FIRST LATIN AMERICAN INTELLECTUAL PROPERTY MAGAZINE / Nยบ 41 APRIL - JUNE 2011
KICK OFF FEATURE ARTICLE
IP WITH A SPORTING SPIRIT 2011 INTA-ASIPI CONFERENCE
TRADE MARKS IN LATIN AMERICA STATISTICS
THIS EDITION IS SUPPORTED BY:
Contents 18
6
Editorial
8
Statistics. Trade Mark evolution in the region
12
Have you heard?
14
Marcasur reports
17
Opinion. By Vera Abogados Asociados, Colombia
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With honors. Interview with Jorge Otamendi
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Kick off. Feature article Something more than trade marks. Feature article
22
35
28
Ambush marketing. Column: Law and sports.
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Events. IT with sporting spirit . 2011 INTA-ASIPI Conference
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Events. The new giants talk about IP. BRIC IP FORUM (BIPF)
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Opinion. By Becerril, Coca & Becerril, Mexico
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Opinion. By E-Proint, Costa Rica
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You have the floor.
44
Lawyers in their spare time. Music & Sea Argentinean Miguel O´Farrell and Salvadoran Roberto Romero Pineda.
46
Marcasur Travelling
50
Kidding but seriously
51
The history of a brand. The secret of success: Coca-Cola.
51 46
4
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Editorial In this digital edition of MARCASUR magazine, we have the pleasure to introduce for the first time our magazine, MARCASUR, in English. MARCASUR has been publishing since 1996 MARCASUR printed magazine, distributed mainly to Latin American readers, as it is published in Spanish. Now our goal is that readers outside Latin America can also enjoy reading it through this digital magazine. MARCASUR magazine has a broad experience and recognition in the Latin American market, keeping our readers updated with the latest IP news. You will find statistics, interviews, cover stories, events, news, articles and more, with a very attractive design. We invite you to learn more about us through our sites www.marcasur.com, and www.marcasurmi.com.
staff Editor: Juan Pittaluga jpittaluga@marcasur.com
Executive Director: Victoria Pereira vpereira@marcasur.com
Marketing Department: Mei-Lin Che mche@marcasur.com
Press: Karina Gonzรกlez kgonzalez@marcasur.com
Francisco Pittaluga francisco@marcasur.com
Communications: Natalia Domingo ndomingo@marcasur.com
Subscriptions: Anaclara Cabrera acabrera@marcasur.com
Graphic Design: LP Arte Visual Printer: Grรกfica Mosca
MARCASUR is published quarterly, and we are offering to you free of charge this English version. We will soon publish it also as an iPad application, giving you instant access to the latest issues. Hope you enjoy it! M
MARCASUR Cont. Echevarriarza 3535 A, 1604 CP 11300 Montevideo, Uruguay Tel: (598) 2628 4604 Fax: (598) 2623 2957 info@marcasur.com Year 15 nยบ 41 april-june 2011
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ISSN 1688-2121 D.L. 354.155 Comisiรณn del Papel. Ediciรณn amparada al decreto 218/96
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Statistics // Trade Marks in Latin America
TRADE MARK EVOLUTION
IN THE REGION IN ORDER TO GIVE YOU A NUMERICAL PERSPECTIVE ON IP PRACTICES, MARCASUR CONSULTED THE REGIONAL SPECIALISTS WITH REGARDS TO THE AMOUNT OF TRADE MARKS FILED AND RENEWED DURING THE PAST FIVE YEARS IN THEIR COUNTRIES. HERE ARE THE RESULTS FOR 2010
1.- Total number of Trade Mark Applications in Latin America (2006-2010) Country
2006
Argentina Bolivia Brazil Chile Colombia Costa Rica Cuba Ecuador El Salvador Guatemala Honduras Mexico Nicaragua Panama Paraguay Peru Dominican R. Uruguay Venezuela Totals
74.711 5.364 85.588 41.437 22.281 12.015 2.088a 12.000 14.901 10.892 9.259 68.975 5.806 10.049 14.860 18.862 6.205 9.039 30.142 453.135
2007 71.559 8.446 139.329 44.320 24.049 a 16.510 b 2.948a 18.332 12.379 15.118 10.294 77.066 a 5.977a 9.609 16.719 22.519 a 7.993 10.077 30.083 543.305
Notes: a Does not include renewals. No official source available. b Estimated figure. No official source available. n/d no statistical data.
2008 89.900 9.564 141.079 48.836 23.461a 15.266a 2.390a 15.524 11.855 14.177 9.523 77.467a 7.511a 10.719 20.032 25.590a 7.386 11.053 25.045 565.252
2009 83.683 9.023 111.724 39.934 20.298 10.529a 3.615 14.349 9.789 14.303 s/d 90.591 7.911 8.541a 18.435 31.282 6.826 9.603 21.700a 512.136
2010
Growth 2009-2010 (%)
88.428 9.871 148.123 45.105 26.713a 15.467 2.476 15.551 11.253 15.318 8.854 108.552 6.768 14.350 28.367 33.116 9.309 15.615 21.345a 624.581
5,6 9,4 32,6 12,9 s/d s/d –31,5 8,3 14,9 7 s/d 19,8 –14,4 s/d 53,8 6 36,3 62,6 –1,6c 22
The offices received a total of 624,581 trademark applications during 2010. In 2009 they received 512,136. There was a 22% increase in 2010. Uruguay reported the largest growth (62.6%), followed by Paraguay (53.8%), Dominican Republic (36.3%) and Brazil (32.6%).
The top five. The countries with the most trade mark applications are Brazil (148,123), followed by Mexico (108,552), then Argentina (88,428), Chile (45,105) and lastly, Paraguay (28,367). 8
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Worldwide. These statistics are based on information provided to Marcasur by Intellectual Property law firms and offices as part of its annual surveys. They shared their statistical data concerning the number of filed and renewed trade marks between 2006 and 2010 for this report. The figures corresponding to 2010 were obtained between the months of January and March of 2011. The results include primary trade mark applications and renewals. It is likely that there is missing data relating to some offices or certain periods; these cases will be highlighted as will the cases where renewals are not included. The surveyed areas includes all of Latin America, USA, Spain, the EU and the WIPO International Trade Mark Registry in Geneva The data. The available statistics show that in 2010, 614,585 trade mark applications and renewals were filed, compared to 380,095 filed in 2009 (see table 1). The global volume of trade mark registration and renewal activity during
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2010 increased 61.6% in comparison to 2009. The countries which allow multiclass applications include Costa Rica, Cuba, Dominican Republic, Nicaragua, Peru, Uruguay and Chile. Nevertheless, goods and services cannot be covered under the same application in Chile. The top five. The countries experiencing the largest growth were Uruguay (62.6%, 15,615), followed by Paraguay (53.8%), Dominican Republic (36.3%), Brazil (34.6%) and Mexico (19.8%). A -31.5% drop compared to the previous year was recorded in Cuba (2,476 applications during 2010, decreasing from 3,615 applications in 2009), followed by Nicaragua who reported -14.4% (6,768 in relation to 7,911 in 2009) and Venezuela with -1.6% (21,345 in relation to 21,700 in 2009).
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Table 2. National Primary Trade Mark Applications (2010) Country
Total primary trade marks (2010)
Argentina Brazil Bolivia Chile Colombia Costa Rica Cuba Ecuador Honduras Mexico Nicaragua Panama Paraguay Perú Dominican R. Venezuela Totals
% national trade marks
Total national trade marks (2010)
69,565 129,620 5,991 31,690 26,713 11,264 1,856 15,551 6,088 87,477 4,019 9,632 22,102 23,120 7,964 21,345 473,997
55.373 104.992 1.667 22.626 16.353 5.797 200 8.934 1.938 61.947 705 3.695 13.133 15.164 4.151 13.874a 330.549
79,6 81 27,8 71,4 61,2 51 10,7 57,4 31,8 71 17,5 38 59,5 65,6 52 65 69,7
a Estimated figure. No official source available.
The top five national trade mark filing countries. The country with the greatest percentage of national trade mark applications was Brazil with 81%. It is followed by Argentina with 79.6%, Chile with 71.4%, Mexico with 71% and Venezuela with 65%.
