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  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Other key IP rights

Nature of right

Argentina

Industrial designs

Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

Exclusive rights on industrial models and designs result from registration of the relevant model or design.

Industrial designs

Industrial designs

Australia

Not applicable.

Austria

Not applicable for this jurisdiction.

Belgium

Not applicable for this jurisdiction.

Brazil

Not applicable for this jurisdiction.

Canada

Industrial designs

Protection for the aesthetic aspect of a functional object is available under the Industrial Designs Act.

Chile

Industrial designs

Industrial designs are all three-dimensional shape associated or not with colors, and any article industrial or craft that serves as a pattern for manufacture of other units and that is distinguished from its similar, by its shape, geometric configuration, ornamentation or a combination of these, provided that these characteristics give it a special appearance perceptible by sight, in such a way that result a new physiognomy.

Industrial drawings include any provision, set or combination of figures, lines or colors that develop in a plane for its incorporation into an industrial product for purposes of ornamentation and that they give, to that product, a new appearance.

Industrial drawings and designs shall be considered new to the extent that they differ significantly of known industrial drawings or designs or combinations of characteristics of industrial drawings or designs known.

China

Not applicable for this jurisdiction.

Colombia

Industrial designs

According to Resolution 486 an industrial design grants the right to exclusively exploit the appearance of a specific product without changing its purpose. In this regard, an industrial design makes the product more attractive to customers. For this reason, rights over an the industrial design protects the aesthetic features of the product and not its technical aspects. Any legal or natural person has the right to prevent any third-party from exploiting its design without prior consent.

The registry of industrial designs does not include:

  • industrial designs that are contrary to public order or morals
  • industrial designs that are related to technical features or technical functions, without entailing any arbitrary involvement of the designer and
  • if industrial design is the only manner in which the product may be mechanically pieced or connected

Czech Republic

Not applicable for this jurisdiction.

Denmark

Designs

The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation.

A design must fulfil the requirements of being "new" and having "individual character."

A design is "new" if no identical design has been made available to the public before the date of filing for registration or before the first launch of an unregistered design.

A design has "individual character" if the overall impression that the design produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public prior to the date of filing/or priority date for registered designs or prior to the date the design was made available to the public for unregistered designs. If the design application is filed less than 12 months after the design was first made available to the public, it is still considered new and deemed to have individual character.

Finland

Not applicable.

France

Registered designs

An industrial design is the ornamental or aesthetic aspect of an article. The design can consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or colours.

To be protected, an industrial design must be non-functional.

The design must not consist of features solely determined by the object's technical function. This means that an industrial design is primarily of an aesthetic nature and any technical features of the article to which it is applied are not protected.

In order to be able to register a design, the design must:

  • be new if no identical design is known to have existed before. Designs must be considered to be identical if their features differ only in immaterial details
  • have an "individual character" if the overall visual impression it produces on the informed observer differs from that produced by any design or model disclosed before the date of the filing of the application for registration or before the date of priority claimed.

Databases

A database is defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

Databases can be protected through copyright and/or a sui generis right.

Additionally, copyright protection may be awarded to the structure of a database if fulfilling the criteria for such copyright protection (fixation in a material form and originality).

Sui generis rights apply to the benefit of the database producer is there were qualitatively and/or quantitatively substantial investments, whether related to the collection, verification or presentation of the content of the database.

The sui generis protection lies on an economic vision and does not include moral rights.

Germany

Not applicable for this jurisdiction.

Hong Kong

Not applicable for this jurisdiction.

Hungary

Not applicable for this jurisdiction.

India

Not applicable for this jurisdiction.

Indonesia

Industrial design

An industrial design is a creation on the shape, configuration, or the composition of lines or colors, or lines and colors, or the combination thereof in a two or three dimensional form which gives an aesthetic impression and can be realized in a two or three dimensional pattern and used to produce a product, goods or an industrial commodity and a handy craft. Industrial design right is a government license to a designer for his or her creation for a given period to exploit his or her creation or to give permission to another party to do so.

Ireland

Designs

Design rights protect the appearance of a product which may include any industrial or handicraft item, including parts to be assembled into a complex product, packaging, get-up, graphic symbols and typographical type faces. Computer programs cannot be subject to design right protection.

A design must have a new and individual character in order to qualify for protection.

