The Andean Community (“CAN”) issued Decision 876 of 2021, whereby it establishes the Nation Brand as a new distinctive sign. CAN created a special regulation for the Nation Brand applicable to CAN member countries (Bolivia, Colombia, Ecuador and Perú).
According to this regulation, a Nation Brand “is any sign designated or used by a Member Country to promote its image inside and outside the country, and to promote, among others, tourism, culture, gastronomy, national production, exports or investments of the Member Country.”
Unlike traditional marks, the scope of protection of a Nation Brand is not be limited to a particular class of the International Nice Classification. Likewise, it is not necessary to use the Nation Brand in the market to maintain its protection, and it is imprescriptible, non-seizable, and it is protected for an unlimited period, until the holder decides to end its protection.
Each member country may determine at its discretion the quantity and variants of the Nation Brand that it wishes to protect; as well as who will be the owner of the Nation Brand, which entity will be entitled to exercise the rights over it and who will be responsible for granting authorizations for the use of the Nation Brand.
Once the Nation Brand has been protected, the competent national office shall deny registration of any identical or similar distinctive sign, unless the application is made by the Nation Brand owner, who exercises his rights, or by any person expressly authorized to do so.
Besides, the owner of the Nation Brand will be entitled to prevent or make cease (i) the use of the Nation Brand in commerce or in media, (ii) the manufacture of products or materials containing the Nation Brand, or (iii) any use that generates association with the protected Nation Brand.
Decision 876 of 2021 established the procedure to protect Nation Brands in the member countries of the CAN, as follows:
- Filing of the written application at the competent Trademark Office.
- Formal examination of the application for a fifteen (15) day-term.
- Three (3) month period for member countries to object the application of the Nation Brand.
- Publication of the protected Nation Brand.
The Decision also provides that the competent national office may object the protection of a Nation Brand only if:
(i) It is identical to, or contains a previously registered or applied-for trademark or slogan, unless the applicant is the same owner or any authorized person to do so;
(ii) It reproduces, imitates or contains a protected geographical indication or designation of origin, which is not of the Member Country communicating the Nation Brand;
(iii) It consists of the names of indigenous, African American, or local communities, or designations, words, letters, characters, or signs used to distinguish their products, services or the manner of processing them, or that constitute the expression of their culture or practice, unless the application is made with their express consent.
(iv) is contrary to morality, public order, or good manners.
Finally, member countries may protect the Nation Brand from non-member countries of the CAN, prior agreement with them.