- Advertisement Law
- Corporate Law
- Data Privacy
- Distintive Signs
- Entertainment Law
- Industrial Designs
- Plant Varieties
- Sanitary Registers (INVIMA)
- Sports Law
- Sweepstakes and Contest
- Utility Models
The Consumer Protection Statute governs all advertisement. Notwithstanding, depending on the good to be advertise, there are special rules to be followed, i.e. alcoholic beverages, medicines, among others.
No. The Consumer Protection Statute rules all kind of advertisement, including in social media.
Consumers must be given complete, truthful, transparent, timely, verifiable, understandable, accurate and appropriate information regarding the offered goods and/or services.
Any consumer might file a complaint or the Superintendence of Industry and Commerce can initiate an investigation, both of which can lead to a monetary sanction.
Any communication directed to consumers, concerning a good or service.
It is the set of norms that protects the author as creator of a literary, scientific or artistic work, which is a product of ingenuity and is original and perceptible by the human senses. The work can be displayed in different forms, being: novels, short stories, didactic and scientific texts, poems, drawings, paintings, sculptures, architecture, photographs, audios, videos, motion picture, television, computer programs (software), among others.
For clarification purposes, it is important to state that hence, merely the concrete form of a work embodied in a language, annotation, recording or other material that enables potential reproduction can be protected. Ideas (in someone’s head), methods and procedures which are not embodied in any object perceptible by the human senses, are not protected.
The physical, natural person (human being) that realizes the intellectual creation of a literary, scientific or artistic work. So, in order to be considered the author or co-author of a work, the person has had to carry out, by him – or herself, the mental process of conceiving and expressing a literary, scientific or artistic work. Consequently, the mere contribution of ideas that serve as antecedents for the creation of the work or the purely physical or mechanical, non-creative contribution to the creation of the work, do not attribute the status of author.
The protection granted to the author is born from the moment he creates the work, without it being necessary to comply with any legal formality (i.e. registration before the Colombian Centre of Copyrights – CECOLDA) nor with a certain quality, theme or destination. Notwithstanding, the registration is an important probative medium.
The protection of a copyright shall be:
– For natural persons: not less than the life of the author plus 80 years after his / her death.
– For legal persons: not less than 50 years counted from the completion, disclosure or publication of the work.
A copyright is different to other common property, since it also has a personal prerogative, inherent to the author. Consequently, a copyright generates two different rights: moral rights and economic rights.
– Moral right: A perpetual, inalienable and non-subjected to a statute of limitations, as a consequence of the indivisible union of the author and its work. By the virtue of this right, the author has the power to decide on the disclosure or modification of its work as well as the right to claim at all times his / her paternity on the work or, on the contrary, to use a pseudonym or disclose it anonymously.
– Economic rights: This right concerns the economic benefits for the author or his beneficiaries that can be derived from the use of the work. Economic rights, unlike moral rights, can be transferred free of charge or onerous to other natural or legal persons, or by virtue of the law may be held by persons other than the author, as is the case of works carried out in the development of a contract of employment or a contract for the provision of services. They allow the owner to control, authorize and / or prohibit the use and exploitation via reproduction, public communication, distribution, translation, etc. of his / her work.
The right of the owner (not per se the author) to authorize or prohibit the making of copies of his work by means of print or digital systems (i.e. CD ROM), among others.
The right of the owner (not per se the author) to authorize someone else to modify his / her work, through the creation of adaptations, translations, compilations, updates, revisions, or any other modification you could think of. In fact, the final result of the transformation is a new work protected by copyright in favor of the processor.
The public distribution is the act by means of which copies of the work are made accessible to the public via sale, lease or rental.
Under certain circumstances, the law authorizes to reproduce or use works without authorization, as long as it is for personal use, for information, cultural or educational (research) purposes, among others.
A natural or legal person, not being the author of the work, may be the owner of the work. The patrimonial rights might be transferred to him / her by means of a contract between the author and the respective third party, being (i) an assignment agreement or (ii) a contract of work by order (fulfillment of a contract of services or employment).
In the latter case, the author is the original owner of the patrimonial and moral rights, but it is presumed, unless otherwise agreed, that the patrimonial rights over the work have been transferred to the employer to the extent necessary for the exercise of his usual activities at the time of creation of the work.
