Cars, sarapes and green beans, all southern style

Kat friend Fredy Sánchez Merino provides IPKat readers with his latest review of recent IP developments in Latin America.

Brazil-The Tribunal de Justiça do Rio de Janeiro has finally ruled in the case of BMW v EEA and Com. de Veículos Ltda (here), a process that began in 2012, when BMW sued two Chinese distributors under the Brazilian unfair competition law for commercializing the Lifan 320 model vehicle. Ruling in favor of BMW, the court forbids the commercialization, exhibition, promotion, and distribution of the Lifan 320 model car due to its resemblance to the Mini Cooper, an English brand owned by BMW. In fact, Lifan stopped commercializing the model back in 2014. Still, the ruling sets an important precedent for protecting industrial designs in Brazil under unfair competition law.

Argentina-The National Congress has passed the “Regime for the Promotion of the Knowledge Economy” Law 27.506 (here), replacing the “Regime for the Promotion of the Software Industry” Law 25.922. The new regime, like the previous one, seeks to stimulate national production in certain industries by granting fiscal benefits through the use of tax credit bonds as well as providing tax stability, so that the beneficiaries of the regime shall not increase their total tax burden, as determined at the time of their application and throughout the duration of the regime as defined in the article 7 of the law.

This means that once they are registered as beneficiaries, their taxes (including direct taxes as well as duties on imports and exports) will not be increased. However, the new law seeks to broaden the scope of covered goods and services so as to include software as a service (Saas), audiovisual productions, biotechnology, nanotechnology, the aerospace industry, and various types of industry 4.0- related technologies. The new law will enter into force on January 1, 2020, and remain in effect until December 31, 2029.

Brazil-The Brazilian Senate passed on May 22, 2019, bill 98/2019 enabling Brazil’s accession to the Madrid Protocol. INPI’s president, Cláudio Vilar Furtado, stated that—

Brazil's accession to the Madrid Protocol represents the opening of the ports of 120 countries and regions to Brazilian and Brazilian brands to those countries, which represent 80% of global trade.

With regard to these changes, INPI has announced public consultations, available until June 30, 2019 [Kat readers take note!] seeking suggestions and opinions on the bill (here).

Brazil-INPI has granted protection for the green coffee beans from Oeste da Bahia. The indication of origin was officially recognized in the Industrial Property Gazette No. 2523, dated May 14, 2019, (here). The application was filed in 2014 by the Association of Coffee-growers for Oeste da Bahia, covering the following municipalities: Formosa do Rio Preto, Santa Rita de Cássia, Riachão das Neves, Barreiras, Luís Eduardo Magalhães, São Desidério, Catolândia, Baianópolis, Correntina, Jaborandi, and Cocos.

Mexico-Mexican Secretary of Culture Alejandra Frausto is spearheading the government’s position against what has been characterized as cultural misappropriation by the firm Carolina Herrera. In an official letter (here) addressed to Carolina Herrera and Wes Gordon (currently the creative director of the fashion house), the Secretary states that the firm’s newest collection -- “RESORT 2020”, exploits several forms of traditional communitarian cultural expressions in Mexico (TCEs), by using them in some of the pieces from its new collection. She has requested an explanation for the unauthorized use and how the communities in which these cultural expressions were created will benefit.

In the letter, certain pieces from the fashion collection are designated as infringing specific Mexican cultural rights, such as garments 8 and 23, whose embroidery is typical of the community of Tenango de Doria; garments 11 and 13, embroideries from the Isthmus of Tehuantepec; and garments 14 and 16, which incorporate the “sarape del Saltillo” that derive from the north of Mexico among the Tlaxcala people. The creative director of Carolina Herrara responded that the collection is intended to pay homage to Mexican and other Latino cultures. Still, the Mexican president, Andrés Manuel López Obrador, advised on Tuesday, June 18, 2019, that the government will produce a full official report on the matter and contemplate its next steps(here).

Colombia-On May 2nd, 2019, the Colombian National Direction of Copyright (DNDA) ruled in favor of Microsoft Corporation against Imdicol Ltda., for copyright infringement over the unlicensed use of Windows 7 Professional, Windows 7 Ultimate, Office Professional Plus 2010, Office Professional Plus 2013, and Office Professional Plus 2016 (here). The ruling sets an important precedent regarding the force of the monitoring function of the DNDA, affirming that not only the author but any other rightholder in the work is entitled to claim infringement under article 1 of the recently approved Law 1915/2018, which amends article 10 of the Colombian Copyright Law (law 23/1982). The amendment establishes a rebuttable presumption in favor of the right-holder as long as its name/pseudonym appears linked to the communication of the work to the public, which Microsoft was able to prove.

Photo on right by Thelmadatter and is licensed under the Creative Commons Attribution-Share Alike International license.

Photo on left has been released into the public domain.