Can the Registry of a Work of Art Determine the Future of the Registration Application for a Figurative Brand?
By: Julián David Ruiz Rondan
The preliminary interpretation #320 from 2014 was recently published. In it, the Andean Community Court of Law (TJCAN) made a ruling about the viability of registering a figurative brand and its copyright protection.
The Superintendence of Industry and Commerce (SIC) was sued before the State Board for denying a registry of the figure of a girl cooking. This image was a figurative brand of the Organización Solarte & Cia. The application was denied because it was considered to be easily confused to the registries of the mixed brands La Muñeca, which is owned by Harinera Del Valle S.A.
The plaintiff, Organización Solarte & Cia. argued that there was no chance of confusing the brands and that, on top of that, that the SIC should have realized that the image of the girl cook can be found in the National Copyright Registry (Registro Nacional de Derecho de Autor.) Therefore, it should be taken into account to value the originality and uniqueness of this figurative brand, which was previously registered as a work of art.
The Andean Community Court of Law (TJCAN) explained that an intangible asset can be protected in various aspects of intellectual property law and that receiving copyright protection should not interfere in the analysis as to the viability of the registry of the brand. The analysis should be based upon, in each case, whether it complies with the uniqueness, perceptibility, and graphic representation requirements.
So the TJCAN concludes that an intangible asset could be protected by copyright law without necessarily implying that it fulfills all of the necessary criterion to be protected as a brand.
The complete text of the preliminary interpretation can be viewed here.
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