The New Eyrie in Latin America for the Trans-Pacific Partnership (CHILE and TPP-11)
With the recent approval of the TPP-11 by the Chilean Congress, our country has started the final stages of the necessary steps before it enters into the aforementioned commercial treaty, thus becoming effective. This treaty implies an important step for Chile in its constant search for commercial growth and positioning within the international market, reaffirming the way of doing business in Chile: with freedom and opportunities.
However, the said treaty not only proposes an improvement and update to the traditional way of doing business. It also raises its aspects by setting standards and/or common rules to carry out world trade and legal relations and/or transactions, providing greater security for trade and investments, all with the purpose of diversifying the products to be exported. Therefore, the mere existence of the treaty means a benefit not only for Chile but also for all of our country´s trading partners in the Asia-Pacific region.
Contrary to what has been pointed out by critics within the current government, “the TPP-11 is indeed beneficial for the country. Our trade with the Asia Pacific has increased significantly, reaching figures close to 20% with the member countries.”[i] All of which is accentuated with the improvement in the access of our products to different commercial actors of great relevance within international trade.
Due to the previous analysis and taking into account that China is Chile's main trading partner from a quantitative point of view, our integration into the TPP11 - which reaffirms Chile's presence in the Asian economy - opens the door to a market of almost 500 million people, which represents 13% of the world GDP and 15% of international trade, added to what is currently exchanged with China. It will also allow around 3,000 tariff lines[ii] to enjoy access benefits for diverse and varied Chilean products for export to international and already consolidated markets.
Nevertheless, the TPP-11 establishes other rules that go beyond what is purely commercial (even when this is its essence), which – as mentioned above – makes it possible to strengthen global commercial integration based on security and the rule of law, founding a logic of global exchange accentuated with an effective production/generation of all types of goods and services, maximizing the efficient allocation of resources; among them, the intangible assets protected by intellectual property rights.
However, at present and with the recent enactment of the new industrial property law, Chile has now managed to update its legal system to the highest standards required by the Trademark Law at a worldwide level. The TPP-11 in such a case comes to reaffirm a large part of the series of modifications that have provided the national IP media with new tools to expand the protection of various intangible assets in our country. As an example, we can mention the following:
a) Trademarks: The TPP-11 requires that all elements constituting trademarks be accepted for processing. It is not possible to arbitrarily discriminate if it consists of an olfactory mark, a three-dimensional one, a movement mark, among others. In fact, Article 18.18, section C states: “each Party shall make its best efforts” to register a trademark. This is in accordance with what is in force in Chile, which is a reinforcement and recognition of the expansion of trademark assets in the world. A similar situation applies to well-known trademarks, which will enjoy protection and effective measures will be provided to deny the application or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known mark.
b) Domain Names. This treaty requires something that already operates in Chile; i.e., to provide transparency to the domain prosecution process. Everything revolves around having an adequate procedure for the resolution of controversies which is based on the principles established in the Uniform Policy for the Resolution of Controversies regarding Domain Names, approved by ICANN.
c) Geographical Indications (GI): Special relevance is given to GI´s in a wider sense. As indicated in article 18.30 “the parties recognize that geographical indications can be protected through a trademark, a sui generis system or other legal means”. In this way, the law provides the holders of a GI with all the legitimate legal mechanisms to achieve its due protection.
d) Patents: The TPP-11 requires adhering parties to substantially improve the examination of patents, raising their quality as anticipated in article 18.16 in such a way that patents can be obtained for any invention provided that is novel, reflects an inventive step and is capable of industrial applicability. This implies that during the procedure, both formal and substantive examinations of an application must be measured at the highest international standards, which in turn replicates that the application itself must be conceived with the utmost precision, increasing the need for highly specialized professionals to deal with these matters. Likewise, and very relevant to the case in question, relies on the requirement for the respective trademarks/patent offices to process applications in an efficient and timely manner, without unreasonable or unnecessary delays; something that implies that sooner or later all the trademark/patent offices of the adhering countries will have to improve procedures and their personnel so to deal with the growing number of patents generated in the region (article 18.46). Another relevant topic is contained in Annex 18-B CHILE, which states that regarding the provisions of articles 18.50 and the following ones on the protection of proving data or other undisclosed data, nothing prevents Chile from being governed either by said provision or by article 91 of Law No. 19,039 on industrial property.
e) Copyrights: It is important to highlight in this area that the treaty imposes on the parties the need to strike a balance between the copyright system and its related rights, but above all with a focus on the digital environment. This implies that Chile (like several other countries) must inevitably update their current legislation so that the focus is on the future: the digital frontier (article 18.66).
f) Satellite Signals: To date, Chile has no expressed regulation on the protection of satellite signals and encrypted cables. The TPP-11 requires the creation of a new criminal offense to prosecute criminal conduct aimed at defrauding legitimate owners. This includes anyone who intercepts, manufactures, distributes or consumes an illegitimately obtained signal. In the short and medium term, this will mean a substantial change in the regulation of telecommunications in Chile as well as in the other member countries belonging to the Pact.
As it is possible to verify, the scope of the TPP-11 escapes from the commercial/intellectual property notion but rather imposes reasonable demands on other areas of Law, such as Civil, Criminal, Procedural and Administrative Law, all with the purpose of assimilating processes in different jurisdictions, facilitating access to justice and the tools granted to the consumer public.
It is necessary to indicate that the TPP-11 imposes as a general obligation on the signatory countries that the respective legal system establishes procedures for the enforcement of intellectual property rights as indicated; "that allow the adoption of effective measures against any action that infringes intellectual property rights (...), including agile resources to prevent infringements and that constitute an efficient means of dissuading future infringements" (article 18.71). The idea behind it is to avoid obstacles to trade and abuse that may occur of any given intellectual asset. The mere fact that Chile subscribes to it, implies that it is a highly prepared country in the region to fulfil and comply with such obligations.
Added to all of the above, the spirit of the treaty in this matter is reduced to a single term: cooperation. The signatory countries must collaborate with each other so that private entities, together with their respective institutional bodies, cooperate in such a way that all intangible assets that deserve protection are duly safeguarded, contributing to the founding nature of TPP-11: the security, protection and the rule of law.
Lastly, and as of the date of writing this article (11/03/2022), Chile is now conducting final negotiations with several countries by means of “side letters” to fine-tune certain retails of the relationship that Chile will have with the rest of the signatory countries. Once said negotiations are done the promulgation of the aforementioned agreement will take place effective immediately.