5 January 2012

Journey south

The blog journeys south this week as we leave Panama and enter Colombia and South America.

Colombia represents the strongest chance that the Madrid Protocol will advance into Latin America (aside from the existing membership of Cuba). However, for the time being a national filing is required.

National filings are required for the other countries of South America too. Brazil's growing stature on the international stage may make it next in line to join the Madrid Protocol, but this is a guessing game in this region. Every time there seems to be a new member on the horizon, nothing materialises. Brazil has problems with the backlog of its applications which it would need to address (and appears to be doing so albeit slowly) if they were not to operate a two-tiered "slow national system" and "faster Madrid system".

I would commentate that Madrid membership may have hit a bit of a standstill. I think Colombia will join the fray (although let's see), but South America has generally moved to the left politically and the influence the US has in the region has arguably waned. Lawyers in Latin America can also be close to the politicians and with a general fear of the Madrid Protocol diminishing their case loads, they will naturally use any influence they may have in this respect.

The most notable country being as far away from Madrid Protocol membership as possible is surely Venezuela. Having reverted back to an old Trade Mark Law from 1955 it is easy to see their local classification system and 15-year registration terms being incompatible with Madrid.

So national filings are required in the Spanish-speaking countries of the continent: Argentina, Bolivia, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay and Venezuela. The regional powerhouse, Portuguese-speaking, Brazil also requires a national application as does Dutch-speaking Suriname. English-speaking Guyana requires a local application although the option exists to base an application on a United Kingdom registration which can simplify registration and is the only way to register a service mark.

A UK registration is required for automatic protection to the Falkland Islands, based on local legislation from 1996, and to South Georgia and the South Sandwich Islands, based on an Ordinance from 2001. It is believed that as this covers trade marks "having effect in the United Kingdom" this would include Community Trade Marks.

A French or a CTM registration will provide protection to the overseas department of French Guiana.

The minimum number of filings for South American protection is therefore 13 including a Community Trade Mark. Strangely enough this is a larger number than is required for Europe.

This week is one of January sales so you will get two continents for the price of one as we continue southwards to Antarctica!

The continent of Antarctica has no trade mark legislation of its own per se. It can be expected that Argentinian, Australian, Chilean, French, New Zealand and Norwegian registrations should provide protection in the relevant claimed areas, although note the Argentinian and Chilean claims overlap with British claims. Theoretically, common law rights could exist in the British claimed section, but UK registrations have no effect in the British Antarctic Territory as far as we are aware as it would need specific legislation to be passed.

The various claims to Antarctica are not recognised by a number of countries, although Australia, France, New Zealand, Norway and the United Kingdom recognise each other claims. According to the Antarctic Treaty System, "Article 4 – The treaty does not recognize, dispute, nor establish territorial sovereignty claims; no new claims shall be asserted while the treaty is in force."

Antarctica normally hosts a non-permanent population of roughly 1000 people who we must imagine bring extremely warm clothing and non-perishable foodstuffs from their home countries. On the IP radar it is not.

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