/ Welcome new types of trademarks

A wide range of new trademarks such as holograms, moving images, position marks and even flavor and texture marks, are now possible to register with the recent entry into force of the new industrial property law.

Carla Pacheco
Director of Trademarks and Patents Group
Alessandri Abogados

It is the most long-awaited reform in the Chilean intellectual property industry.  Law 21,355, which introduces amendments to the Industrial Property Law 19,039, known in the industry as the “short law”, among other significant amendments, changes nothing more and nothing less than the definition of trademarks and has just entered into force, after the publication of its regulations.

A trademark, pursuant to law 19,039 and until the entry into force of the new law, comprised any sign that was susceptible of graphic representation capable of distinguishing in the market products, services or industrial or commercial establishments.  They could consist of words, including personal names, letters, numbers, figurative elements such as images, graphics, symbols, color combinations, sounds, as well as any combination of these signs.

Now, pursuant to the short law, a trademark is any sign capable of distinguishing goods or services in the market.  That is all.  Therefore, now that the law is in force, the only requirement for a sign to be a trademark is that it is capable of distinguishing a product or service in the market, obviating its capacity to be represented in graphic form.  A consequence of this is that trademarks may consist not only of colors or sounds -or a combination of both- as provided in the previous law, but also of smells or three-dimensional shapes, which are now also adopted in our legislation, the so-called non-traditional trademarks.

But even more important is that the short law only exemplifies the types of signs that can now be registered as trademarks, establishing only one requirement: its distinctiveness.  That is, a sign must be capable of connecting a certain product or service with a certain business origin.

Our legislation now welcomes a wide range of possible new trademarks, both visual and non-visual, such as holograms, moving images, position marks and even flavor and texture marks -why not-, as long as they are able to comply with the distinctiveness parameter as the only requirement established in the law.