The transfer of patrimonial rights due to the death of the author will occur by testamentary or intestate succession.
In Colombia there are several corporate structures under which a permanent business can be engaged, however the Simplified Joint Stock Company (S.A.S.) is the most suitable and highly used, since it does not require many formalities, is less expensive and has several advantages over other type of entities.
– Company name;
– Capital stock, this is: authorized, subscribed and paid capital;
– Description of the business activities that the Company will execute;
– Appointment of 1 Principal Legal Representative, and if deemed necessary, 1 Substitute Legal Representative.
– Unlike other entities, which must be established by public deed, the Simplified Joint Stock Company (S.A.S.) is created by private document (except for some very specific cases), which must be registered before the Chamber of Commerce of the place where the Company will establish its domicile;
– There are no minimum or maximum limits for the capital stock amount;
– The subscription and payment of the capital stock may be made under the conditions, proportions and terms established by the shareholders without limitations or minimums. In any case, the term for the payment of the subscribed capital may not exceed 2 years;
– The Company may be incorporated by one or more natural and/or legal persons;
– The duration of the Company can be indefinite;
– The business purpose of this corporate structure can be indeterminate for carrying any lawful commercial activities.
– The Company is not required to have a Board of Directors. Notwithstanding, this type of governing body can be incorporated at any time.
– This type of entity does not require the appointment of an Auditor, unless it exceeds a determinate level of gross income or assets.
– The shareholders will be responsible up to the amount of their contributions, except in cases of fraud or abuse of the Company against others.
– Incorporation Tax at a rate of 0.7% over the subscribed capital of the Company. This tax is paid only once at the time of the incorporation;
– Inscription and renewal of the Commercial Registration, at a rate that will depend on the value of the assets of the Company;
– Income Tax, at a rate of 33% (for year 2018); furthermore, there is a surcharge of 4% (for year 2018), that must only be paid when the Company’s taxable base exceeds approximately USD280.700.00;
– Value Added Tax “V.A.T.”, at 3 rates between 4% and 19%, depending on the good or service concerned;
– Tax on Financial Transactions “G.M.F.” at a rate of 0.4% per operation;
– Industry and Commerce Tax at a variable rate depending on the activity;
– Property Tax (provided there is ownership of usufruct right on real state), at a rate between 2 and 33 per thousand, over the value of the property.
– Compilation of certain information and documentation;
– Drafting of special powers of attorney;
– Drafting the bylaws of the Company;
– Registering the Simplified Joint Stock Company (S.A.S.) before the Chamber of Commerce;
– Obtaining the R.U.T. (tax registration number) and N.I.T. (tax identification number) of the Company with the National Tax Authority (DIAN). Please note that the Principal Legal Representative and the Substitute Legal Representative (if appointed) must obtain a R.U.T. and a N.I.T. as natural persons;
– Registering the Commerce Books (i.e. Shareholders Registry Book and Minutes of shareholder’s meetings);
– Issuing Share Certificates;
– Wait for the issuing, by the competent authorities, of the Certificate of Incorporation and Legal Representation, and the R.U.T and N.I.T. of the Company.
Yes, and it is important to note that there are no restrictions for the opening of the bank account of a company whose shareholders are foreign individuals. However, it should be stressed out that the Due Diligence performed by the bank will be much more demanding compared to the one performed to Colombian nationals.
Our suggestion is to open the bank account before the commercial bank in which the Company feels more comfortable due to its previous relationships. Accordingly, local international banks are usually preferred by our clients (e.g. Scotia Bank, Banco Santander, BBVA, etc.).
All Colombian companies require a resolution authorizing the issuing of invoices provided by the National Tax Authority (DIAN). Note that for its obtainment, the Legal Representatives of the Company must have previously obtained from the D.I.A.N. a R.U.T. and a N.I.T. as natural persons, and an electronic signature device.
Foreign investment brought into Colombia for the incorporation of a Company must be channeled and legalized with the Central Bank. This registration grants exchange rights to foreign investors over its funds.
This procedure is carried out with 2 entities. On the one hand, the local bank that is responsible for receiving the foreign exchange and for its monetization according to the instructions of the investor’s representative, and on the other, the Central Bank, entity that formalizes the registration procedures.
Registration of foreign investment is carried out by the filling and signing of an Exchange Declaration.
