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Amendments to Trademark Laws

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Sep 09, 2021 (Newsletter Issue 14/21)
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New Intellectual Property Law Published

On July 5, 2021, the Chilean Official Gazette published the new Intellectual Property Law, recently approved, which modifies the current 1991 regulations. The purpose of the new Law is to allow better protection and enforcement of IP rights, establish more efficient registration procedures, and facilitate the processes to obtain these rights. The publication marks the beginning of the countdown -approximately six months- for the entry into force of this long-awaited regulation.

Concerning trademarks, the new regulations introduce the following changes:

- The definition of trademarks is modified to protect distinctive non-traditional signs such as olfactory, 3-D, tactile, positional, and hologram trademarks.
- Commercial and industrial establishments can not get registered as trademarks any longer. Existing marks of this kind shall be renewed as service marks in classes 35 and 40 to keep the rights acquired by the holders of such registrations.
- The trademark owner is required to make actual and effective use of its sign in the market. The revocation may only be requested by whoever has a legitimate interest and may not be declared ex officio.
- The regulations for collective and certification marks are aligned to international standards.
- Trademark renewals may be requested six months before the end of the term and up to six months after. Renewal fees are due for payment with the renewal application. Renewals requested after the registration’s expiration will be subject to a surcharge of 20% for each month or a fraction of a month.
- Specific legitimate uses of another’s trademark are allowed for names or pseudonyms and generics.
- The offense of trademark counterfeiting is typified and penalized with a prison sentence (currently, there is only a fine for the benefit of the Public Prosecutor).
- The law established a compensation system with pre-established indemnities for trademark infringement.

There are also significant changes for patents, designs, trade secrets, and geographical indications. For example, the new law introduces patent fee amendments, more straightforward registration procedures, and an extension of protection for industrial designs. Moreover, a definition of „trade secret“ is established in line with the standard set by the TRIPS (Agreement on Trade-Related Intellectual Property Rights). The regulations on geographical indications and appellations of origin are amended to add grounds for non-registrability and incorporate the possibility of requesting their cancellation when the product is no longer produced in the protected area.

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