By: Ana Carolina Barquero
Legal Chief – LatinAlliance Nicaragua
The Marches, as such, have existed for more than two thousand years. When commerce and industry were born and developed, their practice was established and they were discovered as a sign of distinction in business. The Printed Marks are then created and sorting begins. Therefore, it became necessary for there to be a regulatory body to watch over them, in different countries around the world. In the case of Nicaragua, this entity is the Registry of Intellectual Property (RPI), an institution attached to the Ministry of Development, Industry and Commerce of Nicaragua (MIFIC).
An unregistered Trademark does not grant its owner the right of domain over it; and a third party may use the same word to distinguish the same product or services. The Brand is an important asset of a company, it is what classifies it and distinguishes it in the commercialization and manufacture of a product or service; although it cannot also be denied that due to our customs (as a source of Law), recognition and symbolic protection are also given to Trademarks that have been used in good faith and for a certain period of time, which is obviously not correct and does not guarantee protection against third parties.
According to Law 380, Law of Trademarks and Other Distinctive Signs, Brand is any sign that is apt to distinguish products or services; and the national regulatory framework also describes the registration procedure for a Trademark, Trade Name, Emblem and Advertising Sign; establishes which signs can constitute a Trademark and its classification; as well as the term of validity of the registration and the procedure for its renewal; and classifies them as Denominative, Figurative, Mixed, Three-Dimensional and Special Script.
The main advantage granted by registering a Trademark is obtaining the Right to Exclusive Use of the same, which means that the owner is the only person/company that can legally exploit that Trademark in Nicaragua, and thus differentiate the products or services that it markets under that name; and in this way, you can oppose any use of the Brand by a third party in the future.
A Trademark that is not registered runs the risk of having a gigantic and disproportionate reproduction in the competition, which can bring economic damages to the owner company;
Therefore, the protection must be strong and effective. It is for this reason that a reform in our Intellectual Property legislation is so necessary and urgent, so that the police and judicial persecution -against piracy that plagiarizes Registered Trademarks to sell goods or services- has legal support and provides legal security for intellectual property and trademark assets; In the same way, said support must also cover the discretion of the judicial authorities when they are faced with the confiscation of "pirated" assets or that have been seized for Intellectual Property crimes, thus preventing "pirated" imitations from affecting the company's capital. and of our country, by circumventing the payment for protection of a Brand and sales taxes of the products reproduced under said operation.
Exclusivity in this case consists in the fact that the owner is the only person/company that can lawfully use the Trademark in our country, to distinguish the products or services for which the registration was obtained, and may, therefore, oppose any unauthorized use. authorized by a third party. For example, the jurisprudence in Trademark Law indicates that at the beginning of the last century (1914), the Coca-Cola company solved the problem of plagiarism of its Trademark, registering its unique container with the design of a bottle in the shape of a woman's body. and registered it as a Trademark.
Currently, the registration of Trademarks has had an acceptable development in America, due to the fact that their protection is territorial, which in some way obliges transnational companies to register their Trademarks throughout the region in which they market their product. and where his presence is established; This affirmation is confirmed with a simple glance at a copy of our Official Gazette, La Gaceta, which in each edition contains the publications of the Trademark applications currently in process before the RPI, and which is mandatory monitoring for those who have registered their Trademarks and for Law Firms such as LatinAlliance, by virtue of the fact that in this way the information of the Trademarks that are in process is kept updated and it is prevented that a Trademark that could lead to confusion or error to the public will not be registered.
In this sense, our Firm is not only in charge of registering the Trademarks and Distinctives, but also monitoring them to inform our clients of any similarity, so that they can exercise their right to oppose the trademark registration and thus avoid damages.
In Nicaragua there has been an undeniable increase in the registration of Trademarks, Trade Names, Emblems, Domain Names and Patents. Despite the above, there is still a lack of awareness of how significant and profitable it is -in economic terms- to register and protect a Trademark. In addition, it must be taken into account that by not protecting a Trademark, the owner is much more susceptible to hacking attacks by a third party that appropriates a Trademark created by its owner, on which the creativity and personal seal of the entrepreneur; and since said Trademark is not registered in the Intellectual Property Registry, that Trademark that surely cost to position in the market, runs the risk of being lost.
Today, the efforts to reach modernization are valued and it is expected that they will increase in order to have the development and protection that other countries in the world have in terms of Intellectual Property; and to recognize in a short time that the Trademarks that we know without registering have the official rank: the R within a circle ®.