value coming from the sale or marketing of such products may also be confiscated by the court. Also the injured rights owner can claim damages due to either loss of profits the owner would have received, the profits the offender had obtained as a result of the infringement or the price the offender would have to pay to the rightful owner.
* New IP Court. A new second instance IP court, with specialized IP knowledge of the judges has been created to further processing and verdicts of appeals.
* Supreme Court. This is an important innovation, as the only way to access high tribunals of justice was through a recourse of complaint, requiring rigid procedure. The new legislation enacts the possibility to seek an appeal before the Supreme Court against second instance rulings given by the Industrial Property Court.
* New categories of protection. The original law recognizes only five categories for registration viz. trade marks, advertising phrases, inventions, utility models and industrial designs. According to new legislation, three more categories have been added which are industrial drawings, integrated circuit layout diagrams and geographical indications. A new protection for trade secrets and certain undisclosed information is also granted.
* Unfair competition. A new law has been enacted that regulates unfair competition contains provisions to protect IP rights for anything contrary to good faith or good custom by illegitimate means. The law describes several types of conduct that expressly qualify as acts of unfair competition. These include undue profiting from another person's reputation to their distinctive signs being confused with those of third party or the use of signs that lead to consumers making errors in identifying the origin of the goods or services offered. The court on the application of the injured party order for the cessation of the unfair competition, notwithstanding other precautionary measures available in the new legislation.
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