ON THE INTELLECTUAL PROPERTY
Intellectual property is a legal discipline that is composed of two main branches:
1) .- Copyright (Business Secret S. E. ) (c) (Intellectual Property; property literary, artistic, and scientific); it is the moral right or respect, and the economic right or pecuniary; this is, is only a right to two demonstrations.
2) .- Industrial Property.-
A) .- New or innovative creations:
a) .- Patents
b) .- Industrial Designs
b1) .- Industrial Drawings
b2) .- Industrial Models c) .- Utility Models
d) .- invention certificates
B) .- distinctive signs
a) .- Marks
b) .- Trade Names
b1) .- Sub - type of trade name is the teaches commercial.- this is a trade name figurative and must be three-dimensional.
c) .- Commercial Announcements
d) .- Designations of Origin
C) .- Repression of the Unfair Competition ( Business Secret S. E. )
D) .- Industrial Secrets (S. I. )
Brands: These are signs that serve to distinguish goods, services and products of other goods, services and products of other that provides a competitor, to the extent that these signs to identify goods become part of the intangible assets of the company.
Trade names: These are signs that serve to distinguish negotiations, commercial establishments and industrial service of others with the same swing or a similar spin. (example: factory, shop, etc. ).
The commercial note: It is a sign used to advertise a product, a service or an establishment business or industry.
Designations of Origin: They are geographical names that correspond to a place, or population where it comes from a product designated with the geographical name and whose characteristics of the product are due to geographical factors and the characteristics of the product are due to geographical factors including natural factors such as climate, the raw material, and as human labor, and must be applied to a product whose characteristics are due to the geographical environment (Tequila). In the appellations of origin there is the national regime and the International Regime (Lisbon Agreement for the protection of appellations of origin).
A. - NEW CREATIONS:
Patents: These are official certificates that allow an inventor or its cause voters, exploit of an exclusive mode an invention for a certain period of time always and when requirements are met or conditions for patentability.
The legal doctrine distinguishes two types of 2 conditions:
1.- Positive conditions for patentability.
2.- Negative conditions for patentability.
Patents protect inventions.
Requirements for obtaining a patent:
1.- Presence of a invention
3.- Industrial Application
4.- Inventive step
Industrial drawings: These are combinations of lines, strokes and colors and are protected through a register and a picture of model.
Industrial Models: They are dimensional plastic forms that, when applied with an industrial product give you your own and peculiar aspect.
Industrial designs are distinguished by their application.
Utility models: These are creations that are consistent in artifacts, apparatus, or tools that have been implemented a variant or modification of which is an advantage, profit, or competitive level.
The invention certificates: It is a figure of Soviet origin incorporated through the act of Lenin in 1919.
Suppression of the unfair competition: It is a complement to the protection of industrial property. (Business Secret S. E.), the rule is when that predominates in the exercise of jurisdiction is incurred in acts against good practices and good habits.
In Mexico has two manifestations, the economic or pecuniary and the moral.
1.- The economic right or pecuniary.- The economic right continues until his death more than 75 years after what happened, by the manifestation to exploit the work and share the right, and it is statutory, disputable, waivable, you can exploit, reproduce, etc. , and allows the author pursue their unauthorized exploitation of the work.
The Federal Law on Copyright, enables us to prosecute unauthorized manufacture.
The Federal Law on Copyright, enables us to prosecute unauthorized commercialization of the work.
2.- The moral right: It is the recognition of the authorship of the work, is perpetual, is inalienable, essential, indispensable, garnished, of respect, as set forth in article 2 º, Federal Law on Copyright.
The only moral right is exercised by the author of the work, you are entitled to the legal possibility to oppose alterations, modifications or any act on the work without your consent or that go against their reputation or prestige, and yet the author if you can make changes.
Definition of originality.- The work owes its origin to the author.
The record of the work before an administrative authority is not prerequisite to the exercise of rights, that is to say, your registration is not establishing.
The record of the work assumes certain the facts of the record, that supports evidence to the contrary.
Copyright law protects the works of art as provided in article 7 º, Federal Law on Copyright.
Computer programs are identified as a literary work, because it uses a language that has signs and meaning, reformed by the Berne Convention. The conciliation proceedings in the field of copyright are still flocking to the Directorate General of Copyright, requesting is cited the counterpart to an audience of compromise, and if there is no arrangement in this board, it is not necessary or pre-litigate, litigate, and most feasible to sue in a civil lawsuit, being Federal when demand the cancellation of the registration of the work, or judgment of invalidity of the administrative act, and/or criminal complaint.
The conflict exists when there is a claim and the other party is reluctant to that claim.
For sue civilly or denounce the crime, it is necessary to exhaust the administrative procedure.
The copyright infringement is a criminal offense known as invasion of copyright.
Repair of the damage on the 40% of the sale to the public.
Rights of the owner of the copyright
It has the right to share this right with someone else, cede, resign in favor of a third party, with the requirement that you must register this assignment in the Directorate General of Copyright, and this assignment I could be a physical or moral persons national or foreign.
