Introduction:

Intellectual Property Rights in Latin America also known as South America, were not particularly robust to begin with. But the last three decades have seen the emergence of a strong and belligerent Intellectual Property protection regime that has brought about an appreciable transformation in this region to the current position of a sought after market in the international arena.

This seriousness in Intellectual Property growth and protection has not only catapulted Latin America as one of the fastest growing IP sectors in the world, but has made this region extremely attractive to foreign investors leading to positive trends and creation of economic opportunities that were non-existent so far.

Current Scenario:

Latin America presently comprises of 23 countries. These countries have amongst themselves and with other countries, formed trading blocs and groups. These regional, bi-lateral and multi-lateral treaties have emerged as game changers owing to their effective recognition, creation and protection of Intellectual Property Rights as a must to create favourable conditions for serious businesses to establish and grow, so as to enhance economic development and progress in the region. These trade blocs have thrust Latin America as a serious player in the global comity of nations.

Latin American Trade Blocs and Treaties:

TRADE BLOCS:

• The Andean Community
• Mercosure
• NAFTA
• DR-CAFTA

The Andean Community: is by far the most effective trade pact entered into between Bolivia, Colombia, Ecuador and Peru

The Andean Community was formed through the Cartagena Agreement in 1969 amongst the aforementioned countries. Regulation of Intellectual Property within its member countries is the integral goal of the Andean Community also known as 'Communidad Andina', a Supra-National body having Legislative, Executive, Judicial powers.

Intellectual Property Rights in the Andean Community is governed by Decision 486. The Andean Court of Justice is now the third most active International Court.

Success and Advantages of Decision 486:

• Fewer loopholes in the construction and interpretation of IP rules.
• Tribunal of Justice's establishment as a reliable authority over national courts.
• A conducive system with an effective mechanism toward enforcement of settlement of disputes.

Mercosure: also known as the 'Southern Common Market' was founded in 1991 via the treaty of Asuncion is yet another South American trading bloc. Decision 008 of 1995 contained in the Protocol of Harmonisation of Rules regarding Intellectual Property regulates Intellectual Property Rights amongst the member states.

Members are:

Argentina, Brazil, Paraguay, Uruguay, Venezuela.

NAFTA: The North American Free Trade Agreement came into force between

Canada, The United States of America and Mexico in 1994. NAFTA has been effective in elimination of barriers to cross-border investment and to the movement of goods and services amongst the three countries therein along with detailing specific conditions regarding the nature, scope and responsibility regarding Intellectual Property Rights of the afore mentioned countries. Chapter 17 of the NAFTA – Intellectual Property Rights, 19 CFR 133 deals with Intellectual Property issues amongst the three countries.

DR-CAFTA: Dominican Republic – Central America Free Trade Agreement between

The United States of America and Central American Countries:-
Costa Rica, El-Salvador, Guatemala, Honduras, Nicaragua, Dominican Republic

Specific importance given to intellectual property rights alongside other sectors has played a major role in boosting commercial opportunities for the United States while promoting regional stability, economic integration and economic development amongst the member nations.

TREATIES:

Madrid Protocol member countries: Brazil, Colombo, Mexico Other Treaties: The Paris Convention, WTO-TRIPS

Requisites for Trademark registrability in Latin America:

Trademarks must contain the following essential requirements to be registrable in Latin America:

• Distinctiveness of the trademark
• Non-descriptiveness of the goods and / or services as represented by the trademark
• Not be a well known term in the line of business, trade channels of the applicant's business
• Not be same, similar, identical, either visually and/or phonetically to prior registered, pending trademarks.

Applicants should bear in mind that the following will not be registrable as Trademarks in Latin America:

• Descriptive marks, names, words and signs that form an integral and necessary part of the usual designation of a product or service.
• Trademarks comprising names, words, signs that have passed into public domain.
• The inherent shapes in products.
• Natural or intrinsic colour of the products or a single colour applied on them.
• Trademarks that are identical or similar to previously registered and /or prior existing trademarks.
• Deceptive and / or misleading trademarks.
• Name, Pseudonym or Portrait of a person without their express consent.
• Advertising phrases that are not original.
• Trademarks contrary to Morality, Decency and against the law of the land.