IP OVERVIEW OF GUATEMALA

Guatemala is a country in Central America bordered by Mexico to the north and west, the Pacific Ocean to the southwest, Belize and the Caribbean to the northeast, and Honduras and El Salvador to the southeast.

It is a representative democracy, whose capital is Guatemala City. The nation has been stable since 1996 and has been in a state of continuous development and economic growth.

Guatemala's abundance of biologically significant and unique ecosystems contribute to Mesoamerica's designation as a biodiversity hotspot.

Starting from May, 2006, Guatemala strengthened its legal framework for the protection of intellectual property rights with the passage of laws. So far, Guatemala has been a member of most international organizations, such as: WIPO Convention; Paris Convention (Industrial Property); PCT (Patents); Berne Convention; Rome Convention; Geneva Convention; Budapest Tresty; Nairobi Treaty; WCT (WIPO Copyright Treaty); WPPT (WIPO Performances and Phonograms Treaty); TRIPs Agreement; UCC.

On November 1, 2000, Industrial Property Law (Decree No. 57-2000) came into force, including enforcement of IP and Related Laws, Geographical Indications, Industrial Designs, Industrial Property, Patents (Inventions), Trade Names, Trademarks, Undisclosed Information (Trade Secrets), Utility Models.

Although Guatemala is making some efforts to modernize its IPR regime, its protection of intellectual property remains inadequate.

Patent

Guatemala’s patent protection is valid for a maximum period of 20 years (10 years for food, beverages, medicines and agrochemicals). There are lots of compulsory licensing provisions, and lack of protection against parallel imports. A number of subject areas are not patentable, including mathematical methods, living organisms, commercial plans, and chemical compounds or compositions. Under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), Guatemala established a patent "mailbox" for pharmaceutical and agricultural chemical products since January 1995. In addition, Guatemala does not provide exclusive marketing rights for pharmaceutical and agricultural products, which are subject to "mailbox" applications, as required by the TRIPs Agreement.

To be eligible for a patent, an invention must be new, innovative, and suitable for industrial application. These patents include invention patents and those patents under PCT.

Trademark

Trademark protection in Guatemala is acquired through registration with the Patent and Trademark Office of the Ministry of Economics. It is granted for a 10-year period, after which it may be renewed. Guatemala’s law provides insufficient protection for owners of well-known trademarks, since the right to exclusive use is granted to the first to file. This has permitted third parties to register and use (or prevent the genuine trademark holder from using) internationally well-known trademarks.

Copyright The copyright and other relevant acts came into effect in 1998. They were amended in 2000. Guatemalan law does not expressly protect computer software before. A 1992 law authorized a federal regulatory entity to enforce the international IPR obligations of local cable television operators. To date, however, no implementing action has been taken and the entity has not been established. In 1994, on the basis of agreements between Guatemalan cable television operators and the Motion Picture Exporters Association of America (MPEAA), the MPEAA withdrew its Generalized System of Preferences (GSP) petition alleging persistent copyright infringement and piracy of satellite signals. In October 1995, citing violations of those agreements by cable companies, the MPA (successor to the MPEAA) voided the 1994 agreements and instructed cable operators to cease transmission of MPA member companies’ signals. A number of cable companies ignored the demand and continued pirating the signals while they sought to reopen negotiations with the signal providers.

A report prepared in 1995 by the International Intellectual Property Alliance estimated that losses in Guatemala due to copyright infringements cost the U.S. firms $9.7 million annually.

Although the copyright industries continue to confront high piracy levels in Guatemala, IPR enforcement has improved considerably since the creation of the Special Prosecutor’s Office for intellectual property crimes.

Unfortunately, legislative reform recently passed with substantially decreased criminal penalties and removed a statutory damages provision for civil copyright infringement in its entirety. Software piracy at the government level still remains a serious problem in Guatemala.

In September 2000, amendments to the Guatemala Copyright Law were adopted, and entered into effect on November 1, 2000. This law reinstated the "public" prosecution of copyright crimes, an issue that had been at the top of the copyright industry's agenda for years.

The Special Prosecutor's Office for intellectual property crimes recently created by the Copyright Law Amendments has helped to improve copyright enforcement in practice in Guatemala. This Special Prosecutor’s Office, however, is overburdened and understaffed; it currently takes at least 3 to 4 weeks to obtain a search and seizure order to raid a suspected copyright infringer. Copyright piracy levels remain high.

For example, the level of business software piracy in Guatemala is 75%, one of the highest in Latin America. Although Guatemala is moving in the right direction, there is still much work to do to meet its multilateral and bilateral intellectual property rights obligations. The International Intellectual Property Association (IIPA) recommends that the United States Trade Representative (USTR) keep Guatemala on the Special 301 Watch List.

Guatemala's copyright protection is valid for 10 years, and it is granted for 5-year renewal periods.