ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
1. Trade Mark and Copyright Law 1.1 Governing Law Trade marks are governed by Law No 22.362 and copyright is governed by Law No 11.723. In Argentina there is no common law. 1.2 Conventions and Treaties/Rights of Foreign IP Holders Argentina has ratified of the following treaties: • the Paris Convention (Law No 17.011); • the TRIPS Agreement (Law No 24.425); and 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks Argentina’s legal system provides for the protection of collective marks; certification marks, denomina - tion of origin, indication of origin and geographical indications; emblems, as well as well-known trade marks. The Argentine Trade Mark Law sets out in Article 1: “The following can be registered as trade marks to distinguish products and services: one or more words with or without conceptual content; draw - ings; emblems; monograms; engravings; prints; the stamps; the images; the bands; the colour combina - tions applied to a particular place on the products or packaging; the wrappings; packaging; the combina - tions of letters and numbers; the letters and numbers for their special drawing; advertising phrases; reliefs with distinctive capacity and any other sign with such capacity.” Brands can be traditional or non-traditional. Tradi - tional marks include wordmarks, labels and figurative marks. Non-traditional marks that can obtain protec - tion include three-dimensional marks, combinations of colours, position marks, sounds marks, olfactory, tactile marks, gustatory marks, movement marks, multimedia marks (movement and sound), holograms, trade dress as well as the shapes of buildings. • the Berne Convention (Law No 25.140). All of these treaties are self-executing.
Proper names, pseudonyms and portraits may be reg - istered as trade marks only by the physical person concerned or with their consent or that of their heirs up to and including the fourth degree. A collective mark is a common distinctive sign that identifies products and services provided by enter - prises aimed at the development of the social econ - omy. This type of trade mark is governed by Law No 26.355. Law No 25.380 provides for the protection of geo - graphical names, regulating two categories: Geo - graphical Indication and Denomination of Origin. Foreign appellations of origin are not registrable as trade marks. The designation of origin is understood as the name of a country, a region, a place or a specific geographical area that serves to designate a product originating there and whose qualities and character - istics are due exclusively to the geographical environ - ment. An appellation of origin is also considered to refer, for certain products, to a specific geographical area. Emblems, on the other hand, may be registered as trade marks. However, the registration of trade marks, as well as elements thereof, consisting of coats of arms, flags and other state emblems of the countries of the Union, official signs and hallmarks of control and guarantee adopted by the member states of the Paris Convention is prohibited. Argentina is a member of the Paris Convention and the TRIPS Agreements, which both grant protection to well-known trade marks. 2.2 Essential Elements of Trade Mark Protection Trade marks must have distinctive character to be registrable. The distinctive character of a brand can be established through the logo, typography, colours, and name, among other features. Acquired distinctiveness is a process that requires time and effort. To determine whether a trade mark has acquired a secondary meaning, it must be dem - onstrated that consumers, upon seeing the trade
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