CAFTA And Intellectual Property

The Free Trade Agreement between Dominican Republic, Central America and United States of America (CAFTA-DR) has resulted in substantial amendments to the intellectual property field in El Salvador. Generally the amendments, which affect most of Central America, are focused mainly in the Copyrights field.

CAFTA incorporates into the Salvadoran internal laws the following treaties into Salvadoran law: The Patent Cooperation Treaty (1970); The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1980); The WIPO Copyright Treaty (1996) and The WIPO Performances and Phonograms Treaty (1996). El Salvador is expected to ratify the following treaties before January 1, 2008: The International Convention for the Protection of New Varieties of Plants (1991); The Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974) and "The Trademark Law Treaty (1994). El Salvador has also agreed to make reasonable efforts to ratify The Patent Law Treaty(2000); The Hague Agreement concerning the International Registration of Industrial Designs (1999) and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989).

As far as Trademarks, the Treaty establishes innovations including the laws the collective trademarks, certification, sound, smelling trademarks and trademarks that at the same time can be Geographical Indications. It also eliminates mandatory registration of License of Use recordings at the Intellectual Property Register, and only requires a License Agreement contract between the parties to make valid the Licensed Rights. Most importantly, the Treaty establishes the possibility of cancellation of a registered trademark because of lack of use of during the five years preceding the initial date of the cancellation action. These changes the "attributive system of inscription" that El Salvador had before in which it was not necessary that a trademark be in use to defend it either on the Administrative or Judicial levels. A registration can also be cancelled partially, but only for those products that the inscription covers but are not in use. Cancellation can also be used as a defense against existing similar trademarks not currently in use. In this last case, the owner of a trademark can prove the use of the trademark through mechanisms such as commercial invoices, accounting documents, advertising...