EXP RTTODAY

YOLVME ELEYEN NVMBER TEN . OCTOBER 19 9~ $4.9~

SOUTH AMERICAINFRASTRUCTURE BOOM:

THE SECONO WAVE

NEW BRAZIL PATENT &TRADEMARK RULES

BEST ANDEAN MARKETS•ISO 14000: lHE

EFFICIENCY DlVIDEND•

ARAIIA HUIS

MOROCCO, TUNISIA,SAUDI ARABIA

•POCKET MARKETING TO

. THE NEW ASEAN CLASS•

HEDGlNG FOREX RISK•OCEAN TRANSPORTPRICE OUTLOOK WITHTHE NEW ALLlANCES

•CANADlAN CUSTOMS

•WORLD BANK OPENS

BIDDING AT $22 BILLlON•UI SITES

WHERE II THE KINGOOM?

Intelleetual Property in BrazilForeign finns are being pronzised much better protection for their

patents and lrademarks.

by Erica Aoki

Bra:il's.new indusu'ial ?r~pert:y law proposal\Villalign the cOlmtry's mtellectual propertylegislation much more dosel1' with internation-

al standards, plimarily by widening the defillition ofwhat call be patented and what can be registered as atrademark.

The new bill, expected to be approved b1' Congresswithin the next few months, also proposes adherellce tothe Paris Convelltion 011 Induso'ial Property, somethingthat was absellt before.

Trus legislatioll is a major departure from the COUll­try's previous i11teUectualproperty laws, which i111993lalldcd Brazil temporalily on the United States TradeRepresel1tative's "priority foreign country'" !istoAmongthe factors on wruch the USTR based its decision were

Brazil's term of protection for computer software, whichwas 25 years instead of the international norm of 50years. Also, Brazil had maintained market access barri­ers to copyrighted works, such as computer soft:ware.

Conditions should be much different under the new

law, however. For patellts, significant changes rrom theold law include:

• An inventor will be able to patent food and pha1'­maceutical products, as well as their maIIuiacuu'illgprocesses.

• In the biotechnolog1' field, microorganisms createdby a specific manufacturing process wiU be patentable.Living microorgmúsms nauu'aliy existing aI'e notpatentable - with the exception of microorgallisms usedexclusively Ín a specuic product manufacturing procesSo

• Any persol1 who in good faith seUsor uses an inven­tion in Brazil before a patem application has been filed,or before dIe priority date of a patellt, ",iU have the rightto continue selling or using dle Ínvention.

• A person whose invention is pirated aIId patemedb1' someone else can request that the pirated patem benuliified or dIat it be reassigned to the original inventor.

• When a patent OWllerabuses the exclusive rightsconferred to him or abuses economic power (such asthrough CaItel practice), compulsory licenses ",i11begranted after the expiration of a three-yeaI' term counted

58 EXPORT TOOAl

from the day the patent was granted.• A patent can be forfeited iil cases where a compul­

501'1'license is not sufficient to avoid abuse.• Industrial designs will no longer by patentable, bm

wiUbe subject to registration valid for ten yeaI's, COlmt­ed Eromthe filing date of application. Tlús peliod will herenewable for three successive, five-year periods.

• Patents for inventions will be granted for 20 year::and patents for utility models will be graIIted for 10yem"s,counting from the filing date.

• Patent app!icatiolls related to food, chemical andpharmaceutical inventions can date from the first for­eign correspollding application váth dle foUowingpro,-:­sions: that a patent has not yet been granted in dleCOlllltryof origin, that the object has not yet been inrrü­duced in Brazil by the patentee or someone else with d..,patentee's consent, and dIat third parties have not yeundertaken actual and serious preparatioll to seUor ~-:­the object in BraziJ.

For trademarks, the new law includes the foIIov.~major changes:

• The concepts of certification maI"ksand collecúwtrademarks have been estal)lished for dle first time.

• Marks that reproduce or imitate the chm·acteris':'.­or essential element of another party's maI·k 01'tradellaIlle wiUno longer be registerable. EXaIllples of t:hi:­category include civil naIlles or-signatures, family na.:::.:.:"701' patrony:rnics, personal images and weU-known p::c;':­donyms.

• Any person ",ho in good faith has been using atrademark fOI"identical or sinúlar products or senic ~"eidler tmder a prior application or merely by use. m~:;receive registration.

.' A trademark Dot used for five years ·\ViIIbe cor~~_­ered forfeit «ex-officio" UPODrequest.

• A trademark owner may request judicial as.si~'­ment of the trademm'k instead of the annuhnent oÍ ::...

registratioll.Et·iea Aoki, a Brazilian citizel1, ll"Ork.., ; ...

Washington offiees of lhe Minneapolis lt:.!~-. =

Dorse.l" & ti!:.:-.

DCTOSfEi :::'.::.::'