Copy Right = copyright is its symbol, (c) and must be recorded as an example as well (c) 1990 John Doe (legend of publication).
Works protected by the law must hold the letter c in a circle (c) D. R. Rights Reserved name of the copyright.- The home of the copyright owner and the year of the first publication ahem: D. R. (c) Jorge Barrera Graff.- #9 Xitle Pedregal de San Angel.- Mexico, D. F. 01900.- 1957.
New creations: Patents, Utility models, industrial designs; industrial designs; certificates of invention.
Article 28 Constitutional ninth paragraph, refers the temporary monopoly of exploitation.
The Patent Law promotes the scientific and technological, more than anything else the technological production.
First Thesis.- Thesis of Natural Law.- right of property of the author of the product or idea.
Second thesis - Thesis of monopoly and the reward.- temporary monopoly of holding up to 20 years.
Third Thesis.- thesis of the profit incentive.- Incentive to researchers, have the right to the temporary monopoly of holding up to 20 years.
Fourth Thesis.- thesis of the Social Contract or the Exchange of Secret.- The patent system eliminates the secret, encourages the inventiveness and disseminates the ideas.
CONDITIONS FOR PATENTABILITY
1.- negative.- are represented by the need for the invention is not listed in an enumeration of inventions for which the legislator has prevented the patent protection.
All the inventions listed have not patentable as a common denominator the living matter (Genetic Engineering); (Human Genome Project developed by the United States).
2.- positive.- represented by the presence of an invention; the novelty; the requirement that the invention is susceptible of industrial application; and that is the result of an inventive step.
The invention: It is the result reached by the author, is a creation; the invention should not exist in nature and must be capable of industrial application.
Discovery.- The novelty is the raison d'être of the patent, if there is no novelty there is no patent.
Priority Date is the date on which it is practiced the first deposit or patent application to protect an invention by any country that was in the Paris Convention and serves for calculating the period of 12 months to submit requests to the other countries.
OBLIGATIONS OF THE OWNER OF THE PATENT
a) .- Pay dues every 5 years according to the Official Journal of the Federation by the patent granting d.
b) .- exploit the patent within a period of 3 years from the date of the grant or 4 years from the date of the request, if you do not do so is punishable by revocation by lack of exploitation.
c) .- include an indication of patented invention in the product.
Causes of the loses the validity of the patent to
a) .- Expiration
b) .- For lack of payment
c) .- Lack of exploitation
d) .- Nullity
e) .- natural death of the patent (20 years)
Procedure for the registration of a patent: The Mexican Institute of Industrial Property (I. M.P. I. ), is the administrative authority in which the request is submitted and starts this administrative procedures to obtain the title of the patent. (of course it is located at the corresponding office, this is in the trademark office or the patent office ).
Designs: These are the applied art.
Industrial designs: Combination of lines, strokes, colors etc.
Industrial models: Must be innovative and susceptible for industrial exploitation.
Novelty: In the field of industrial design means the result of an independent creation.
Theory of the art unit.- POULLET.
The protection of designs going on for fifteen years and after that goes into the public domain
. Utility models: Must be innovative and capable of industrial application, their protection lasts ten years and later passed into the public domain.
The industrial secrets: Have the option to be protected as secret or as 'invention patentable and in the case of industrial secrets their protection is indefinite that is to say until they cease to be secret; the industrial secrets belong to a branch of business secrets and trade secrets.
Offenses of origin:
I. - Recidivism
II.- Counterfeiting with malice or bad faith.
III. - Violation of industrial secrets (revelation without authorization)
IV.- Violation of industrial secrets (seizure)
V. - Violation of industrial secrets (the abuse of the information).
In these last three cases should be given two additional elements
1.- Without consent
2.- That there is a order to benefit financially, or in order to cause an injury. If you do not give these two elements there is no crime, which is suit as requirements for admissibility.
Brands are understood by any visible sign that distinguishes products or services of others in your same class or kind in the market.
Signs that may constitute a trade mark.
1.- The names or visible figures, sufficiently distinctive, susceptible to identify the products or services to which they apply or seek to apply, compared to those of their own species or class;
2.- The three-dimensional shape;
3.- The trade names and designations or social reasons, which are not covered by article 90 of the L. F. P. I. , and
4.- The name of a person own physical always that not to be confused with a trademark or trade name published.
The marks are used to distinguish goods, products or services of others.
The use of trademark law arises with the use of the product or service, in our system there is no use if there is no mark.
In Mexico are protected trademarks, not symbols, not the ideas, not the signs.
If there is no brand, there is no registration; registration is a constitutional right, and the first one to do it has the right to register.
In Mexico the registration is necessary in order to have brand rights, although it is said that the trademark system in Mexican is combined because the rights can be exercised from the moment that the mark is used.
Branding types: Classified in:
1.- Nominative brands: These are wording brands, the sound is protected as it is said, not how the word looks.