Table 3. National Trade Mark and Trade Name Applications in Spain Country
2006
2007
2008
2009
2010
Spain
62.601
59.076
72.231
56.197
48.099
Growth 2009-2010 –14,4%
Table 4. Trade Mark Applications and Renewals in the United States Country USA
2006
2007
2008
391.714
435.154
443.780
2009
2010
396.004
417.153
Growth 2009-2010 5%
Table 5. Community Trade Mark Registration and Renewal CTM
2006
2007
2008
2009
2010
78.029
88.475
88.038
88.209
98.217
Growth 2009-2010 10,2 %
Table 6. Registration of Applications for the International Trade Mark Registry WIPO Madrid System
2006 36.471
The data corresponding to each country is provided by the following contributors: Argentina: Matías F. Noetinger (Noetinger & Armando) and Hernán Goana (INPI) Bolivia: Marcos Mercado (Guevara & Gutiérrez S.C.) Brazil: Deyse Gomes Macedo (INPI) Chile: Marcos Morales (Alessandri & Compañía) Colombia: Martín Torres (Brigard & Castro) Costa Rica: Marianella Arias (Divimark) and Atty. Viviana Mora Artavia (Intellectual Property Registry) Cuba: Yordanka Ramírez (Bufete CLAIM S.A.) and Carmen Ross Fonseca (Cuban Intellectual Property Office) Dominican Republic: Mary Fernandez Rodriguez, Miguelina Figueroa, Melba Alcántara Cornelio and Emperatriz López (Headrick, Rizik, Álvarez & 10
2007
2008
2009
2010
39.945
42.075
55.159
59.482
Fernández) Ecuador: Rodrigo Bermeo R. (Bermeo & Bermeo Abogados) El Salvador: Diana Hasbún and Patricia Iraheta Larios (IP Registry) Europe: Emmanuelle Guern (OHIM) Guatemala: Ernesto E. Viteri (Viteri & Viteri) Honduras: Camilo Bendeck and Karl Hollmann (General Intellectual Property Office of Honduras) Mexico: Fernando Becerril (Becerril, Coca & Becerril) Nicaragua: Marvin Caldera S. (Caldera & Solano Compañía Limitada) Panama: Susana Saldaña R. (Bufete Candanedo) Paraguay: Lorena Mersan (Mersan Abogados) Peru: Virginia Delion (Estudio Delion) Spain: Dámaris Ansón (Oficina Ponti)
Growth 2009-2010 7,8 %
United States: United States Patent and Trademark Office (USPTO) Uruguay: Edgardo Larminy (Pittaluga & associates) and Dr. Luis Alberto Gestal (National Intellectual Property Office) Venezuela: Adolfo López Moreno (Ayala & López Abogados) WIPO: Carlos A. Naranjo
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HAVE YOU HEARD? Comings goings
&
In Colombia, Muñoz Abogados has hired Giancarlo Marcenaro Jiménez as their new senior counsel. Giancarlo Marcenaro has been the Superintendent of Industry and Commerce (E) and was the Regional Intellectual Property Superintendent for close to a decade. As the Director of the National Patent and Trademark office, he was responsible for the management and administration of the National Intellectual Property System. In Peru, Scavia & Scavia Abogados has hired Carlos Ramírez Lau for the Intellectual Property and Competition Law
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Division in the firm. Carlos is a graduate of the Universidad de Lima Law and Political Science School and has worked for fourteen years in the Distinctive Signs Office at INDECOPI. In Venzuela, Estudio Antequera Parrillo & Rodríguez has hired attorney Mariana Montiel Salas for the firm. In Nicaragua, García & Bodán have re-hired two distinguished professionals for their legal team. Amílcar Navarro Amador began his professional career in the offices of García & Bodán Nicaragua in 2003. In 2009 he
a scholarship to study a Master's Degree in International Law at the Instituto Superior de Derecho y Economía (ISDE) in Barcelona, Spain. Having successfully completed his studies, he has now returned to García & Bodán. Diana Patricia Zelaya Salas also began her professional career in the offices of García & Bodán Nicaragua in 2005. In 2010, she too won a scholarship to study a Master's Degree in International Law at the Instituto Superior de Derecho y Economía (ISDE) in Madrid, Spain. Having successfully completed her studies, she has now also returned to the main office in Managua. In Venezuela, attorney Ana Carolina Martins has been hired at Carrascosa Tecnología Marcaria to work in the department that files actions with the Superintendency for the Promotion and Protection of Free Competition. In Venezuela, Rosa Mejuto Gordon has been named partner at TEHAR S.C.
In Peru, Estudio Olaechea has hired Mónica Germany as Intellectual Proper ty Area Director. Mónica is an attorney who has a Master's Degree in Corporate Law and 20 years of experience in the areas of patents, trademarks, and competition law, among others. In Mexico, Link International has recently hired Raúl Raygadas Vela. Mr. Raygadas worked for several years as the Trademark Examination Depar tmental Coordinator at the Mexican Intellectual Property Institute and handled several issues in two Intellectual Property Offices in Mexico.
News In Mexico, attorneys Miguel Ángel Carpio and Enrique Ochoa de Langlet of Carpio & Asociados were approved by the National Copyright Institute to act as arbitrators in the arbitration proceeding regulated by the Federal Copyright Law.
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In Brazil, the boutique-style law firm Lopes De Oliveira Lambert, Advogados, was established, born from the joint venture between two known firms: Alves, Vieira, Lopes and Gomes Canedo Barbosa & Suzuki. The new office has its own Intellectual Property Depar tment with renowned colleagues Mauricio Lopes de Oliveira, Antenor Barbosa, Jr., Ivina Suzuki and Diogo Alburquerque, among others. Their new address in Río de Janeiro is Av. Das Americas no. 7935, Sunplaza bl. I, 604/606. www. lopesdeoliveira.com. In the Dominican Republic, attorney Janet Adames de Lantigua founded J Adames & Asociados, a specialized IP boutique firm. Ms. Adames was the Director of the IP Department at Headrick Rizik Álvarez & Fernández for 16 years. Her new e-mail is janet@jadamesrd.com and her new address is Calle Pasteur esq Calle Santiago, Plaza Jardines de Gazcue, Suite 315.
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In Colombia, OlarteRaisback has announced that the partners have decided to go their separate ways. Carlos R. Olarte and Juan G. Moure are now the partners at OlarteMoure. Their contact e-mails are carlos.olarte@olartemoure.com a n d juan.moure@olar temoure.com. www.olartemoure.com. J. Ian Raisbeck and Natalia Castro founded Raisbeck Osman & Castro. Their contact e-mails are ian.raisbeck@roclaw.com and Natalia.castro@roclaw.com. www.roclaw.co. In Peru, attorneys Jorge Allende and Magali García have formed a now IP firm called Allende & Garcia. For more information go to www.allendegarcia.com.pe. In Peru, Scavia & Zúñiga Abogados has been dissolved. Two independent firms where then formed, Scavia & Scavia Abogados and Zúñiga & Cia Abogados. Scavia & Scavia Abogados will continue to provide integral legal counseling services, particularly focusing on Intellectual Property and Competition Law.
New information In Venezuela, TEHAR S.C. has moved its offices to the following address: Avenida Andrés Bello, Edificio Atlantic, piso 6, Los Palos Grandes, Caracas. Its telephone and fax numbers are still 58212 918 33 44 and 58212 918 33 43, respectively. In Uruguay, Cikato has new offices at the following address: Araucana 1277 11400 Montevido, Uruguay Its telephone, fax and e-mail have not changed and they are: Tel.: 598 2606 0606 Fax: 598 2606 1439 E-mail: cikato@cikato.com.uy
Nassar Abogados and Unimark are expanding their presence in Central America with the opening of their second office in Honduras. It is located in the city of Tegucigalpa, Colona Lomas del Guijarro, Boulevard Juan Pablo II, Torre Alianza, no. 102, and it is joining the network made up of offices in San Pedro Sula (Honduras) Guatemala City (Guatemala), San Salvador (El Salvador), Managua (Nicaragua) and San José (Costa Rica). www.nassarabogados.com
In Honduras, the office of Arias & Muñoz in Tegucigalpa has moved to: Centro Comercial El Dorado 61 Piso, Boulevard Morazán Tegucigalpa M.D.C. Its new telephone numbers are: Tel.: 504 2221 4505 Fax: 504 2221 4522
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MARCASUR REPORTS
Venezuela: Anniversary. Fifteen years of E.C.V. & Asociados On the 1st April, E.C.V. & Asociados celebrated its first fifteen years of existence. To celebrate, it held a gathering with friends, colleagues and national and international associates which was full of color and music. The partners took advantage of the occasion to thank the immeasurable support received that has made these 15 successful years possible.
Marianella Montilla
www.ecv.com.ve Enrique Cheang
MARCASUR REPORTS
México: Two new hires in Dumont Bergman Bider & Co., S.C. Roberto Castañeda, B.A. and Luis Guillermo Corona, B.A.
Dumont Bergman Bider & Co., S.C. announced two new additions to its staff. Both professionals have ample experience. They are Luis Guillermo Corona, B.A. (lcorona@dumont.com.mx), who is in charge of the Trademark Portfolio and Litigation Division, and Roberto Castañeda, B.A. (rcastaneda@dumont.com.m x), who has taken charge of the Anti-piracy Division. 14
Dumont is a Mexican firm that was founded 70 years ago and has since dedicated itself to the processing, securing and managing the protection of inventions (patents, utility models, and industrial designs) and distinctive signs (trade marks, trade names, slogans and denominations of origin). The firm specializes in litigation, copyrights, information technologies and anti-piracy, and the team
comprises expert lawyers, consultants and litigators in each discipline who combine experience and energy and prepare themselves day after day to provide high addedvalue services.
www.dumont.com.mx www.marcasur.com
MARCASUR REPORTS
Venezuela: MHOV, a young and growing firm
Venezuela is perhaps the country that has experienced the largest political and social transformations of the region in recent years. The firm Márquez, Henríquez, Ortín & Valedón, which was created five years ago from the partnership of the firm Márquez Lefeld (founded 20 years ago by Leopoldo Márquez Lefeld) with Luis Alejandro Henríquez de Sola, Rafael Ernesto Ortín Perozo and Carlos Valedón Hurtado, who had been developing their professional careers in nationally recognised law firms and companies, came into existence in this environment. With the growth of the firm, it has recently moved into new offices and is facing the future with optimism. How did you decide to become partners? LAH: Each one of us had to make decisions in coinciding moments; the country was changing and so was intellectual property, so we decided to take advantage of the chance to set up a new firm. LML: Something very interesting was happening with us. We always ended up talking about business, intellectual property, life and goals at every ASIPI or INTA meeting. We had so many things in common! REO: It was a tough decision for me to make. I had come from being an in-house lawyer at a m u l t i n a t i o n a l telecommunications and entertainment company, so I was more uncertain about the challenge I had undertaken than my colleagues were. Nevertheless, it was the right choice! CVH: After having worked in very strict organizations in the past, it was great to be able to start a new stage in my life in a more flexible company, where each one of us has had the opportunity to explore his creativity, intellect and excellent relationships to lead MHOV to where it stands today. And where do you stand today? LML: We are a young, dynamic and currently one of the top intellectual property firms in Venezuela; that's how the market,
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our clients and specialist magazines such as Chambers and Partners see us. Are MHOV's activities mainly focused on IP? LML: Although our core business revolves around intellectual property, which is the department headed up by LAH and REO, we have developed a corporate department that specializes in foreign investment, regulatory affairs and fiscal planning, run by CVH and myself at the helm. We also deal with aeronautical issues. Nevertheless, the interdependency of each area means we work together as a team most of the time. In a country in such a complicated situation such as Venezuela, where do you see yourselves in 10 years time? REO: In this wonderful country, working for and on behalf of it, harvesting success, maintaining those wonderful professional and personal relationships with all our colleagues of the region. We are very optimistic! But does the future situation in Venezuela seem complicated? LAH: Yes, but we have invested heavily, have new offices, have taken on new staff, are investing in technology and continue attending the most important meetings and events in the area.
