Significant IP developments and trends in Chile
Chile’s intellectual property legislation and administration have advanced to a high professional level in the last decade. Decisions and policies in compliance with the TRIPS Agreement’s commitments, as well as the numerous discussions Chile has conducted in the context of new free trade agreements, have undoubtedly resulted in a significant overhaul of the country’s intellectual property system in every way.
This can be seen in legislative amendments, administrative reinforcement and improvement, the inclusion of customs officials in the fight against counterfeiting, and the development of special branches of the national police to deal with counterfeiting. These policies have undoubtedly contributed to a greater understanding of intellectual property and its importance for growth and commerce at the national level, as well as a broader public debate on the most important intellectual property issues.
Two major facts about the development of intellectual property administration are worth mentioning.
In March 2009, Chile signed the PCT. The General Assembly of the Treaty of Geneva appointed the Chilean Patent and Trademark Office as the International Searching Authority for Patents and the International Preliminary Examining Authority for Patents on October 4, 2012.
When Chile signed the Budapest Treaty for the Protection of Microorganisms, the operative unit of the Ministry of Agriculture in charge of the Chilean Collection of Microbial Genetic Resources was given the designation of IDA, making it the first in Latin America to be given this authority.
The two factors mentioned above have and continue to contribute to the improvement of the country’s administration as well as the overall environment for intellectual property protection.
Finally, as previously stated, Chile has agreed to a number of PPH protocols in order to speed up the evaluation of patent applications.
Perspectives and trends
Chilean intellectual property law is currently being amended. The administration submitted a new comprehensive draft Law on Industrial Property to Congress on April 26, 2013, encompassing every area of the law and adding several totally new issues. The initial debate on this new draft took place primarily in 2014 and 2015, however, the completion date is yet undetermined. In recent years, there has been almost little discussion of the draft law, and it is still awaiting the official start of its comprehensive study in Congress.
However, in 2018, the government decided to prepare a partially revised interpretation of certain articles in an attempt to revise at least certain key aspects of intellectual property legislation that were in urgent need of revision. This updated draft was submitted to Congress on September 20, 2018, and it is predicted that Congress will begin debating it within the following two years.
It is a lengthy document that includes both substantive and administrative provisions. In the context of the general substantive reform of the legislation, we identify the clauses that are likely to be most relevant in brief:
- the elimination of the special trademark classes of industrial establishment and commercial establishment that Chile had included since its very first Trademark Laws;
- (at long last) provisions for the protection of three-dimensional trademarks;
- better provisions on collective marks and certification marks;
- the mandatory use of registered trademarks, with failure to use in five years resulting in cancellation;
- provision for the restoration of priority in the field of patents;
- the establishment of provisional patents;
- limitation of the supplementary protection of patents to five years as a maximum; and
- improvements in the protection of trade secrets.
The debate over this new document should be closely monitored, as the position of Congress on several issues will reveal what to expect when the main change of the intellectual property system is discussed.
