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02 December 2019
Actions which take advantage of the effort and prestige of a competitor in a fraudulent manner by using identical or similar distinctive signs may affect IP rights.
The protection provided under industrial property law to commercial signs registered with the National Institute of Industrial Property is more effective than that offered by unfair competition law.
It is therefore worth questioning whether unfair competition law exercises any function with regard to the protection of registered signs. There may be sectors in which the protection of a rights holder's interest requires the combined use of IP and competition law.
For example, there may be instances in which the imitation of a trademark may not be clear cut, but the imitation of other elements is obvious and will cause a likeliness of confusion.
In such cases, the exercise of the two types of action provide sufficient coverage.
For registrable – albeit unregistered – signs, any imitation thereof will be punishable only under unfair competition rules.
Subsections b, g, h and m of the recently issued Necessity and Urgency Decree 274/2019 contain a series of provisions which are applicable to the abovementioned scenarios:
b) Acts of confusion: leading others to error in relation to the corporate origin of an activity, establishment, or goods or services, so that they are considered to have an origin different from the one that they have...
g) The improper exploitation of a third party's reputation: acts that inappropriately take advantage of the image, reputation, fame, prestige, or corporate or professional reputation that belongs to another, leading to mistaking their goods or services, distinctive signs, or establishments, for those of a third party.
h) Acts of unfair imitation: the imitation of goods and services or corporate initiatives will be considered unfair when deemed to lead to confusion in relation to the origin of the goods or services, or when it results in taking improper advantage of a third party's reputation or effort...
m) Comparative advertising infringing Section 15.
For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email (email@example.com). The Obligado & Cia website can be accessed at www.obligado.com.
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