Leopoldo Márquez Lefeld
Luis Alejandro Henríquez De Sola
Rafael Ernesto Ortin Perozo
CVH: It's simple. Venezuela has given us everything and MHOW will give Venezuela everything.
Carlos Valedón Hurtado New address: Av. Francisco de Miranda, Edif. Cavendes, piso 1, ofic. 101, Los Palos Grandes, Caracas 1060, Venezuela. Telephone: (58 212) 2864024, 4912, 9636, 7337. Fax: (58 212) 2855817. www.mhov.com.ve www.mhov.com.ve APRIL / JUNE 2 0 1 1
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opinion
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New designation of origin for a lovely Colombian town Carolina Vera Matiz Vera Abogados Asociados S.A. Colombia
Colombia is a naturally beautiful country that combines beaches, snow-capped mountains, valleys, mountain ranges, islands and deserts throughout its entire geography. Apart from its geographical beauty, Colombia is the owner of a “cultural boom”, a mixture of African, Spanish roots and indigenous traditions which come from, the arawak, Caribbean and chibcha cultures, among others. It was precisely the chibcha culture that gave rise to the traditional craftsmanship in its various forms: basket weaving, pottery and ceramics. The inhabitants of a small town belonging to the region of Boyacá, named Ráquira, which means “village of potters” in the chibcha language, have passed on this knowledge of craftsmanship from generation to generation. Ráquira, located next to the Candelaria desert, in the middle of beautiful natural surroundings, is today a vividly picturesque town, with houses painted in various bright and happy colors, whose economy base is almost exclusively the crafts market. In Ráquira it is possible to find goods ranging from the traditional clay pig (marranito) which serves as a piggy bank, to furniture for decorating a home. In December of last year the Colombian National Competent Authority declared the protection of the designation of origin “handcrafted Ráquira ceramics”. The resolution of this declaration states: “The designation of “Handcrafted Ráquira Colombia Ceramics” is used to designate handcrafted pottery and ceramic goods characterized by being made in the municipality of Ráquira by means of traditional techniques, using red, purple and white clays extracted from the same municipality as raw materials, and by being both decorative and for everyday use, having characteristic finishes and traditional styles. Handcrafted Ráquira Ceramics joins the other designations www.marcasur.com
already granted by SIC such as “Colombian Coffee” in 2005, “Huila Passion Fruit” in 2007 and “Guacamayas baskets” in 2009. A doubt has emerged from the declaration by the Competent Authority: in this case, is it the clay that determines the characteristics of the product or is it the traditional knowledge and skills in the making of the handcrafted ceramics that could transform any given clay into a wonderful handcrafted creation? If it is the clay, clearly the combination of it plus the traditional skills of the inhabitants of Ráquira is what makes the “Handcrafted Ráquira Ceramics” a designation of origin, but if the Ráquira handcrafts are due solely and exclusively to the traditional knowledge of the inhabitants, passed down through the generations, we would be facing an indication of origin, thus meaning, in any case, that the protection covers the traditional knowledge as well as the clay working skills. Further from the debate, interesting in any case, this declaration of handcrafted Ráquira ceramics as a designation of origin is an opportunity to invite nationals and foreigners to learn about a traditionally magical people, a Colombian treasure, and while doing so, see the amazing scenery that characterizes the whole region of Boyacá.
Carolina Vera Matiz is an attorney and also a partner in the firm Vera Abogados Asociados S.A, a graduate of Universidad de los Andes (Bogotá, Colombia), with a Masters degree in Trade Marks, Patents and Copyrights from the Universidad de Alicante (Alicante, Spain). Her areas of practice include: industrial property, patents, copyrights, unfair competition, community law, administrative law, commercial law, new technologies and litigations. She is currently the CEO of Vera Abogados Asociados S.A. APRIL / JUNE 2 0 1 1
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INTERVIEW WITH JORGE OTAMENDI
WITH HONORS IN 2010, WITH AN ESTABLISHED REPUTATION AND OVERWHELMING PROFESSIONAL ACTIVITY, JORGE OTAMENDI WAS APPOINTED HONORARY MEMBER OF THE INTERNATIONAL ASSOCIATION FOR THE PROTECTION OF INTELLECTUAL PROPERTY IN THE 42ND WORLD CONGRESS HELD IN PARIS. THE DISTINGUISHED ATTORNEY GIVES US HIS IMPRESSION OF THE HONOR WITH AN ARGENTINEAN ACCENT.
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«IT WAS A SURPRISE AND A GREAT HONOR INDEED. TO RECEIVE A DISTINCTION OF OF THIS NATURE FROM YOUR PEERS MAKES IT EVEN MORE SPECIAL»
Attorney by trade and intellectual property agent, Otamendi has had an ample 30 year career, which includes published books and articles both in Argentina and other countries, an important academic role as director of the IP department in the Institute for Legal Studies of the Argentinean Federation of Bar Associations, professor and speaker of post-graduate courses, and former adviser of the Deputy Secretary of State for Economic Affairs and of the Secretary of State for Industrial Development. He is also an active member of the international IP, president of AIPPIArgentina since 2004 and Secretary of the Intellectual Property Institute of the Bar Association since 1988. Otamendi was born and raised in Buenos Aires. He is 63 years old and knew he would be a lawyer since he was a child. “Perhaps because my father-whom I never got to know since he died when I was five years old- and my grandfather, Pedro C. Breuer Moreno-who I admired-, were also lawyers” he says. At home he was repeatedly told that he must study, learn languages and study a university degree. He did everything and still went for more. He learnt three languages: Spanish, English and French. He graduated as a lawyer at the Universidad Católica Argentina de Buenos Aires, as a Doctor in Law and Social Studies from the Universidad Nacional de Buenos Aires and later gained a Master's Degree in Comparative Law from the University of Illinois, in Urbana-Champaign. “I suppose I was a good student, even though I was never in the high marks group” he said humbly. When he turned 15 and having finished the school year, his uncle Rafael Piccardo asked if he would like to help translate
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patents at the G. Breuer law firm throughout the month of December. He accepted and after a few years, on the 1st of August 1969, while studying his fourth year of Law he was again invited by his uncle, but this time as an employee. “I happily accepted”, he says with enthusiasm and not surprisingly: he is still part of the firm today and belongs to the fifth generation -out of six- with the same family that runs it. It was founded by Gustavo Breuer, a German who arrived to Buenos Aires and started professional activity in 1869. Currently as a member of the firm, his areas of practice are IP, technology transfers, defense of fair competition, licensing and foreign investments. He assures that his style as a lawyer is more of an arbitrator rather than combative. “I like to get to the point and I don't like “beating about the bush”, he revealed. On the other hand, he went on to be part of the select list of honorary members of the AIPPI. Marcasur interviewed him and asked him about this and more. If there is something that makes you stand out today it's your honorary membership in the AIPPI. What are your comments on this? It was a surprise and a great honor indeed. To receive a distinction of this nature from your peers makes it even more special. When does your membership with the AIPPI start? I've been a member of the AIPPI for over 30 years. I have actively worked on various commissions and attended nearly all of its annual meetings. The members of G. Breuer have always been a part of the AIPPI, with whom they have
There have been 47 honorary members chosen by the AIPPI since 1982 and two honorary presidents named in 2000: Geoffroy Gaultier, of France, and Martin J. Lutz, of Switzerland. Of the 47 members of the select list, five are South American. They are: > 2010 Jorge Otamendi (Argentina) > 2000 Gert E. Dannemann (Brazil) > 1998 Luiz Leonardos (Brazil) > 1985 Peter D. Siemsen (Brasil) > 1982 Federico J. L. Zorraquin (Argentina)
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«THE TRUTH IS THAT I ALWAYS LEARN SOMETHING NEW AND I'M EASILY SURPRISED WHEN I SEE THAT THERE ARE CASES THAT SEEM INCREDIBLE»
always worked. And who would you highlight as your biggest influence in the association? I'm not sure if influence, but I have met many worthy people, whose opinions and criteria I've always thought of as being top level and sensible. I'll name one so as not to look bad: Geoffroy Gaultier. How would you define the AIPPI? The AIPPI is the most important organization of its type that exists in relation to intellectual property. It has an extraordinary academic level and the good thing is that anyone willing to participate can do so. The AIPPI is an extraordinary environment to study and learn, and at the same time keep up to date with what's going on in the world with regards to this subject. What can the Latin American professional expect from an association such as the AIPPI? And vice versa? My advice to Latin American professionals is to participate in the different AIPPI commissions and issues. It requires effort, but the intellectual return is of great value. The participation of Latin Americans is essential for the AIPPI. Points of view will expand. Generally, they are mainly from developed countries, and a different situation not known outside of our countries will be seen.
Let's talk about the firm that you have been a part of for 30 years and the path of your professional career. G. Breuer was founded in 1869. From that instant up until now, what aspect would you point out? The most noteworthy of this office is that in all these years, nearly 142, it has offered a great quality service and is very well renowned. There can't be many enterprises where six generations of the same family have worked (me being the fifth), maintaining a good level of quality because a high level of professionalism has always been demanded of anyone who has worked here, providing a great environment in which to do so. Could you tell us about the firm's future objectives? The objectives are to always maintain that level of quality, permanently work on modernizing technology and, in this sense, we want to eliminate the use of paper and computerize everything possible. And consolidate the general law department, which we opened only a few years ago.
Within your professional career, what was the best lesson you learnt? I don't think that one has been better than another one that deserves mentioning. The truth is that I always learn something new and I'm easily surprised when I see that there are cases that seem incredible. M
«THE AIPPI HAS AN EXTRAORDINARY ACADEMIC LEVEL AND THE GOOD THING IS THAT ANYONE WILLING TO PARTICIPATE CAN DO SO»
And how are you as a lawyer? You'd have to ask my colleagues and clients about that. What I can say is that I try to avoid trials. My strategy as a lawyer is more of an arbitrator rather than combative, although you can't always avoid confrontation. On another matter, I like to get to the point and I don't like “beating about the bush”.
