Within a general context, there is an incorrect appreciation of what is understood by Patent and what is understood by Trademark. It is from there that the idea arises that a trademark can be patented. In order to refute this assertion, it is necessary to clearly define the concepts of what is a Trademark and what is a Patent. To get into the subject, we must first of all know in what field both the Trademark and the Patent are included. It should be noted that both are figures or concepts that are included in the field of Intellectual Property, which in turn is immersed or is a division. can patent a trademark. Para desvirtuar esa aseveración. es necesario exponer definir claramente conceptos de lo que es una Marca y que es una Patente. Para entrar en materia, primero debemos ubicarnos en sentido de saber en qué campo están incluidas, tanto la Marca como la Patente. Téngase en cuenta que ambas son figuras o conceptos que están incluidas en el campo de la Propiedad Intelectual, la que a su vez está en inmersa o es una división.
Es así que al referirnos y definir lo que se entiende por marca, lo haremos utilizando e concepto que trademark is any sign that serves to differentiate a product or service from those products and services of competitors.. The sign to be registered must be, according to law, perceptible and susceptible of graphic representation. In this regard, I consider it convenient, for greater precision, to transcribe the provisions of Decision 486 in its article 134, which reads as follows: FOR THE PURPOSES OF THIS REGIME, ANY SIGN CAPABLE OF DISTINGUISHING PRODUCTS OR SERVICES IN THE MARKET SHALL CONSTITUTE A TRADEMARK. SIGNS SUSCEPTIBLE OF GRAPHIC REPRESENTATION MAY BE REGISTERED AS TRADEMARKS, THE NATURE OF THE PRODUCT OR SERVICE TO WHICH A TRADEMARK IS TO BE APPLIED SHALL IN NO CASE BE AN OBSTACLE TO ITS REGISTRATION.
Following the same rule, we will say that it can constitute a trademark:
- Words or word combinations.
- The images depict symbols, graphics, logos, monograms, labels, emblems and coats of arms.
- Sounds and smells.
- Letters and numbers.
- A color determined by a shape or a combination of colors.
- The shape of the products, their packaging or wrapping.
- Any combination of the signs or means indicated in the preceding paragraphs.
In order to get the sign that the company or individual wants to register, it must first carry out a background search, in order to determine whether the sign is distinguishable or not in the market, and if there are no similar signs with which it can be confused. Once the procedure is completed, the holder enjoys an exclusive right to use the sign for a period of 10 years. At the end of this period, if the owner wishes to maintain his rights over the trademark, he must renew it for a period of 10 years, as well. Please note that, if this registration is not renewed, the trademark will become invalid. expiration.
In addition to being an identifying element, perhaps the most important in a company, one of its main functions is to provide information on the company's product origin,the brand is also a basic element for positioning in the market. Without brands, companies would not be able to survive, considering that, by having them, they can compete in the market, advertising and advertisingits products adequately.
Thus, having already made clear the concepts of what a Trademark is, we will refer specifically to what we understand by Patent. To do so, we will refer to the fact that a patent is the property title granted by the State to the holder of an Industrial Privilege. It is necessary to mention that in order for a certain Industrial Privilege to be considered a patent, it must meet certain requirements, such as the following the invention is not in the state of the art, is new and has industrial application. To this end, following itself what is established in Decision 486 regarding patents, defines them, sustaining in its article 14: MEMBER COUNTRIES SHALL GRANT PATENTS FOR INVENTIONS, WHETHER PRODUCTS OR PROCESSES, IN ALL FIELDS OF TECHNOLOGY, PROVIDED THAT THEY ARE NEW, HAVE INVENTIVE VALUE AND ARE SUSCEPTIBLE OF INDUSTRIAL APPLICATION.While Article 15 of the same regulation states: The following shall not be considered inventions
- Discoveries
- Scientific theories.
- The whole or part of living beings, as found in nature, natural biological processes, biological material existing in nature or that which can be isolated, including genome, germplasm of any living or natural being.
- Literary and artistic works or any other works protected by copyright.
- Plans, rules and methods for the exercise of intellectual activities, games or economic-commercial activities.
- Computer programs or software.
- The ways of presenting the information.
At this point, it can be seen that precisely this invention, by following a certain process, can be transformed into a product, which, in order to be marketed, has to be identified with a certain Trademark (this being its relationship). A patent is granted for 20 years. During this time, the patent holder has the right to exploit the invention by himself or through licenses, and at the same time, has the duty to pay annuities during the same time, whether the patent is granted or not, in order to keep it in force. From all the above, it is categorically demonstrated that it is wrong to refer to the fact of patenting a trademark, when we have clearly stated the existing differences between what is a TRADEMARK and what is a PATENT. It should be noted that the confusion that arises when considering and affirming that a trademark can be patented, is originated by the lack of knowledge of a great part of the population of the vital importance that Intellectual Property has for the economic and social development of the countries, being a task of the State and of the professional and technical sectors in the Area, to raise awareness and educate society as a whole on these issues.