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Challenges to Intellectual Property in the light of the Free Trade Agreement in Colombia

Colombia has entered into several free trade agreements with a number of developed companies. The first of these to come into force was the free trade agreement with Canada and Switzerland. A FTA with the United States has just completed a long approval process and is now in the process of being introduced for effective implementation. Our negotiations with the European Union are also nearing conclusion.

What challenges should we tackle in the IP area?

We should look at it from two points of view:
1) From the public sector Colombia should reinforce the IP sector, particularly by strengthening institutions responsible for protecting IP rights, especially the Superintendence of Industry and Commerce, with regard to intellectual property rights (patents, utility models, industrial designs, trademarks, trade names).

Although the Superintendence has made significant procedural improvements and has reduced inspection and granting times, further steps should be taken, particularly in the area of new creations, which not only needs speeding up but also requires a review of policies on the granting of rights, which is still very restrictive.

On the other hand, Colombia should adhere to other public treaties as a specific commitment to these matters. The Treaty on the Law of Trademarks (TLT) enacted through the 1343 Act, 2009, facilitates faster trademark processing and abolishes complicated processing requirements, such as notarization of powers for nationals and legalization requirements for powers granted outside Mexico.

Recently, the Colombian Congress passed the law approving the “Madrid Protocol” (international law 1455 of 2011), which will subsequently be revised by the Constitutional Court. This treaty facilitates proceedings for obtaining trademarks abroad and reduces costs.

The task outstanding is to strengthen the judicial system in the IP area for effective preservation and efficiency of the rights. Judges and other figures in the legal system need greater understanding of the subject. The State Prosecutors Office has made efforts to train its prosecutors to create anti-piracy units, but more work is needed. The length of judicial processes must be reduced. These are still excessively lengthy, meaning the legal system is not meeting its users needs.

2) From the private sector.

The business sector is generally unaware of the nature of IP rights, their importance and management. They do not know that the most valuable component of the market value of any company is its intellectual property rights. Companies should be prepared in two areas:

a) Exporters will take advantage of treaties to sell the goods and services that were the subject of negotiation to their signatories and will enter these new markets with very low tariffs. As the first measure within their business plans they will have to consider an intellectual property protection strategy, first registering the trademarks of their products and protecting the knowledge applied to these products or services.

Failure to take such measures could lead to serious problems, such as entering without a protected trade mark, with the risk of using a sign that has already been registered by another party or a third party registering the trademark. It is practically impossible to compete without a brand.

Also, if products have added value that differentiate them from those existing because they have an innovative component, this should also be duly protected, either by patent, utility model, industrial design or trade secret. Not doing this may allow third parties to copy the products with no measures available for preventing this.

b) The national market receiving new participants should also take the necessary protective measures: registering product trademarks and watching the market to identify similar products. Likewise, for exporters, national companies should protect the knowledge applied to their products or services to take part in the protected market with the possibility to take measures against infringers.

Among their activities, national companies should include technology surveillance to keep them current with changes in the products their competitors will sell. In this area, IP offers technology surveillance tools through the use of information in patent banks around the world (primarily in the United States, the European patent and countries such as Japan, Korea, India and China).

Finally, we should be ready for the change in the Colombian accounting system which is currently undergoing a review by the Technical Council of the Public Accounts Office and will be approved in 2012 by the Ministry of the Treasury and Foreign Trade. The new system will have to follow international standards. According to these, financial standards should be a true reflection of what companies really have and are. The IP should be reflected in some way because it is a high-value component.

As can be seen, Colombia still has a long way to go towards developing the IP area of free trade agreements to boost its economy and play a more active role in international trade. The government should comply with its agendas and commitments to improve the IP system, encouraging the country to use it and to inspire confidence abroad. The private sector should include IP management in its business strategy, otherwise its ability to take part in an increasingly competitive market will be greatly restricted.

Carmen Sánchez-Puelles