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31 August 2015
Trademark law and patent law
Corporate names, designations and trademarks
As explained in a previous update, the new Unified Civil and Commercial Code came into effect on August 1 2015 and as a result the previous civil and commercial codes were abrogated (for further details please see "New Civil and Commercial Code and industrial property rights"). The code includes a number of regulations that are relevant to the field of intellectual property.
In accordance with Section 5 of Law 26,994 – which approved the new Civil and Commercial Code – laws with mercantile content that supplemented the abrogated commercial code (including industrial property rights) will continue to supplement the new Civil and Commercial Code. These include:
Section 1101 of the new code refers to different types of prohibited advertising. Section 1101(b) refers to the cases in which comparative advertising is prohibited. Section 1101 states that:
"Advertising shall be banned if:
a) it contains false indications or indications of a nature such that they lead or might lead the consumer to error, when they refer to essential elements of the product or service;
b) it makes comparisons between goods or services, when the nature of said comparisons is such that they lead the consumer to error;
c) it is abusive, discriminatory or promotes harmful or dangerous behaviour which presents a threat to the health or safety of the consumer."
As regards image rights, Section 53 establishes that:
"In order to capture or reproduce the image or the voice of a person, regardless of the manner in which it is done, their consent is required, except in the following cases:
a) when the person participates in public events;
b) when a priority scientific, cultural, or educational interest exists, and sufficient measures are taken to prevent unnecessary damage;
c) when it comes to the regular exercise of the right to provide information about an event of general interest.
In the case of deceased people, it is their heirs or the representative appointed by the testator in their last will and testament who may give consent. Should there be disagreement among the heirs of a same grade, the judge will decide. Twenty years after the death, non-offensive reproduction will be free."
The new code also contains a provision in Section 151 that applies to the names of all legal persons – including companies – that will be of interest with regard to corporate names, designations and trademarks, when it establishes that a name "must meet the requirements of veracity, novelty and distinctive capacity, both in relation to other names, such as marks, fancy names or other ways to refer to goods or services, whether or not they are related to the purpose of the legal person."
For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email (firstname.lastname@example.org). The Obligado & Cia website can be accessed at www.obligado.com.
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