WHEN LESS IS MORE Otamendi works 7-8 hours a day at the firm and seldom takes work home with him. “I don't have much faith in people who work 12 hours a day. Either they waste a lot of time or they have such a heavy workload that they eventually burn-out”, he explained. Since he teaches classes in the university, he commonly writes academic papers and is in permanent contact with younger law students. He always insists the same thing with young attorneys who come to work in his firm. “First, they have to read, study old and new authors and national and international rulings. I also tell them that they have to have a method for presenting a case. An organized presentation is essential for capturing the reader's interest. Something short and succinct is much better than a long and generally repetitive presentation.” He also adds “in most cases, when one writes a lot, it is because he's not right.” He does not think that younger generations have virtues that prior generations did not. “They are obviously better prepared to deal with technological changes than people my age are, but I don't think that's a virtue. It's just a necessary adaptation to something new.” In his free time he plays squash and golf and reads as much as he can. His best hit depends on the day, “maybe I'm more consistent with the putter” he admits. Right now he is reading Les Miserables by Victor Hugo. “If you are properly organized, there is time for everything.”
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Feature Article
KICK OFF IN 1892, IN THE GREEK CITY OF OLYMPIA, THE OLYMPIC GAMES AS WE NOW KNOW THEM TOOK PLACE FOR THE VERY FIRST TIME. NO ONE COULD HAVE IMAGINED BACK THEN THAT THE FIRST STEPS TOWARDS PROFESSIONAL SPORTS WERE BEING TAKEN WITH THAT EVENT, AND LEAST OF ALL THAT THE SAME EVENT WOULD BE PART OF A BUSINESS THAT GENERATES BILLIONS OF DOLLARS A YEAR AND WHERE THE LAW IS INCREASINGLY PLAYING A MORE PREDOMINANT ROLE.
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That's right, we're talking about sports, synonym of exercise and a healthy life style for some, passion and emotion for so many others, and dollars and business for a privileged few.
other, with the same principles, strategies and interests. And the same conflicts arise in it, too. The only exception and difference in relation to other businesses is that it involves not only money but passion in most cases.
Sports as a Business
Sports Law. Like any other activity, sports are regulated under the law. According to information published by the Latin American Sports Law Association (ALADDE) on its website, there has been a considerable number of legal experts who have found themselves in recent years in the dilemma of having to determine whether sports law is an independent type of law or whether it stems from other independent branches within the commercial, labor or fiscal disciplines that adapt to the peculiarities of sports law.
As a professional activity, sports have evolved into a global business over the last few decades. What fans watch on television or in the sports-related scenario, are the athletes and the game or competition. But behind what you see on the field, there is an enormous amount of players and side businesses, the majority of which are unknown to the common fan. League and conference directors, team owners and directors, agents, business men, owners of different multinational businesses and companies, global broadcasting networks, fans and even the young man that sells the burgers at the stadium are some of the players in this business. Merchandising, sponsorship, trade mark licensing, buying and selling image rights, static and digital advertising, ticket sales, passes and boxes, broadcasting, etc. are just some of the many businesses that sports generate. It's an interdisciplinary business in which the main disciplines of the business world take part: management, marketing, finance, information technologies, administration, economics, legal affairs and more. This business is run, operated and administered like any
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Others, however, sustain that the peculiarities of the relationship between a professional athlete and the club or the existence of specific laws for sports activity determines that we are facing a specific sports legal system, which is independent and includes in addition to state laws, all the provisions contained in bills and regulations of national and international institutions. More than just indoctrinated considerations, the reality and the facts show that there are a n e v e r growing
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number of lawyers and law f i r m s specializing in t h i s m a t t e r. There are many confederations and clubs who have lawyers among their ranks that are specialized in sports law, or at least specialized in some area of law that is closely linked to professional sports. But there are also many law firms that began to specialize in sports law. These firms offer, among other things, advisory services relating to sponsor and merchandising agreements, sports contract drafting, advertising agreements and image rights protection, assignment of economic and registration rights of athletes, sports corporation, litigations and disputes where athletes and sports institutions, third parties, sports refereeing, doping, among others, are involved.
Intellectual Property in sports. In this context, intellectual property has become a legal discipline of singular and fundamental importance in the sports business. Athletes, clubs, teams or franchises, and organizations such as FIFA, PGA or NBA, acquire a great share of their revenue through the exploitation of their intellectual property rights by means of merchandising, brand licencing, buying and selling
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image rights, advertising, sponsorship and broadcasting. As an example, and to show the importance of exploiting IP rights in sports in figures, let's see the Real Madrid Club de Fútbol case. The renowned club earns 42% of its income from merchandising and sponsorship, and 24% from television rights sales. Another interesting case is that of the Swiss tennis player Roger Federer who has an annual income reaching 35 million dollars through advertising agreements with brands such as Nike, Credit Suisse, Gillette and Mercedes Benz, among others. The legal advice that intellectual property lawyers can provide is ever more important so that these rights are not infrwww.marcasur.com
-inged and the income does not drop. This is why it is increasingly more common for players in the sports industry to have intellectual property specialists on their side. For Alberto Guerra, a Brazilian IP attorney and ex-vice president of Gremio Foot-Ball Porto Alegrense, the role of an IP attorney in sports is fundamental. “IP assets are great revenue generators for the clubs and knowing how to manage all the IP rights involved with a large club (trade mark, image, anthem, television rights, etc.) can make a huge difference in such a competitive market, where a slight improvement can make a big difference”, he told Marcasur. He added that “IP firms are focusing more and more on sports because of the club's interest or the lawyer's passion for his favorite team”. In turn, Lorenzo Litta, an Italian lawyer specializing in this area, states that “By not applying intellectual property in sports, there is no evolution in the sports business. Thinking about what Nike did with Michael Jordan goes to show how intellectual property helps transform the athlete-client into an asset and allows adding excitement to the brand”. Litta highlights: “The main players in all sports also need to be advised in IP matters for each contract and, on occasions, IP lawyers can be as important as the very agents. It's no coincidence that in the American Sports Lawyers Association, where the biggest agents of the NBA, NFL, MLB and NHL are, there are also IP lawyers from all over the world”.
No one wants to be left out. Lawyers and law firms don't want to be left out of the world of sports, neither do universities and associations. Knowing that there is an increasing number of lawyers that want to specialize in sports law, many universities offer post graduate and master's degrees on the subject. Take for instance the case of the FIFA Master, which has a four month module dedicated to sports law. ISDE (Higher Institute for Law and Economics) in Madrid offers an LLM in International Sports Law. The International Centre for Sports Studies-Centre International d'Etude du Sport (CIES) in Switzerland has the LLM Master (MAS) in management, Law and Humanities of Sport. UCLA, Stanford, Columbia and Loyola also offer master's degrees with a considerable focus on intellectual property in sports and entertainment. Meanwhile, the associations are also aware of this phenomenon and they see it as a discipline that can attract new associates and give incentives to the already existing ones. In February 2011, in Rio de Janeiro, the IBA held the Olympic-Size Investments: Business Opportunities and Legal Framework Conference, while the INTA and ASIPI jointly held the conference “Trademarks in the Sports and Entertainment Worlds: The Business of Making Money” in San Juan, Puerto Rico. We are witnessing a growing trend combining two passionate activities. We still don't know where one merges with the other. The field is there, so are the players. It's time for kick off!
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Feature Article
FORBES PUBLISHES THE 2010 FORBES FAB 40, LISTING THE 40 MOST POWERFUL BRANDS IN THE WORLD OF SPORTS. IN THIS REPORT, MARCASUR PRESENTS THE RANKING DIVIDED INTO FOUR CATEGORIES: BUSINESSES, EVENTS, TEAMS AND ATHLETES.
THAN TRADEMARKS It is very easy to see the international relevance acquired by sports as entertainment and especially the relevance acquired by its most noteworthy feature, i.e., the billions of dollars that this powerful industry moves. On and off the field and in equal measure, everyone is competing for brand recognition and to seize at least a small part of this billionaire industry. A brief glimpse at the second ranking made by Forbes, which can change the future of a brand, reveals the value of sports brands. To make the list, the magazine analyzes the different categories in terms of capital accumulated by each brand over many years. The 40 most valuable brands are listed below.
Table I. Top 10 sports companies 1. Nike, US$ 10.7 billion 2. ESPN, US$ 10.5 billion 3. Adidas, US$ 7.3 billion 4..Gatorade, US$ 6.4 billion 5. Reebok, US$ 2 billion 6. Sky Sports, US$ 1.3 billion 7. EA Sports, US$ 770 million 8. Under Armour, US$ 530 million 9.Yes, Network US$ 525 million 10.IMG, US$ 400 million
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Table II. Top 10 sporting events 1.Super Bowl, US$ 420 million 2. Summer Olympic Games, US$ 230 million 3. World Cup, US$ 120 million 4. European Championships, US$ 110 million 5. MLB World Series, US$ 105 million 6. Daytona 500, US$ 100 million 7. Winter Olympic Games, US$ 93 million
The most valued. Nike is the most valued sports brand, with the chilling figure of 10.7 billion dollars. When it comes to sporting events, there is no greater valued show than the Super Bowl. The American Football event is one of the most watched sporting events worldwide (about 150 million spectators) and has a brand value of 420 million dollars. Television broadcasting, sponsorship, licensing income and tickets sales. The cheapest seat is 500 Dollars and is almost impossible to get (less than 1% of the tickets are sold to the public through a potluck draw). In spite of the power of Spanish football, with teams such as Real Madrid, the most valuable team is Manchester United, with a brand value of 270 million dollars. Tiger Woods sits in first place among the athletes: his brand value reaches 82 million dollars. Last year he earned 105 million dollars from his sponsors, which include Nike, Electronic Arts and Gillette. In any case, he still earns enough to remain the highest paid athlete of 2010.
