IP OVERVIEW OF CHILE

Chile has a highly developed method of protecting intellectual property rights. It is important to notice that the first law concerning patents was enacted in 1859 and in 1931 a comprehensive law on patents, industrial designs and trademarks came into effect. In 1991, Chile became a member of the Paris Convention and in the same year, a new IP Law, No. 19.039, was enforced, including important matters related to patents, utility models, industrial designs and trademarks. In 2005 new and important modifications were made to the IP Law, mainly to comply with the Free Trade Agreements (FTA) signed with the US and the European Union. And in June 2, 2009, Chile officially became a Patent Convention Treaty (PCT) member. Then in February 2012, the Industrial Property Law had a new modification made to comply with the PCT and the Trademark Law Treaty (TLT), where it was eliminated the requirement of legalization for Power of Attorneys and Assignments documents.

The Copyright Law was enforced in 1970 and has been amended several times. Chile is also a member of the Bern Convention (1971), the Rome Convention (1961) and the Geneva Convention (1971). On November 3, 2017, the Chilean government published Law No. 21045 in its Official Gazette.

Under the law, Chile will establish the Ministry of Culture, Art and Heritage, and through the creation of the National Cultural Heritage Service to reform the current Intellectual Property Law.

Patent

The modifications to the IP law in December 2005 changed the protection period for patents of invention to a total of 20 years, starting from the application filing date. The IP law also incorporated industrial drawings, and the protection of layout designs or topographies of integrated circuits and geographical denominations.

A new special chapter was included on secret information being disclosed for public domain or by state institutions, i.e. the non-disclosed data contained in pharmaceutical agricultural chemical products that is now protected, when presented and approved by the Instituto de Salud Pública (ISP) or by the Servicio Agrícola Ganadero (SAG) authorities respectively.

A chapter for non-prejudicial disclosures or disclosed inventions was also incorporated. Therefore, applications that have been published or disclosed abroad, will have a "race period" of 12 months to be filed in Chile.

A "supplementary protection period" was also established for patent protection, when their granting takes more than 5 years — as from the application's filing date — or more than 3 years from the examiner's report request. As long as during its prosecution process it can be proved that there has been an "unjustified delay" in the granting of the patent.

On the protection for "plant varieties and/or species" as "patents" Chile follows the International Union for the Protection of New Varieties of Plants (UPOV) norms, and they are handled by the SAG authorities through their Plant Varieties Registration system.

Trademark

The current Trademark Law of Chile is Law No. 19039, which was enacted on January 25, 1991, and Decree No. 177, which was enacted on September 30, 1991. Chile accepts applications for registration of trademarks, service marks, serials, joint marks, certification marks, collective marks, defensive marks, and color marks. Commercial slogans and advertising terms can also be registered when they are used in conjunction with or in conjunction with products and registered trademarks. Industrial companies or distribution companies can also be registered as trademarks. The registration of trademarks is based on the principle of prior application. The Chilean trademark registration uses the international classification of goods and services for trademark registration. A trademark application may involve multiple goods or service categories, but a trademark application cannot specify multiple goods and service categories at the same time. After the trademark application has passed the preliminary examination, it must be announced on the official trademark notice within 10 days after the date of acceptance of the trademark application. The 30th days after the trademark announcement is the trademark opposition period.

Chile's actual IP Law No. 19.039, which is enforced in 1991, has had several changes in its Trademarks Chapter.

Among some of the most relevant changes are, without a doubt the one in the year 2005, which increased the trademark filing fees and registration fees; then, the one in the year 2007 where "sound trademarks" or sounds branding were incorporated; and the one in the year 2012 where an important modification was generated by accepting the possibility of dividing the registrations, the acceptance of multi-class trademarks for products and services within the same application and the elimination of certain formal requirements for original documents such as powers of attorney, assignments and changes of owner's names recordal.

One of the most important changes was the elimination of the requirement of having an original document attested by a Notary Public and legalized by a Chilean Consul. However, the authority always reserves the right to require additional formalities in case of having any "reasonable doubt". At the moment, there is a project being discussed that among the future changes there might be the cancellation of rights for the "on-use" of a trademark. At the moment the use is not a requirement to keep a register in force.

Copyright

The copyright law in Chile, in general, provides protection that is consistent — in most areas — with international standards.

Chilean law does not explicitly protect computer software as a "literary work". It does not stipulate lease rights and import rights. Criminal penalties for violations are not sufficient. There are no necessary restrictions on contract rights. Despite some positive and effective efforts to combat piracy violations, computer software piracy is still a serious problem. There are relatively few piracy problems with videotapes and audiovisual products.

Chile's copyright-related legislation does not protect all aspects of certain types of artistic activities, whether the artist himself or his work. Chilean law does not explicitly protect computer software as a "literary work". It does not stipulate lease rights and import rights. Criminal penalties for violations are not sufficient. There are no necessary restrictions on contract rights. Despite some positive and effective efforts to combat piracy violations, computer software piracy is still a serious problem. There are relatively few piracy problems with videotapes and audiovisual products.

When Chile amended the Copyright Law in 1992, it extended the period of protection of copyright to the author's lifetime and 50 years after his death, just reaching the standards of the World Trade Organization's trade-related intellectual property agreement.

Chile revised its Copyright law in 2010, extending the term of protection to the author’s life plus 70 years, to comply with the TRIPs Agreement standards.

The Internet providers' responsibility is the engine behind the adaptations of Chilean legislation on intellectual property matters. The amendments took place in 2010 so that Chile could comply with the FTA signed with the US.

The modifications to this law are aimed to take Chile from the watch priority list issued by the United States Trade Representative.

The role of the Internet is fundamental in these matters, as it is an ideal and unaccountable mean to perform different criminal actions.

In Chile, the changes to Copyright Law 20.435 reinforces the judicial path to handle these problems, whereby the entity or person(s) affected can use an ordinary tribunal to indicate which rights have been infringed. In Chile, this system can deal with these issues at a preliminary stage unlike the one in other countries where these matters are solved privately between the parties involved.

Provided by Johansson & Langlois.