Intellectual Rights 25, volume I
Definitely ASIPI is a living organization that works hard and takes challenges as opportunities. Not in any other way can we interpret the fact that each year we receive more articles for our now emblematic magazine “Intellectual Rights”.
This time we reached number 25, we celebrated the silver anniversary and we received a record number of papers –21– that deal with all kinds of current issues for the subject that unites us: intellectual property.
In this issue the reader will be able to find information on traditional and no less important topics, analysis on cutting-edge topics that we are just trying to understand and studies that, although they seem to interest only one country, ultimately concern us all.
- Elisabeth Siemsen
The objective of this article will be to analyze the regulation of eSports from the perspective of intellectual property rights. To achieve this, the relationship regarding sports in general will be considered first, and then the links with the different intellectual property rights applicable to eSports will be established, emphasizing the provisions of copyright legislation. Then, the ownership of tournaments and competitions will be debated based on the regulations of the main videogame publishers in their terms and conditions of community competition licenses. Then, the implications of the user generation contents will be studied, especially from the dimension of the clauses contained in the end-user licenses agreement in the absence of specific regulations on the matter. The article will also cover novel issues such as the use of cheat bots, the exploitation of the commercial image of both celebrities and the players themselves and will end with the possible recognition of related rights of performers to the latter.
In this study the subject of invention patents and compulsory licenses is addressed in a simple and direct way, which allows their understanding and constitutes the door to enter deeper and more specific technical knowledge of the area. The analysis is done hand in hand with the national and international instruments that govern the matter, which allows a direct comparison between them, with a view to a comprehensive interpretation. Finally, a mention is made of the issue of compulsory licenses on medicines in the framework of the pandemic caused by the coronavirus disease (COVID-19).
The fact that a claim or invention contains an element that does not constitute — in isolated form — patentable matter (an idea, a natural principle, material as it exists in nature, etc.), the claim or invention shall not therefore be excluded. patentability. It will be necessary to analyze whether the claim or invention applies or uses that element (patentability ban) in a way that overcomes the exclusion of patentability (such as would be the case of the application of an idea by a technical means to solve a technical problem); or evaluate whether the prohibited element of patentability is used in conjunction with other elements in order to overcome the exclusion of patentability (for example, an invention that contains, among one of its elements, software; transformation of the material as it exists in nature, etc. .). The present article is directed to study the subject matter in Uruguay, but also includes references to other jurisdictions.
Being active in a market under free competition means selling a difference; from the dimension you choose (or can) and however small it may be considered, without that difference you cannot survive. But in order to arrive at the “what” we will have to pass through a “how”, and at the transition from one to the other lies the basis of competitiveness of any business activity.
After the adoption of Directive 2016/943, Europe is entering a turning point regarding the protection of one of the most decisive intangibles with the advent of the digital economy and Big Data: confidential information. Revolution 4.0 is not just a matter for the large technological corporations, it is a new paradigm, in which this asset will be key to the competitive capacity of the immense fabric of small and medium-sized enterprises in the EU, which contribute a considerable 55% of its GDP and more than 60% of jobs.
As a result, in 2019 Spain enacted the Business Secrets Act, which gives legal relevance and systematization to this intellectual capital asset that, perhaps, with the previous fragmented protection, had not received its fair share.
Trademarks consisting of signs which are contrary to “public policy” or “acceptable principles of morality” are grounds for refusal and absolute invalidity in European Union trademark law. The two concepts are different. “Public policy” is implemented from the top down by giving legal expression to values and principles that the State makes positive in the rules that make up its legal system. In a different way, “acceptable principles of morality” is a concept that is built from the bottom up because it is a value of collective coexistence of an ethical or social nature elaborated by society in accordance with the ideas and social, religious beliefs… prevailing at each moment. In the present work both concepts are analyzed in the light of the case-law of the Court of Justice of the European Union. Special mention should be made of the judgment of 27 February 2020 (C-240/18; “Fuck ju Göthe” case) since it also deals with the impact of the principle of freedom of speech on trademark law. The work ends with some personal reflections on the future prospects that are in sight and the conditions that the decisions of the administrative and judicial bodies must meet in order to respect this principle.
In order to adequately understand the scope of the norms that regulate trademark cancellation actions due to lack of use in the Andean Community countries, it is necessary to resort to the constant jurisprudential development carried out by its Court. In recent years there have been cases in which the following has been analyzed: (1) The distinction between placing on the market and availability in the market of products and services; (2) The term and the opportunity to prove the use of the mark; (3) The degree of variation allowed to the trademark in use versus the registered trademark; (4) The justification grounds for non-use other than force majeure or fortuitous events; (5) The identity or similarity between products or services for the purposes of partial cancellations of registrations; and, (6) Cancellation actions as an exception in processes for trademark infringement.
Most architectural works lack originality because functionality needs are decisive in their design and make many of them similar. Only some works achieve enough originality to speak of the existence of copyright. In those cases, occasionally there is a confrontation between the author’s moral right to the integrity of the work (which is inalienable, imprescriptible and unattachable) with the right of the owner of the architectural work to make modifications, according to his taste, needs or the presence of a public interest that justifies it. To elucidate this matter, the laws in this regard of countries such as Colombia, Venezuela, Ecuador, the United States, Peru and Chile, as well as jurisprudence of the Andean and European Community are analyzed.