8. NCAA Men's Final Four, US$ 90 million 9. MLB All-Star Week, US$ 75 million 10. Kentucky Derby, US$ 67 million
Table III. Top 10 sports teams 1. Manchester Utd, US$ 270 million 2. New York Yankees, US$ 266 million 3. Real Madrid, US$ 245 million 4. Dallas Cowboys, US$ 208 million 5. Bayern Munich, US$ 200 million 6. Arsenal, US$ 195 million 7. Milan, US$ 175 million 8. Barcelona, US$ 170 million 9. New York Mets, US$ 159 million 10. Boston Red Sox, US$ 157 million
Table IV. Top 10 athlete brand 1. Tiger Woods, US$ 82 million 2. David Beckham, US$ 20 million 3. Roger Federer, US$ 16 million 4. Dale Earnhardt, Jr., US$ 14 million 5. LeBron James, US$ 13 million 6. Kobe Bryant, US$ 12 million 7. Phil Mickelson, US$ 10 million 8. Maria Sharapova, US$ 10 million 9. Tony Hawk, US$ 9 million 10. Jeff Gordon, US$ 8 million
Source: Forbes. www.marcasur.com
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Column: Law and sports
AMBUSH MARKETING
BIG SPORTING EVENTS, SUCH AS THE OLYMPIC GAMES AND THE WORLD CUP, ARE HUGE GLOBAL BUSINESSES GENERATING ASTRONOMICAL INCOME FOR THEIR ORGANIZERS. A LARGE PERCENTAGE OF THIS INCOME COMES FROM SPONSORSHIP AND ADVERTISING AGREEMENTS.
The most famous multinationals compete for the official sponsorship of these events. Those that succeed invest large sums of money. Generally speaking, each category of products or services has an official sponsor. For example, in the last World Cup in South Africa, the official airline was Emirates, the official soft drink was Coca-Cola, and the sportswear was Adidas. Nevertheless, this isn't a reason for the competitors of these brands who aren't official sponsors to be persuaded to be left out of the enormous exposure that a sporting event of such magnitude can mean for their brands. 28
They take part, of course, before, during and after the event, and in many cases through even more innovative marketing strategies which in many cases have an even greater “dramatic effect� on the public than the official sponsors' campaigns. This is where ambush marketing makes its appearance. It is a concept and activity that is incessantly mentioned during these mega-sporting (and entertainment) events and claims a starring role. Ambush Marketing can be defined as any marketing campaign that looks to capitalize on the fame of an event (to obt-
tain a profit) by means of an unauthorized association with it (without having an official or direct connection to the event). It is also any marketing campaign that looks to capitalize on the fame and the attention of being illegally associated to an event (sporting events, musical events, etc.). These marketing campaigns have certain effects, negative for some, while positive for others. Those opposed to ambush marketing point out that these campaigns reduce the value of the official sponsorship of major events because they help other companies associate themselves with it and take www.marcasur.com
F i g h t i n g a g a i n s t The first and last famous ambush marketing acts ambush marketing
advantage of the organizational efforts of third party competitors. They reduce the effect of the sponsor's advertising message. Some go even further and point out that ambushing jeopardizes the celebration of the event. For others, those in favor of these practices, the effects of ambushing are beneficial from a social point of view. They quantify the real value of being a sponsor, are the result of the competition and improve sponsorship agreements. They also point out that there are no empirical studies that prove that ambush marketing causes any real harm to the official sponsors.
Methods used by ambushers A never-ending number of methods, actions or campaigns are used by ambushers, but that doesn't mean that new methods won't appear, as pointed out by sports law and IP specialists at the San Juan conference: “There is always a new and more innovative action than the previous one”. It's a constant challenge for lawyers to foresee and identify them. A study by the Universidad Pompeu Fabra law school, conducted by José Piñeiro Salguero and Antoni Rubí Puig, classifies these types of activities: - Unauthorized use of tickets in a promotional campaign. - Acquisition of advertising rights on the same television channel which is broadcasting the sporting event right before, right after or during the event. - Coming up with advertisements on dates close to a sporting event in which well known athletes associated with the event appear. - Sponsorship of a national team or of individual athletes. - Sponsorship of the television channel broadcasting the event. - Publishing unofficial web pages of the events or registering domain names related to an event or athlete. www.marcasur.com
For some, ambush marketing is an illegal, parasitic or unethical activity; for others, it's aggressive but legal marketing since it involves paying the royalties associated with advertising agreements. Despite this debate and possible future legal rulings, there are a series of mechanisms or actions that tend to fight against ambush marketing from a legal point of view. The study conducted by the Universidad Pompeu Fabra presents a series of “available remedies to fight against ambush marketing”. Those “remedies” that stand out are provided for under the unfair competition and advertising laws, intellectual property law and, in common law, under the law of passing off, preventing a third party from benefitting from the fame of a trade mark without any type of contractual link or authorization. One of the most common remedies for fighting against ambush marketing is to optimize official sponsorship agreements. In this practice, the space that can be used by competitors is reduced, and clauses are included in agreements whereby organizers of the sporting event undertake to prevent ambush marketing. I n a d d i t i o n , t h e o rg a n i z e r s o f international events consider that the most effective method is self-regulation and the implementation of a global program of the intellectual property rights which they hold and can only be used by the official sponsors. For e x a m p l e , F I FA established a Right P r o t e c t i o n Programme in 2006.
1984 Los Angeles Olympic Games. On this occasion, Kodak launched a series of advertising campaigns on the market which suggested that Kodak was the official sponsor of the Olympic Games when they were not. Kodak sponsored the television broadcast of the games as well as the U.S. Track and Field team, despite Fuji being the official sponsor of the Olympic Games. Fuji returned the favor or strategy a few years later at the 1988 Seoul Games when Kodak was the official sponsor. 2010 World Cup, South Africa. At the Holland v Denmark match, during the first half of the game photographers and cameramen primarily focused their attention on a group of 36 very attractive blond female Dutch fans that constantly cheered on their team. At half-time, 40 security guards, ordered by the FIFA, forced the women to leave the stadium. They were accused of unauthorized advertising because by wearing the orange outfit they were theoretically sponsored by Bavaria beer. The official World Cup beer, however, was Budweiser. How did these women differ from other apparently similar groups, all dressed in orange, when you could hardly read the brand name on their outfit? The FIFA authorities explained that “If you knew the advertising campaign that this brand of beer has made in Holland, you would have instantly recognized it. It was very obvious. Take a look on YouTube and you will quickly realize it”. In the end, FIFA dropped the charges after reaching an agreement with the Bavaria Company. M
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Events
2011 INTA-ASIPI CONFERENCE
IP WITH A SPORTING SPIRIT
A THREE DAY IMMERSION WAS ENOUGH TO BRING TOGETHER MORE THAN 250 PARTICIPANTS, MAINLY LATIN AMERICANS BUT WITH AN IMPORTANT AMERICAN AND EUROPEAN PRESENCE, TO THE TRADEMARKS IN THE WORLD OF SPORTS AND ENTERTAINMENT CONFERENCE. THE BUSINESS OF MAKING MONEY, ORGANIZED BY INTA AND ASIPI, AND HELD IN THE BEAUTIFUL CITY OF SAN JUAN, PUERTO RICO. 46
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Friends, Manuel Pittaluga (Marcasur, Uruguay), Martin Pittaluga (Pittaluga Abogados, Uruguay), Francisco Espinosa Bellido (Estudio Francisco Espinosa Belido, Peru) and Jeff Snell (Charles River Associates, USA)
This conference was held on March 19th-21st at the Conrad Condado Plaza Hotel. As its name suggests, it was focused on the increasing impact and involvement of intellectual property in the world of sports and entertainment.
Cocktail party. Sabrina Nakano and Eduardo Fonseca (Moffat & Co/ Macera & Jarzyna, Canada), Todd A. Denys (Porzio, Bromberg & Newman, USA) and Robert Shepher (Porzio, Bromberg & Newman, USA)
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Paradise. Joana Siqueira (Montaury Pimenta, Machado & Vieira de Mello, Brazil), Magali García (Allende & García, Peru) and Virginia Cervieri (Cervieri Monsuarez & Associates, Uruguay)
IP Veterans. Horacio Rangel-Ortiz (Rangel & Rangel, Mexico), Peter Siemsen (Dannemann, Siemsen, Bigler & Ipanema Moreira, Brazil), Ramiro Moreno Baldivieso (Moreno Baldivieso Attorneys at Law, Bolivia) and Santiago O'Connor (Marjal, O'Farrell & Maizal, Argentina)
Elegant stroll. Beatriz Ayala (Ayala & López Abogados, Venezuela), Maricruz Villanea (Ideas patents & trademarks, Costa Rica) and Ana Isabel Messina (Biaggi & Messina, Dominican Republic)
From Central America, María Eugenia García (Jarquin-García, Nicaragua) and Edy Portal (Portal & Asociados, El Salvador)
The academic sessions took place during two full days, from nine in the morning until six in the afternoon. They included breaks for lunch and for having a coffee with colleagues. The lecturers spoke on: the increasing value of trademarks by means of licensing, franchises and sponsorships; the protection of peoples' image rights as trademarks; copyrights and advertising; and ambush marketing. It's important to highlight the excellent level of the Latin American, European and American speakers. The presence of Mark A. Roesler, Anthony V. Lupo, Axel Nordemann, Alberto Guerra, Lorenzo Litta, Ronald A. Crawford, Anna Ostanina, Ricardo Antequera Parilli, stood out among other renowned experts on the topic. IP Rookies. Roberto Ledesma (EverythingTrademark.com, USA) and Julian F. Wachinger (Rwzh Rechtsanwalte, Germany) 32
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The Hoglund & Pamias firm of Puerto Rico put on an enjoyable cocktail party on Sunday afternoon at the San Juan Yacht Club. The firm's staff: Jaime A. López, Roberto J. Ríos, Jean A. Hernandez, Nahomy C. Vélez, Aixa Y. López, Aileen E. Vázquez and Samuel F. Pamias.
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The firm Guerrero-Noble, Pérez-Orama & Guerrero-Calderón, put on an elegant reception at the La Concha A Rennaissance Resort Hotel. The hosts, young Ricardo Pérez Ortíz, Vivian Ortíz Ponce, Arturo Pérez, Jorge Luis Guerrero, Belén and Arturo Pérez Orama.
