Free Trade Area of the Americas - FTAA

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 September 10, 2003

Original: Spanish
Translation: FTAA Secretariat




Name(s): Baudelio Hernández
Organization(s): Baudelio Hernández y Asociados S.C. Personal contribution.
Country: Mexico


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 patents.

The undersigned is a practicing industrial property lawyer with over 20 years’ experience, a career journalist, and has conducted advanced studies in international relations.

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