ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
mark, perceive the goods or services in question as coming from a particular source. To demonstrate that a trade mark has acquired distinctiveness, the appli - cant must present evidence, such as: • ownership of one or more earlier registrations of the same trade mark; • duration of use of the brand in the market; • advertising expenses; • survey evidence, market research, consumer feed - back studies; • statements by merchants and consumers indicat - ing recognition of the trade mark applied for as a trade mark; and • other miscellaneous factors, especially evidence demonstrating consumer recognition of the trade mark applied for as a mark for the applicant’s goods. 2.3 Trade Mark Rights The trade mark registration grants the owners the exclusive use of said registration. It also authorises the exercise of all necessary defences to prevent third parties, without authorisation, from marketing identi - cal products or services with the same trade mark or using a name so similar that it may create confusion. These rights are exclusive to the owner; however they are liable to be lost if the trade mark has not been used since the fifth year of registration, by the third party requesting the cancellation of the trade mark on the In order to maintain the registration of a trade mark, an affidavit must be filed stating that the trade mark has been used; there is no need to attach proof of such use. On the other hand, if a trade mark faces an action for revocation for lack of use, it is necessary to provide evidence to the contrary. basis of the lack of use. 2.4 Use in Commerce This use must be real, public, consistent and pro - longed in the country, even for goods/services other than those distinguished in the trade mark registra - tion, as long as they are related.
Evidence such as links, photographs, publications, packages, labels, advertisements, invoices are admit - ted in order to demonstrate the use of the trade mark. 2.5 Notices and Symbols The trade mark ® symbol is only used if the trade mark has been granted. Its improper use may lead to legal sanctions. In Argentina, symbols such as TM and SM are also often used for trade marks that are not yet registered. Including these symbols in the application for trade mark registrations is not mandatory, since their use is optional. 2.6 Related Rights There are certain trade marks that can be protected under other legal systems such as copyright and/ or industrial designs, eg, logos, cartoons or titles of works/series/films. Surnames can only obtain trade mark and copyright protection by the physical person or with their consent. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works The following can be protected with copyright: liter - ary works, musical works, choreography, graphic or sculptural works, architectural works, computer pro - grams, databases, plastic works, multimedia works and scientific works, as established by Copyright Law No 11.723. 3.2 Essential Elements of Copyright Protection The basic requirements to obtain copyright protection are novelty, authorship and originality. 3.3 Copyright Authorship The author is the person who creates the work, as well as their collaborators. If the work is created on com - mission, several issues must be taken into account. For example, if the person hired to create a work does so using all the tools offered by the employer, the authorship will be attributed to the employer. How -
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