The social events weren't missing from the meeting. The welcoming reception was held at the Conrad, as was the great final event, which closed the conference with dinner, music and dancing included. The local firms Guerrero-Noble, PérezOrama & Guerrero-Calderón, Hoglund & Pamias, P.S.C., and Ferraiuoli LLC, held very entertaining receptions. There wasn't much time to visit the city, but a few hours were enough for those present to delight in the beauty old San Juan. M
Caribbean spirit. Renzo Scavia (Scavia & Scavia, Peru), Sergio Ellman (Marval, O'Farrel & Mairal, Argentina) and Paola Scavia (Scavia & Scavia, Peru).
Executive committee. María Pilar Troncoso (Troncoso & Cáceres, Dominican Republic) and Juan Vanrell (Bacot & Bacot, Uruguay). 34
Happy faces. Jacqueline Moreau (Torres, Plaz & Araujo Abogados, Venezuela), Sylvia Ruiz (Ruiz-Skinner-Klee & Ruiz, Guatemala) and Ileana Martinelli (Arias, Fabrega & Fabrega, Panama) www.marcasur.com
BRIC IP FORUM (BIPF) RĂ?O DE JANEIRO
Pleased to meet you. James W. Edmonson (Finnegan, Henderson, Farabow, Garrett & Dumner, USA) greets Zhonggi Zhou (CCPIT Patent and Trademark Law Office, China). Rana Gosain, of Daniel Advogados, introduces them.
THE NEW GIANTS
C r i s t i a n e Vi a n n a (Daniel Advogados, Brazil), Sangeeta Savan and Neha Srivastava (Remfry & Sagar, India)
talk about THE BRIC IP FORUM (BIPF) MET IN RIO DE JANEIRO FROM DECEMBER 2-4 OF LAST YEAR AT AN EVENT ORGANISED BY THE FIRM DANIEL ADVOGADOS.
IP
By Juan Pittaluga BRIC is the abbreviation that identifies four giants, Brazil, Russia, India and China. It was thought up in 2004 by Jim O'Neill, of Goldman Sachs. This economist understood they would surely be the four dominating powers in 2050, with 40% of the world's population and a GDP of around US$10 trillion. The group has nothing formal signed so it doesn't introduce itself as an organization. Nevertheless, conferences and forums of diverse activities are held with the BRIC acronym. 35
In 2008, the Indian office Remfry & Sagar, through its principal Dr. Vidya Sagar, thought it convenient that these four countries should talk about common IP-related topics. In order to do this he invited offices from the other three countries. Gorodissky & Partners, from Russia, Daniel Advogados, from Brazil and CCPIT Patent and Trademark Law Office, from China. The first meeting was held in India in 2008, with around 50 people present; the following year in Beijing with around 70 people present and from December 2-4, 2010 the meeting was in Rio de www.marcasur.com
Janeiro with more than 100 attendees. The event in Rio de Janeiro was organized by Daniel Advogados. The organisation stood out because of its efficiency and the kindness with which the attendees were welcomed. During the two days, intellectual property topics of
Wilfrido Fernández (Zacarías & Fernández, Paraguay), the hosts Denis Daniel, Alicia D. Shores and Vladia Daniel and Vidya Sagar (Remfry & Sagar, India).
Aleksey Zalesov (Sojuzpatent Ltd, Russia) and Richard Yi Li (CCPIT Patent & Trademark Office, China)
Alexey Kratiuk (Gorodissky & Partners, Russia), Phil Wadsworth (Qualcomm Inc., USA)
Richardo Richelet (Richelet & Richelet, Argentina), Crystal A. Gothard (Caterpillar Inc., USA), Alicia D. Shores (Daniel Advogados, Brazil), Humberto Pereira (Hasbro Latam)
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The president of the National Institute of Intellectual Property (INPI, Brazil), Jorge ﾃ」ila, speaking at his conference on the role of an IP office in emerging countries.
interest for the four countries and a lot of valuable information were exchanged. Brazilian IP professionals and IP authorities were there, which allowed for dialogue as fluid as it was interesting. Without a doubt, it was a novel initiative that will serve first to learn about the advantages and disadvantages of the different practices of each one of these four countries that are gaining increasing importance in the global economy, to later try and coordinate an IP legislation between them. This forum isn't solely limited to nationals or professionals from these four countries. In fact, it is open to the rest of the countries that would like to learn more about IP practices in the BRIC. For the event in Rio de Janeiro, Daniel Advogados invited different professionals from Latin America and the United States to participate. In short, we attended an interesting experience that we hope will continue to assert itself in the international IP world and we suggest to readers that they go to Moscow next year. For our part, we would like to thank the friendliness with which we were treated at all times by the Daniel Advogados team, starting with the main partner Denis Allan Daniel and his wife Vladia Daniel. M
Rodrigo Bonan de Aguiar and Ricardo Pinho of Daniel Advogados, together with some of the panellists of the Latin American IP Forum, Virginia Cervieri (Cervieri & Monsuarez, Uruguay), Rodrigo Marrﾃｩ (Makenna, Irarrﾃ｡zaval, Cuchacovich & Paz, Chile) and Ian Raisbeck (Raisbeck, Osman & Castro, Colombia)
Inaugural panel. Denis Daniel (Daniel Advogados, Brazil), Vladimir Biriulim (Gorodissky & Partners, Russia), Vidya Sagar (Remfry & Sagar, India) Zhonggi Zhou (CCPIT Patent and Trademark Law Office , China, Rana Gossain (Daniel Advogados, Brazil).
General view of the conference. 37
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opinion
The Halting of Free Circulation of Counterfeit Brand Goods in Mexico Carlos Henรกndez Becerril, Coca & Becerril, S.C.
The Intellectual Property Law (IPL) and the Customs Law in Mexico have established an administration procedure to avoid the introduction of counterfeit goods detected by customs into Mexican territory. With this procedure the owner of a registered trademark can request that the Mexican Institute of Intellectual Property (MIIP) order the halt of the free circulation of these foreign goods covered under a counterfeit trademark. The owner of the trademark must file a brief which meets the established requirements of the mentioned laws. The MIIP will then order the Customs authorities to halt the free circulation of this foreign counterfeit merchandise by means of an official communication which establishes the presumption that said merchandise is in violation of Intellectual Property (IP) rights. Since Customs has halted the circulation, the owner of the trademark in Mexico must file a legal infringement action before the MIIP against the importer of the counterfeit goods. In not doing so, the seized foreign merchandise would be released and the owner of the trademark would be liable for any damages sustained by the importer by having halted the circulation of the imported goods. When the owner of the trademark files this infringement action against the importer in due time and form, and the MIIP allows it, the Institute will notify the importer of its existence in order for him to reply. The MIIP will then grant both parties a period to file their final arguments before issuing the corresponding decision, whether it be finding that the importer infringed the trademark owner's IP rights, levying against him the penalizations provided for under the IPL, which may range www.marcasur.com
from a fine or administrative detention to shutting down the infringer's business, or ruling that there is no infringement. This procedure was in disuse because of the ill-timed issuing of the admission of the request for halting the free circulation of foreign counterfeit goods by the MIIP due to a considerable delay in proceedings. Consequently, the affected owners opted to file a legal action before the Office of the Federal Attorney General (PGR). However, it is only possible to file these actions before the PGR against goods which reproducing an identical trademark. Using the administrative proceeding mentioned above it is possible, on the other hand, for the owner of the trademark to halt the free circulation of goods reproducing either an identical trademark or a similar trademark which leads to confusion. This is a great advantage in comparison with the penal action submitted before the PGR. As of three years ago until today, the MIIP has substantially improved its systems and is swift in allowing a request for halting the free circulation of foreign counterfeit goods. Thus, the owners of trademarks who are the victims of infringement have since then frequently used this administrative procedure. These facts have made it one of the most effective legal solutions in Mexico to fight against the importation of counterfeit goods. Carlos Hernรกndez chernandez@bcb.com.mx Carlos Hernรกndez is a lawyer. He has a specialization and Master's Degree in International Law and a specialization in Intellectual Property Rights. He is a member of the AMPPI. He joined the firm in 2005 and has published articles in different mediums. As Head of the Department of Contentious Affairs of Becerril, Coca & Becerril, S.C, Carlos centers his practice on trademark, patent, copyright and piracy litigation, and on annulment and appeal trials. APRIL / JUNE 2 0 1 1
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opinion
Pirates, plantations, ron and reggae and what about intellectual property? Gabriela Bodden E-proint
The “modern” Caribbean has an identity molded by European traditions. In terms of intellectual property we have slowly seen changes. Certain countries have adopted updated intellectual property laws, while others still have an extremely outdated legislation. All of them have amazing beaches, rum and reggae, in common, but where does intellectual property and its protection lie? The world's border customs offices face the same dilemma: the enormous volume of imported and exported goods through international trade. Commercial agents trust that the border customs authorities actually process their requests swiftly and at the same time apply the law rigorously in terms of protecting their interests and safeguarding the citizens' health. The holders of these rights in turn wish that border customs officers have sufficient IP knowledge. Customs is the first authority to come into contact with the goods, so knowledge in intellectual property is vital in customs officers to prevent the violation of intellectual property rights before putting the goods into circulation on the national market. The implementation of measures at the border and the seizure of pirated and counterfeit goods are possible in countries such as Barbados, Jamaica, Trinidad, Dominican Republic and Cuba, where the progress in intellectual property and its relationship with customs have developed enormously. However, the rest of the Caribbean countries are far from seeing the light, since proof of infringement is required in many cases before customs can take any action and, by the time this happens, the goods have already been nationally distributed. Customs officers in most countries generally lack understanding in IP issues and in most Caribbean countries, the international classification of goods established by the World Customs Organization is not applied. In Aruba, Curacao, Dutch Caribbean, Saint Maarten and Jamaica there is no customs trademark register (as there is in the vast majority of Caribbean islands); nevertheless, customs authorities are ready to take action if they www.marcasur.com
have been “previously” notified of the arrival of counterfeit goods. The lack of a customs register of trademark owners, which would allow customs officers to be more vigilant when inspecting imports and correctly discerning if the goods are originals or counterfeit, is detrimental to protection in the Caribbean. The option of an intellectual property customs register should be an option for those holders of rights wishing to obtain extra protection and for which they should pay a respective fee to customs authorities. Said IP register should be implemented in the Caribbean, since it would be very useful in order to identify the owners or distributors of certain goods. The latter would be a basic tool for adopting border measures favoring the intellectual property rights holder, such as for halting of the act infringing intellectual property rights: the importation of counterfeit goods, understood as being any type of merchandise consisting of a mere reproduction of the sign, eliminating a part or one of its elements or modifying any of the graphic or word elements; or for the importation of pirated merchandise which are detrimental to owners' rights, i.e., copies made without the consent of the owner or person authorized by them, in the country of production.