The registered proprietor of a design right has the exclusive right to use or authorise others to use the design including the rights of making, offering, putting on the market, importing, exporting or use of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

Infringement of a unregistered design right can only arise where there is intentional copying of the protected design.

Israel

Designs

The Designs Law grants protection to registered and unregistered designs. A design is eligible for registration if it is novel and unique (creates a different general impression among informed users in comparison with existing designs/products of any kind and of the same kind). An unregistered design which is eligible for registration is entitled to partial protection, mainly with regard to commercial manufacturing.

Italy

Not applicable.

Japan

Not applicable for this jurisdiction.

Luxembourg

Not applicable for this jurisdiction.

Mexico

Not applicable.

Netherlands

Not applicable for this jurisdiction.

New Zealand

Passing off

The common law tort of passing off generally concerns the false or misleading representation that another trader's goods or services are, or are connected with, those of the plaintiff. The tort can also include misrepresentations as to quality and authority or endorsements.

The misrepresentation can be an express statement, but often arises from the defendant's use of a mark, trade name or "get-up" with which the goods or services the plaintiff are commonly associated, in the minds of the relevant customers or other traders.

There must be damage, to the plaintiff's business or goodwill or likely damage if the conduct continues.

Designs

Designs are a registered right governed by the Designs Act 1953. A design is defined as the new or original features of shape, configuration, pattern or ornament applied to an article by any industrial process or means. However, this cannot be a solely functional element. The design must not be published prior to the filing date.

Design rights owners have the exclusive right in New Zealand to make or import for sale or for use for the purposes of trade, or to sell, hire or offer for sale, an article in respect of which the design is registered. Design rights can be assigned and licensed. In some cases a compulsory license in respect of a registered design can be granted by the Commissioner or a court.

Norway

Design

A design is defined as the looks or part of a product that is characterized by its lines, contours, colors, form, structure or material to the product or its decoration. The design has to be "new" and have "individual character" in order to be able to be protected.

The designer can protect his exclusive right to the design through registration with the Norwegian Industrial Property Office. Registration of a design does not however limit the design's protection under other law, such as trademark, copyright or patent law.

Poland

Industrial design is the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation. An industrial design will be granted protection if it is new and has an individual character.

In Poland, there are 3 regimes of registered industrial designs:

  • National industrial designs (registered by the Polish Patent Office)
  • International industrial designs (registered through the World Intellectual Property Organization and approved by the Polish Patent Office)
  • Community designs (registered through the EU Intellectual Property Office)

In Poland, a person seeking protection of his or her design does not have to register the design through any office. This person may benefit from an unregistered community design right that lasts for three years from the date on which the design was first made available to the public within the community. Furthermore, an industrial design may be protected as a copyrighted work under the rules established in the Act on Copyrights and Related Rights (provided it meets the requirements described in the definition of a work). Additionally, the appearance of a product may be protected under unfair competition law (Act on Combating Unfair Competition) against its copying by industrial means, if such copying causes the likelihood of confusion.

The right of registration to an industrial design gives its owner the exclusive right to use the design in a commercial and professional way in Poland (or in the EU, in the case of registered community designs). The holder of the right to a registered industrial design may prohibit any third party from manufacturing, using, offering, marketing or importing and exporting and stocking for these purposes, products whose appearance does not produce on the informed user a different overall impression.

Portugal

Logo

A logo is a sign (or a combination of signs) capable of being represented graphically, in particular by word or figurative elements or by a combination of both, or a sign (or a combination of signs) which may be represented in a manner which enables to determine the clear and precise subject matter of the protection afforded to its proprietor, provided that such signs are capable of distinguishing an entity.

The registered logo confers to the owner, the right to prevent third parties not having his or her consent, from using any identical or confusing sign which is designed to identify an identical or similar activity and where, because of its similarity, there is a likelihood of confusion or association on the part of the public.

Romania

Industrial designs

Industrial design holders are protected against infringement. The term industrial design is defined as the appearance of a product or a two or three dimensional part of it resulting from the combination of the main features (especially lines, contours, colors, shape, texture and/or ornamentation of the product itself).

Russia

Not applicable.

Saudi Arabia

Not applicable.

Singapore

Not applicable for this jurisdiction.

