What is intellectual and industrial property?

In a broad sense, intellectual property refers to any creation that the human mind can produce; that is: inventions, utility models, trademarks, literary and artistic works, etc.

In effect, the concept of intellectual property comprises:

Industrial Property: includes invention patents, utility models, commercial, collective, and certification marks, geographical indications, and appellations of origin. In Chile, the body responsible for registering industrial property rights, established in Law No. 19,039 and its Regulations, is INAPI (National Institute of Industrial Property), formerly the Departamento de Propiedad Industrial (Industrial Property Department).

Copyright: protects the rights of performing or creative artists over their performances or works, the rights of producers of phonograms over their recordings, and the rights of broadcasting organisms over their radio and television programs. In Chile, the body in charge of registering copyright and related rights, and the other functions of Law No. 17,336 on Intellectual Property and its Regulations, is the Intellectual Property Department, part of the Directorate of Libraries, Archives, and Museums (DIBAM) of the Ministry of Education.

For more information, please visit the DIBAM website.

What are the main intellectual property rights?

1. Trademarks

A commercial trademark involves any sign used to distinguish products, services, and industrial and commercial establishments in the market. The main property of a trademark is that it must have distinguishing characteristics, that is, it must be possible to distinguish it from other trademarks in the market so that a consumer can tell the difference between it and a similar product and/or service or product of the same type in the market.

The protection granted by a trademark is territorial and temporary, that is, it is valid nationally for a period of 10 years, indefinitely renewable in 10-year increments, as long as the corresponding fee is paid.

2. Patents

Patents grant exclusive rights allowing inventors to use and exploit their invention and prevent third parties from using it without consent. A patent is an exclusive right granted by the State for the protection of an invention. In order for a patent to be granted, the invention must fulfill three requirements:

a) Novelty

That is to say, that it does not previously exist in the state of the art. The state of the art is everything which has been disseminated or made available to the general public anywhere in the world, through a tangible publication, sale, or commercialization.

b) Level of inventiveness

That is to say, that the invention cannot be obvious or derivate in an evident fashion from the state of the art, in the eyes of a person with knowledge of the corresponding technical area.

c) Have industrial applications

That is to say, the invention must, in principle, be produced or used in any type of industry, whether in manufacturing, crafts, mining, agriculture, etc.

The protection granted by the State is territorial, that is to say, granted only at a national level and for a non-renewable period of 20 years counting from the date of the application.

3. Geographical Indications and Appellations of Origin

By obtaining a registration for a geographical indication or appellation of origin, the qualities and reputation of the product are protected from third parties using it unfairly while at the same time granting consumers the assurance that the purchased product possesses qualities, characteristics, or a reputation fundamentally linked to its place of origin.

While a geographical indication identifies a product as originating from a geographical area, attributing to it certain characteristics, quality, or reputation fundamentally linked to its geographical origin, an appellation of origin, in addition to the above, contains other factors (such as the human factor) that play a part in the characterization of the product.

4. Copyright

Copyright protects literary and artistic works and also includes related rights (the rights of authors and performers, broadcasting bodies, and phonogram producers). Copyright has two equally important aspects or components:

Economic property rights, permitting the titleholder or rightsholders to benefit from the exploitation, reproduction, communication, and dissemination of the literary or artistic work, by any means or procedure.Moral rights, which are highly personal, non-transferrable, and indefeasible, such as the right of authorship and integrity of the work, the right to regret or retract works, etc.

In addition to literary and artistic works, copyright can also protect software and original databases, among others.

5. Plant Varieties

Any creator of a new plant variety, whether in Chile or abroad, wishing to protect it in Chile can enter it into the Register of Protected Varieties. Current legislation recognizes the right that the creator has over the variety created, granting the exclusivity to propagate and commercialize the seed or plant of the protected variety throughout the duration of the protection.

The requirements for this protection to be granted are established in Law No. 19,342: the variety must be new, distinct, homogeneous, and stable.

What is the legal importance of intellectual property rights?

Two reasons can be given to explain why countries enact intellectual property laws.

The first is to grant legal protection to the moral and pecuniary rights of creators over their creations and the right of society in general to have access to these works.

The second is to incentivize creativity and to apply the results of knowledge acquired, as well as to stimulate fair commercial practices that contribute, in turn, to economic and social development.

The importance of intellectual property rights was first recorded in the Paris Convention on the Protection of Industrial Property of 1883 and in the Berne Convention for the Protection of Literary and Artistic Works of 1886. Both treaties are administered by the World Intellectual Property Organization (WIPO).