Gabriela Bodden works in E-proint's International Intellectual Property Department, primarily focusing on trademark, copyright and patent issues, and on IP-related legal disputes. She has extensive experience in managing complex intellectual property portfolios in Latin America and the Caribbean covering topics such as trademark background searches, trademark applications, the maintenance of trademark registrations, legal advice in IP-related contracts; advising in piracy issues and related strategies. Her e-mail address is gbodden@eproint.com APRIL / JUNE 2 0 1 1
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You have the floor
The Community Patent and the discrimination of Spanish With France and Germany at the forefront, a group of European Union countries has started proceedings to create a community patent where the only recognized languages are English, German and French by way of the reinforced cooperation system (a system used so that a group of countries can move forward with an issue without counting on the rest), discriminating against Spain and the Spanish language. The European Commission wants a competitive and economical community patent system to compete with the United States and Japan, so Spain suggested only the use of English, something which neither France nor Germany have accepted, obliging everyone to translate patents into French and German. Agreeing with the industry, I'm in favor of having a Community Patent that allows companies to unify the application and registration system under one title reducing translation and maintenance costs. However, having ruled out an English only system, Spain should not enter into the Community Patent if Spanish (and Spanish companies) is not given the same rights as German and French. Both the PSOE and PP (the two major political parties in Spain) agree on this subject and refuse to accept the entry into the Community Patent System imposed by the French-German axis. This will not, however, hinder Spanish companies from filing patents within this system and being guaranteed equal conditions and protection. Is it not logical that a valid patent in Spain should not be translated because it involves a larger increase in costs regard-
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ing time, R&D, and translations than the current ones to the Spanish companies in order to access the more relevant technological information that affect them and which is intended to take legal effect in Spain. These costs will increase yearly as the technological documentation also increases. We must not forget that there is a clear relationship between competitiveness and the level of technology of a country and the capacity of its productive structures to access and quickly and efficiently analyze the technological information. Another important point is that the only legally valid texts will be those of these three languages and Spanish companies will have to rely on lawyers located in said countries, with the additional legal and opportunity costs that it entails. If there are already foreign companies threatening Spanish companies with infringing a valid patent concealing the fact that there are pending appeals in the EPO and amended versions, in the event that Spanish is not accepted as a language for the Community Patent the whole scenario will become even darker and it will be even easier to make fun of the mil-
lions of small and medium sized Spanish enterprises under the threat of high legal costs that this system will mean for them. Summing up, accepting a Community Patent System where Spanish is not recognized as a technological and legal language of disclosure would mean further distancing our country from the leaders of Europe in terms of competitiveness, erode the interests of Spanish speaking countries, as well as lose influence and international political presence, since Spanish is spoken by more than 450 million people. We cannot afford to be disrespected like that.
Pepe Isern Jara
Pepe Isern Jara Date and place of birth: Barcelona May 14, 1973 Nationality: Spanish Profession: Intellectual Property Lawyer Academic background: Bachelor of Laws and Attorney.
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Lawyers in their spare time
MARCASUR PRESENTS TWO LAWYERS WITH INFECTIOUS ENTHUSIASM AND AN AMBITIOUS PLAN IN THEIR SPARE TIME.
Roberto Romero Pineda, from El Salvador, was born on a "5 april.com", according to what he tells Marcasur. Lawyer and notary. Partner at Romero Pineda Abogados from El Salvador. This picture takes place during the concert of the release of his third CD, La Ăşltima piedra, on the occasion of celebrating 30 years of the firm's founding at the Marte Museum.
MUSIC &SEA Swimming and nothing else.
Miguel Bernardo O'Farrell, Argentine, 71. Lawyer and industrial property agent. Partner at Marval, O'Farrell & Mairal of Argentina. In this picture he is doing a warm-up before competing in the Club Nautico de San Isidro. 44
Miguel O'Farrell is part of a select team of swimmers at the Jockey Club of Buenos Aires, called Los Inefables. The first time he was conscious of his potential as a swimmer, although he did not state this out of modesty, was in 2009 when Alex Freeland, captain of Los Inefables, offered him going to Velez Sarsfield to compete in the category of promotional at 50 meters in freestyle and breast. "My debut could not have been more disastrous, because in the first one I lost my balance and plunged ahead of time, whereupon I was disqualified! However, to the surprise of all and me in particular, I won the second, which involved much younger swimmers. www.marcasur.com
They are the champions. Miguel (the first standing left) and the Los Inefables team of the Jockey Club of Buenos Aires.
In this light, Los Inefables told me to go federate, to which I agreed meekly", he recalls. A sporting competition is always interesting. After that background, the swimming competition continued with a vengeance. The first was as federated in the Buenos Aires Metropolitan Championship at the Club Atletico Independiente, where he won the 100 freestyle in the 70-year-olds' category with a time of 1'33. "I was all but catapulted by Los Inefables to participate in many other competitions and have not stopped", he admits. He remembers having competed in the river Areco in San Antonio de Areco: "At the start I had to swim with my heart and soul to get away from the kicks and slaps of the two hundred or more swimmers, until at one point I was without air and I thought I would drown there in the dark waters of the river, but fortunately I started swimming on my back till the end". Perhaps the most audacious one was the race in Mar del Plata, in February 2010: he swam from Playa Varese to Playa Grande, 2.5 km! Summing up, he remembers that since childhood he liked to swim in the sea and swimming pools, and even competed in an intercollegiate event when he was in high school in St. George's College in Quilmes, Buenos Aires. "Over time and after leaving other sports like rugby and soccer, I began to swim in the pool of the Buenos Aires Jockey Club, simply as an exercise and as they say, "to feel good". He tries doing it every day, at least half an hour, under the direction of Professor Diego Tricarico in the indoor pool at the Jockey Club, on Avenida Alvear and Cerrito. The styles that he likes are freestyle, chest and back, "and now I'm www.marcasur.com
practicing butterfly, because I want to compete in combined races", he adds. "As training is often hard and I find pools monotonous, I bring someone special to each swim (spouse, children, friends or whatever), so that it becomes more bearable and I have the feeling of making better time". He adds: "because swimming makes you feel good, it has a positive influence on all our activities, including our profession". Which is a lot. In the last Argentinean Masters Swimming Championship, he won three of six races came second in the other three.
The music inside. Some friends tell him: "I wonder if you will be remembered as a good lawyer or as a singer". The fact is that Roberto Romero Pineda has divided his life between the practice of the law and singing. "I am an amateur, someone who enjoys singing, a hobby", he tells Marcasur. His interest in music began in high school when he easily remembered the lyrics and music of the songs. Later, at Law School, "a schoolmate kept his guitar in the trunk of the car and we used to serenade our girlfriends", he recalls wistfully. Since then, "I carry the music inside, my mind flies and I feel very well", he says. He is second tenor and through vocal exercises, which include musical scales, emission of vowels, consonants and breathing exercises, he works his voice. "This requires hard work and dedication", he adds. Before each concert he warms up his voice. "It is very important to be relaxed, not eating a heavy meal an hour before each concert, or drinking lots of water", he says. The romantic ballads and Mexican music
are his favorites, especially the boleros rancheros accompanied by mariachi. He likes the songs of Vicente and Alejandro Fernandez, Luis Miguel, Pepe Aguilar, Julio Iglesias and others. For twenty years he has been in a guitar group led by Professor Eduardo Ponce. Every four months they give a show, and in December a farewell one. Dressed in their best, they interpret many different melodies. "The hosts offer delicious meals, fine spirits and there is a great friendship there", he adds. He has recorded three CDs and each has been a long road. "It starts with the selection of songs, orchestral accompaniment, recording, mastering, printing covers, and ends with its launch. And it takes about nine months. Remember that I do not live off this, I am a lawyer", he recalls. For the launch of the CD he has given concerts and participated in charity and music events. In 2001, when recording the second CD with a great singer and friend, El Salvador was rocked by an earthquake, and as Emmanuel said: "everything collapsed'", he says. But the president of the Salvadoran Federation for Health and Human Development told him, "I heard the album and it is great, we will launch it". The event was a success. "We sold $70,000 (do not think just Luis Miguel did), used to build 70 houses for the victims of the Agua Agria canton of St. Vincent. If I served anything, I feel happy�, he says. He feels that his biggest success in the field of music is daily, when he gets more and more people to listen to his songs and comment them. And although all are very good, he has his favorites: Mujeres divinas; Almohada; Alma, corazón y vida; Coatepeque; Motivos; El rey in French (Le roi). The final invitation to friends is to "listening to music every day, knowing the performers, their successes, their tours�, he finishes. M
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WWW.MARCASURTRAVELLING.INFO
WELCOME TO THE
21st CENTURY BEIJING SURPRISES, STUNS AND SEDUCES. MODERN AND TECHNOLOGICAL COMBINED WITH A MILLENARY CULTURE.
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Every first trip to a different continent should be planned. Picking the cities to visit, how many days dedicated to each, the areas to stay, the hotels where to stay, the walks to take‌That's how we left for China, organized and curious. Getting to Beijing, Shanghai or Hong Kong is easy. The difficult part comes when we travel within China: agents in China book all national flights, so our local agent must communicate previously with them. The arrival at Beijing Capital International Airport (or China Gateway) is impressive due to size and technology. It's the third busiest airport in the world: it went from over 1 million passengers a year in 1978 to more than 65 million in 2009.