Slovak Republic

Utility models

Utility models shall mean a protection of new technical solutions that have been created through inventive activity in any field of technology. A technical solution is capable of being protected as an utility model if it is new, if it is a result of inventive activity and if it is industrially usable. Certain objects are not capable of being protected as utility models, such as:

  • discoveries, scientific theories and mathematical methods
  • aesthetic creations
  • plans, rules and methods of performing intellectual activity, games or business activity
  • computer programs
  • pure statement of information

Designs

Designs shall mean an external layout of a product or its part that consists of elements which are, predominantly, lines, contours, colors, shapes, structures or materials of the particular product or its decoration. A product shall mean any material thing made in an industrial or crafted way, together with package, layout, graphical symbols, topographical symbols or parts that are intended to be used for compilation of a composite product, apart from computer programs.

A design shall be capable of being protected if it is new and if it possesses a distinctive character.

South Korea

Not applicable for this jurisdiction.

Spain

Not applicable.

Sweden

Not applicable.

Switzerland

Not applicable for this jurisdiction.

Taiwan

Not applicable for this jurisdiction.

Ukraine

Patents to industrial designs

Designs in Ukraine are protected by patents. The patents to industrial designs protect the results of creative activity of an individual in the area of industrial designing. For industrial designs, Ukrainian laws contain the patentability requirement of novelty.

The rights to designs are subject to registration with the Ukrainian IP office in order to be protected in Ukraine. The owner to industrial design patent has the exclusive right to prohibit the third parties from producing the products based on the registered industrial design.

United Arab Emirates

Not applicable.

United Kingdom

Passing off

The tort (or delict in Scotland) of passing off relates to misrepresentations made by one trader that damages or may damage the goodwill of another. It can be used to protect unregistered business and product names, logos and "get-up."

The "classic form" of passing off is generally defined by reference to three requirements:

  • Goodwill  in the UK attached to goods or services
  • A misrepresentation by the defendant to the public (intentional or not) leading the public to believe its goods or services are those of (or connected with) the plaintiff
  • The plaintiff suffers or likely to suffer damage due to that misrepresentation

However, the misrepresentation may be as to other matters, such as:

  • That the plaintiff's goods are those of the defendant (reverse passing off)
  • Misrepresentations as to quality
  • False endorsement

The misrepresentation must be one which confuses or deceives the public or is likely to. Goodwill has been described as the "benefit and advantage of a good name or reputation..." or the "attractive force that brings in customers." Goodwill can be limited to certain areas/geographic locations.

An extended form of passing off requires:

  • A misrepresentation
  • Made by a trader in the course of trade
  • To prospective customers or ultimate consumers
  • Which is calculated to injure the business or goodwill of another, ie, such injury must be reasonably foreseeable
  • Which causes actual damage to a business or goodwill

Designs

There are four types of design rights in the UK: registered and unregistered UK design rights, and registered and unregistered European Community design rights.

A registered design and a Community unregistered design can be the whole or part of a product resulting from features of lines, contours, colors, shape, texture or materials of a product or its ornamentation. This can include packaging, get up, graphics and typefaces parts of products, icons, maps, web design etc.

Registered designs and Community unregistered designs must be new (not previously disclosed or available to the public anywhere in the world) and have individual character (creating a different overall impression on the "informed user" taking into account design freedom). There are exceptions to this and features dictated by function (must fit and must match exceptions) cannot be protected.

To obtain registered design right protection, it is necessary to register either with the UK Intellectual Property Office (UKIPO) or EUIPO (for a Community registration). The UK is a "first to file" system, although a registration may be refused or revoked if it conflicts with prior rights. Unregistered design rights arise automatically.

The proprietor of the design may prevent any use of the design or any design which does not produce a different overall impression on the informed user (taking into account design freedom). To infringe unregistered Community design right the defendant must have copied the design. Copying is not a requirement to infringe registered design rights.

The regime for subsistence and infringement of UK unregistered design right is different. The right subsists in the shape or configuration of the whole or part of an article that is original and not commonplace, recorded in a design document or the subject of an article made to the design and created by a qualifying person. A key difference is that UK unregistered design right does not protect surface decoration. The UK unregistered design right does not protect methods or principles of construction and is subject to an exception for use in relation to products which must fit or must match the protected design.

United States

Not applicable for this jurisdiction.