September 10, 2003
Translation: FTAA Secretariat
COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
Baudelio Hernández y Asociados S.C. Personal contribution.
Regarding patents, there is an enormous gap between developed and
undeveloped countries; that is, between countries that conduct research
and generate patents or inventions, and those in which the government
merely protects inventions. This somewhat limits the development of
small or third-world countries in the Americas, and clearly illustrates
the differences between them. Consequently, we see that the PCT [Patent
Cooperation Treaty] has not been implemented in many countries, due to
fear or lack of knowledge on the part of their governments and to the
limited intellectual and industrial property culture. As a result,
countries feel pressured by the private sector and, in many cases, by
law firms that see the potential effect on their interests, and thus
oppose the application of these policies and international treaties in
which only large countries participate. The PCT is no exception, since
very few countries in the Americas are parties to it.
To implement an agreement such as the FTAA, all countries should be
involved in the same process of development and participate in
international treaties, or expect to begin participating in such
treaties within one or two years after they are signed. Otherwise, their
imbalanced socioeconomic development levels will create unsolvable
problems. Again, such problems would be impossible to solve, no matter
how many negotiating groups are created for that purpose, which is what
happened with the transportation issue in NAFTA. If carried over to the
FTAA, this issue, let alone other issues, would lead to total chaos,
exacerbating the market inequities and lack of technological development
that affect countries in general (except, of course, the US and Canada).
Thus, the FTAA could well turn out to be a
magnificent-project-turned-miserable-failure. In order to avoid such an
outcome, a minimum level of equality must be sought to strike a balance
among the countries of the region.
Regarding trademarks, the US must recognize that it has local- and
state-level trademark protection for small regional businesses and
industries. This policy must be extended throughout the region in
support of industrial property and development, since software and
designer-label piracy often occurs because of ignorance and, to a
greater extent, because of the exorbitant prices of certain merchandise
or products that ordinary consumers want and can’t afford. Pirated
versions of those goods offer an outlet for personal and family needs or
wants, and have consequently increased piracy, turning it into a mafia
promoted by the emerging markets themselves and their consumers. Piracy
is further promoted by mass media’s lack of control and their subliminal
messages’ effect on the public. This, coupled with a cultural lack of
awareness of what a trademark is, its effects, and the rights derived
from it, enables delinquents and non-delinquents to easily find, in
piracy, an outlet for their consumer desires and illegal dealings.
Things become even murkier and more complex, considering that the US has
already implemented the Madrid Agreement and the Madrid Protocol
concerning the international registration of marks, to which most
countries in Latin America, and particularly businesses, are opposed,
mostly due to ignorance rather than to conviction or actual knowledge.
At least, that is my belief. I also believe that this issue needs to be
lobbied again very specifically, in order to strike a general balance.
Undoubtedly, if the agreement is ultimately signed, certain special
interests will be hurt. If an improvement is really being sought for the
people of Latin America, however, we must ensure that there is a
correlation between the protection accorded to trademarks not only of
large firms, but also of small businesses that pay the same registration
fee as the larger firms, even if they spend less in advertising. Again,
I refer to the area of socioeconomic balance, which must be taken into
account; otherwise, the project might fail altogether or face very
serious obstacles in the future.
The US and Canada have an obligation to truly transfer technology to
Latin American countries at reasonable prices; ultimately, all they are
doing is looking after their common market.
Include local or state trademark protection in the agreement and, in
general, the system to prevent protectionism of big firms by small
governments, in order to strike a real balance that will enable the
success of the treaty.
Seek a way for the PCT to be implemented as soon as possible in all
Latin American and Caribbean countries, as well as the Madrid Agreement
and Protocol concerning the international registration of marks and
The undersigned is a practicing industrial property lawyer with over 20
years’ experience, a career journalist, and has conducted advanced
studies in international relations.