A guide, which is always advisable, was waiting for us in a state of the art van. He took us to our hotel, as modern as the rest of the city, whose service is fantastic: every employee speaks English and some even French and German. The fact that the hotel had an exclusive shopping center with all the European shops: Louis Vuitton, Chanel, Dior, whatever one could hope for, surprised us. It's very common in Beijing where, be it the best restaurants or the best brands, are at the major hotels. That's not the case in Shanghai or Hong Kong, where there is an abundance of luxurious shopping malls. We were told to be careful with the food, but in today's top Chinese cities the food is fabulous: the smell, the taste, the creativity and fusion are delicious and out of this www.marcasur.com
The Great Wall of China
world. The logistics of the city is also fantastic. Fast highways, incredibly wide avenues , imported vehicles, bicycle zones, wide pavements, cool parks, excellent lighting and immaculate cleanliness. It's very easy to get around in Beijing because of its grid-like design, and there are no deadend streets. In turn, the people are polite and are increasingly more adapted to western customs. Furthermore, the taxi drivers are honest‌I had to visit a colleague one evening. I thought it would be an adventure, but it was very simple! Not only do the hotels have cards with their address on them, but they translate the directions of where you wish to go and hand them back written on a card in Mandarin. So I took a taxi and handed the driver the card I had been given. My colleague's offices were the same as I had seen on the way there, a majestic, modern building covered in steel and glass with a car ramp at the entrance and an uncountable number of lifts to go up to the infinite number of floors. Buildings are expensive, that's why it's so difficult to obtain a home in Beijing: a square meter of land costs almost ten thousand dollars. What to visit? There are plenty of places to see in and out of the city. The hours fly by, the distances are long and there isn't enough time, that's why you should trust the guide, who is fundamental because of his handle on the language, his knowledge and his ability to choose. www.marcasur.com
Travelers in Tian An Men, the largest public square in the world.
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Taking a three day stay into account, we recommend: First things first, there's nothing like going to the impressive Tian An Men Square, the heart of the city. It was built in 1965 and is the largest public square in the world, surrounded by buildings and public monuments and presided over by Mao's mausoleum. It's fabulous, captivating, with giant screens at each end that show images of the most traditional places in China. The Dazhalan and Liulichang neighborhoods. You can see them by rickshaw or on foot. The oldest part of Beijing, full of narrow alleys with cafes, bars restored buildings, traditional houses (still lived in), pottery, paintings, book and lacquered paintings shops. Very attractive, it is today one of the most sought after places in which to live. The Forbidden City, an impressive piece of architecture of six palaces that dates back to 1420. It was residence to the Ming and Qing dynasties that ruled for 500 years until the abdication of the last emperor in 1912. It takes at least two hours to see it all. The Temple of Heaven, one of China's sacred monuments. Gigantic, symbolic and surrounded by immense parks, it's a
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meeting place for the inhabitants of the city who gather there in the morning to practice Tai Chi, dance, sing, play ball or play musical instruments. A typical, pleasant and fun place. Leaving the city we find the Summer Palace, the emperors' place of refuge. They would protect themselves from the stifling heat of the Forbidden City. Gardens, lakes, temples or galleries, everything is really impressive. The Great Wall of China is also outside of Beijing. I have very little to add on such an enormous construction. Its views, it's snaking through the mountain, its height and size overwhelm and take your breath away. It's the only human construction that can be seen from space. Five thousand kilometers that covers dessert, mountains and planes. It was built in each state until the unification of China during Qin shi Huangdi's rule. There are different entrances but all are between 70 and 90 kilometers from Beijing. A lovely program is to have lunch after the trip at the Kempinsky by the Wall Hotel. On the way you can pass by the Ming tombs and see the sacred path, an avenue flanked by 36 beautiful stone statues.
Where to sleep? Don't make it hard for yourself. It's the city with the largest number of five star hotels in the world. They are all fabulous and the service is impeccable, therefore there are many options. Besides, like anywhere else, you can reserve on the internet beforehand from the comfort of your own home, without the need for guides, agents or middlemen. You will always rely on a car, no matter where you stay in Beijing. We opted for the prestigious Peninsula Hotel, located in the city center. Where to go out? Beijing's night life is very lively. The most spectacular place is the Lan Club, a huge space decorated by Phillipe Starck from top to bottom. Another very popular, noisy, glamorous and big place (like everything in Beijing) is XIU, at the Park Hyatt Hotel, meeting place of the locals. The Soho area is very fun and full of different restaurants and karaokes, obviously the trend in China. We ate at Mostos, a small and informal place, but with very exotic flavors.
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The tip? You can not leave the city without trying Beijing Duck, one of china's national dishes. It's served in a similar way in the popular restaurants. You have to try it! M
The Forbidden City
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kidding but
seriously Right to Protest It's very common that when a friend, family member or colleague suffers an accident, we quickly send him optimistic messages, like “there are worse things”, “you were lucky” or “now appreciate the little things”. We carry out social obligation thinking that those simple messages will encourage the affected person to recover, but they won't be thinking the same. My cousin clumsily broke his wrist in a taxi not long ago. He received an infinite number of messages of that type. It only made him feel worse. None of them helped, or calmed his bad mood due to having a hand immobilized by a cast in the middle of summer which prevented him from driving, using his computer, combing his hair, and going to the beach. “My friends ignore the fact that I would have preferred not to have to go through this!”, he would say angrily about the rehearsed lines, scratching his bad arm with a spoon and looking with a heated expression at his children, who could swim happily in the pool. Soon after, a female friend was telling me about how some criminals violently
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snatched her purse. Even though she hadn't been seriously hurt, she had been shaken: she was ill-treated, hit and thrown to the ground. The memory stayed with her physically, in the form of bruises, but especially psychologically, as the trauma prevented her from leaving her home. Despite all this, her acquaintances would merely say: “be thankful they didn't shoot you”, “thankfully you're alright” and “they hardly got anything material from you”. Words she could not digest: “That's enough of playing it down, you should worry a little more!”, she shouted upset, cautiously watching two people walking past on the pavement through her window whilst on hold on the telephone waiting for an appointment to renew her stolen identity card. Later, after having analyzed both cases, I ask: What are we trying to do with these messages? If it's to inspire, we are mistaken. They reflect lack of interest for what has happened and an unwillingness to help. It's a text message that reads: “I don't want to hear your whining. It was nothing serious. Get on with your life.” The phrases are so common, indifferent and poorly thought through that they could also be sold at the supermarket like birthday cards are. So I think that the appropriate thing to do is involve yourself in the problem in order to understand it and then be able to help. Find out how the accident in the taxi happened, how long will the wrist take to heal, in what part of the city did they steal her purse or how does she intend to
deal with the trauma. I also think that the messages are a product of an attractive and popular type of literature with seductive titles, such as “be happy”, “enjoy each moment” or “make your problem an adventure”, that is being published. This self-help literature states that our head must transform the negative into positive. It really works very well in theory: we all read it and we feel like superheroes capable of overcoming any obstacle in the way of our happiness. But in practice, the advice is difficult to apply and don't lessen the pain, the worry or the bad mood. When we come across the problem, we sadly realize that Batman, the Hulk and Wonder Woman only exist in comics, and that the smell of sweaty plaster doesn't miraculously disappear with a laser beam shoots out from our eyes. We don't have this optimism that we look to transmit when we are the victims. We believe the messages are good when we send them but we'll realize they aren't when we receive them: it's only when we suffer the adversity that we understand that they are good for nothing except to increase the suffering. In this way, their meaning would change substantially. “No way”, I hear my cousin say with his mobile in his good hand and saying “don't worry, you'll get better soon” to someone else.
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THE HISTORY OF A BRAND
THE SECRET
OF SUCCESS T
he legend says that the most refreshing drink in the World happened by chance. Everything started one 8th of May in 1886 when Mr Pemberton made the recipe and gave it to his customers to taste. They all agreed: this new drink was something special. So Jacob's would begin selling the drink in soft drink parlors. The pharmacist's accountant, Frank Robinson, thought that two “Cs” would stand out in the advertisements, so he suggested the name “Coca-Cola”. He only sold nine glasses a day in the first year. The rest is well known history. Among its myths is the original formula. The recipe's ingredients are the best kept secret on the planet. It's said that the formula lays in a safety deposit box of the Trust Company of Georgia Bank in Atlanta and only two chemists know the secret. At least until last year, when a United States web site announced they had discovered its ingredients. According to what This American Life published, the drink's formula could be found in the photo used to illustrate an article about the history of Coca-Cola, published in the Atlanta Journal Constitution newspaper in 1979. The ingredients are as follow: 85 grams of citric acid 70 grams of water 28 grams of caffeine 28 grams of vanilla Nearly one liter of lime juice 42 grams of caramel for color A little sugar 82
DRUGGIST JOHN S. PEMBERTON, WHO WISHED HE COULD CURE HIS CLIENTS' MIGRAINES, INVENTED A FORMULA IN 1886 IN JACOB'S DRUGSTORE IN ATLANTA, GEORGIA. THIS FORMULA PROMISED TO BE “THE IDEAL NERVE AND BRAIN TONIC”. THE CARAMELCOLORED SYRUP WITH BUBBLES AND AN UNMATCHED FLAVOR WAS SOLD FOR A NICKEL A GLASS. COCA-COLA WAS BORN.
However, the most valued part is the one that details the ingredients of 7X (the code by which the recipe's secret ingredient is known by), a substance that would only represent 1% of the drink but is key in giving it its characteristic taste and is made up of: 226 grams of alcohol 20 drops of orange oil 30 drops of lemon oil 10 drops of nutmeg 5 drops of coriander oil 10 drops of bitter orange oil 10 drops of cinnamon oil Whether this is the original formula or not, Coca-Cola is the universal trademark par excellence and only they know the secret of its success. You can find the refreshing drink in the remotest corners of the world, its name is the second most known in the world and there is a Coca-Cola advertisement made every minute. That's just the way CocaCola is. M
Sources: Petites histoires de marques, by Jean Wa t i n - A u g o u a r d . h t t p : / / w w w . c o c a c o l a . c o m / i n d e x . j s p a n d http://thisamericanlife.org/radioarchives/episode/427/original-recipe/recipe. www.marcasur.com
THIS EDITION IS SUPPORTED BY: