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16 February 2015
As industrial property rights constitute an essential element of modern enterprise, they are typically addressed in commercial law. Thus, in Argentina, trademark and patent laws are supplementary to the Commercial Code in force.
The recently passed Law 26,994 approves the new Civil and Commercial Code, and Section 4 will repeal the existing Civil and Commercial Codes when it comes into effect on August 1 2015.
The question of what will happen to industrial property laws when the new code comes into force needs to be examined. The same question is pertinent as regards other related regulations (eg, the Confidentiality Law (24,766) and the Defence of Competition Law (25,156)).
Section 5 of Law 26,994 provides that:
"The laws that currently integrate, supplement or are incorporated into the CIVIL CODE or the COMMERCIAL CODE, except for the provision of Section 3 of this law, remain in effect as laws that integrate or supplement the ARGENTINE CIVIL CODE AND COMMERCIAL CODE approved by Section 1 herein."
Accordingly, existing laws with mercantile contents that supplement the Commercial Code remain in effect as laws which supplement the new Civil and Commercial Code. This includes the Trademark Law (22,362), the Patent Law (24,481), the Confidentiality Law (24,766) and the Defence of Competition Law (25,156).
In commercial fields, it is common to use virtually indistinct expressions such as 'corporate names', 'trade names' or 'designations'. However, these expressions must be clearly specified and distinguished.
A corporate name distinguishes a corporation, and its use and protection are based on the Companies Law (19,550). The regulation of a designation is based on the Trademark Law (in accordance with Article 27, a 'designation' is a name or sign that designates a profit-making or non-profit-making activity). Similarly, Law 11,867, which regulates the transfer of industrial and commercial establishments, deals with certain aspects related to this subject by using the terminology 'trade name'. The existing Companies Law (19,550) will also be modified under Law 26,994.
Section 151 of the new code contains a provision applicable to the names of all legal persons – including companies – which is relevant for corporate names, designations and trademarks. It provides that such names:
"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 with 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), fax (+54 11 4311 5675) or email (firstname.lastname@example.org). The Obligado & Cia website can be accessed at www.obligado.com.
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