2.- Figurative brands (graphic): In this type of branding the word and the sound does not count, they are represented by a symbol, this is how it looks, it is widely used in countries where there is a broad degree of illiteracy.
3.- Mixed brands: This is represented by nominative and figurative signs, this is not a combination of brands but a brand named with features and figures.
In response to the activities of its owner the brands can be classified into:
1.- Industrial or manufacturing brands: Are those used by the industry or factory and that are applied to the product or commodity.
2.- Commercial brands: Are those used by the trader who puts the brand on to the product.
Attributes or conditions that must be met by the signs: The signs must comply with a series of requirements, attributes or conditions to be the object of protection.
Features that justify the protection of trademarks:
1.- Distinctive functions
2.- Indicator function of the origin and the source.
3.- Function indicator of the quality.
4.- Protection function in its double aspect
a) .- Protects the interests of the owner of the mark and
b) .- It protects the interests of the consumer.
5.- Advertisement functions It is sufficient that the sign is present to publicize.
There are pre-sold articles, this is when the article or product contains a brand.
In order for the brands tp comply with these features, you must have a series of attributes or characteristics that the doctrine broadly classified into two forms
1.- Essential attributes or validity.
2.- Secondary attributes.
Essential or validity attributes.
1.- The distinctiveness.
2.- Permissibility of the brand, in a double sense.
a) .- In response to the configuration of the sign intrinsic
b) .- Taking into account the characteristics of the sign face with marks of third parties that did not offend the moral.
The sign must be novel and has as an attribute the specialty that is to say, the mark is distinctive product and there is one exception this attribute that to greater visibility and greater flexibility.
There is a thesis about the visibility in the sense that the facts you can invoke the notorious Judge although it is not cited by the parties.
Regulations of the visibility: It regulates with:
1.- The three free trade agreements between Mexico and Latin America.
a) .- Andean Pact, of Mexico with Colombia, Venezuela, Bolivia, Ecuador and Peru.
b) .- Central American Protocol on Industrial Property of Mexico with Costa Rica, El Salvador Guatemala, and Nicaragua.
c) .- Mercosur Mexico with Argentina, Uruguay, Paraguay and Brazil.
2.- In the community trade mark of the European Economic Community.
3.- Paris Convention.
4.- N. A. F. T. A. or T. L. C.
5.- T. R. I. P.S.
The visibility.- is a source of independent right to use and registration.
In T. R. I. P. S it is said that a mark will be obvious in response to the knowledge that it exists in the country where protection is claimed.
Visibility always goes around the specialty that is all that would govern the other exceptions.
Secondary attributes. It is so called because of its absence or presence in the sign does not depend on the existence of the sign, on the other hand in the case of mark are essential requirements for which can be the brand that has to be distinctive, special, innovative, and licit with sign without falsehood.
The brands that are in the assumptions of article 90 shall not be considered brands and consequently not be registrable.
The free trade mark is registered as a trademark.
1.- Optional character: In Mexico there is no obligation to use marks or registers the brand therefore has optional character
2.- The adhesion: The brand is affixed to the product but it is not required.
The use of the brand as in advertising, or verbal mentions is necessary for the acquisition, preservation, and persecution of rights.
3.- The Appearance: The sign is usually apparent although it is not necessary as it is apparent to be considered a brand.
The hidden brand does exist and it exists for example in the cork of the wine bottles, or in the bars of soap.
4.- The individuality: Quality control is a way to establish the individuality of the product.
Article 90 L. F. P. I. In this article we can find the following attributes.
Rules to avoid the confusion of brands:
1.- The marks must be analyzed as a whole on the distinctiveness
2.- The similarity must be noted, not difference.
3.- Products must be analyzed in sequential fashion and not simultaneously.
The confusion of two signs can occur in several ways:
1.- According to the pronunciation of the words of the product ( phonetics ).
2.- According to how they look ( chart ).
3.- Or through an ideological confusion.
Degrees of confusion:
1.- Identical brand name
2.- Similar brands in degree of confusion
3.- Almost identical brands
Rights of the owner of the trademark: It has the right to the brand, to exclusive use of the brand, you can challenge, attack to those third parties who are using their brand, has the right to grant licenses and may be free or onerous, the license can be exclusive where the owner of the mark undertakes not to provide more licenses or to use the trademark, it may yield in property (must register such assignments rights or licenses granted), has the right to initiate the procedure of annulment with third parties, has the obligation to use the trademark, the obligation to maintain the quality of the brand, the obligation to make its product M. R. or (R), the rights end up not making use of the mark.
Trade Name: It is a sign that distinguishes establishments or negotiations and it is advisable to publish the name of the trade, and the effect of the publication lasts 10 years.
Commercial ads: Commercial is considered notice to the phrases or sentences that have as their object announce to the public establishments or negotiations commercial, industrial or service, products or services, to distinguish them from others of its species.
Designation of Origin: It is the name of a geographical region of the country which serves to designate a product originating from the same, and the quality and characteristics of which are due only to the geographical environment, understanding this natural and human factors.
ON THE INTELLECTUAL PROPERTY