After the Company’s incorporation, certain obligations arise such as:
– Conduct an annually regular meeting of the highest governing body of the corporate entity;
– Annually renew the commercial registration of the corporate entity before the Chamber of Commerce;
– If the Company has foreign investment, it must be annually updated before the Central Bank.
– Product or service trademarks
– Collective trademarks
– Certification trademarks
– Trade Names
– Commercial names
– Denominations of origin
The scope of protection of these signs is determined by Decision 486 of the Andean Community. This Industrial Property Rights’ decision is applicable in the following Andean Community Countries: Bolivia, Colombia, Ecuador, and Peru.
According to article 134 of Decision 486 of the Andean Community, a trademark is “any sign that is suitable to distinguish products or services in the market”. In addition to this, the mentioned article points out that: “the signs susceptible of a graphic representation can be registered as trademarks.”
Based on the above, a trademark must have the following characteristics:
– Perceptibility, which means that the sign can be “apprehended” in the market;
– Graphic representation, which indicates the possibility of describing the sign;
– Distinctiveness, the most important of all features because it supposes that the sign can be differentiated from the rest in the market.
The following signs can be understood as a trademark:
– Words or a combination of words;
– Images, figures, symbols, graphics, monograms, portraits, labels, emblems, and badges;
– Sounds and smells;
– Letters and numbers;
– A color delimited by a form or a color combination;
– The products form, their packaging or wrapping;
– Any combination of the signs or indicated media in the former sections.
The above-mentioned signs lead to the existence of nominative, figurative, mixed (design), three-dimensional, sound, and olfactory trademarks, among others.
To facilitate comparing applied signs with prior applied or registered signs to determine whether they can be registered as a trademark, an international system is created by means of which groups of products and services with similar characteristics (nature, objective, commercialization and publication channels, consumer, location of sale, etc.) are included in the same International Class.
To establish to what International Class a trademark belongs, the webpage of the International Classification of Products and Service of Madrid can be consulted (see the webpage of WIPO). From International Classes 1 to 34, you can find different product groups; from International Classes 35 to 45, you find different service groups.
In article 135 of Decision 486 of the Andean Community are pointed out the grounds of absolute denial, i.e. general interests for denial:
– Non-compliance with article 134: Cannot constitute a trademark according to article 134 of Decision 486 of the Andean Community;
– Not distinctive: Lacks distinctiveness;
– Everyday shape: Consists solely of the everyday shape of the goods or their packaging, or of shapes or characteristics dictated by the nature or function of the product or service concerned;
– Shape functional or technical advantage: Consists solely of shapes or other elements that afford a functional or technical advantage to the product or service to which they are applied;
– Descriptive: Consists solely of a sign or statement that may serve in business to describe the quality, quantity, purpose, value, place of origin or time of production of, or to impart other data, characteristics or information concerning, the products or services for which the sign or statement is to be used, including expressions extolling the said goods or services;
– Generic or technical: Consists solely of a sign or statement which is the generic or technical name of the product or service concerned;
– Common use: Consists solely or has become the common or usual designation for the product or service concerned in the everyday language or usage of the country;
– Color isolation: Consists of a color in isolation, without any demarcation to give it a specific shape;
– Deception: Is liable to deceive business circles or the public, in particular as to the source, nature, manufacturing methods, characteristics or qualities of the goods or services concerned, or its suitability for its purpose;
– Appellation of origin: Reproduces, imitates or contains a protected appellation of origin for the same or different goods where use of the sign could create a risk of confusion or association with the said appellation, or might constitute misappropriation of its notoriety;
– Contains a protected appellation of origin for wines and spirits;
– Geographical indication: Consists of a national or foreign geographical indication liable to cause confusion regarding the goods or services to which it applies;
– Imitation state’ signs: Reproduces or imitates, without the permission of the competent authorities, either as trademarks or as elements of trademarks, coats of arms, flags, emblems or official signs and marks denoting control and warranty adopted by States, and any imitation thereof from the heraldic point of view, and also the coats of arms, flags and other emblems, names or abbreviated names of any international organizations;
– Technical standards: Reproduces or imitates signs denoting conformity with technical standards, except where the registration thereof is applied for by the national body responsible for standards and quality requirements;
– Plant variety: Reproduces, imitates, or includes the denomination of a plant variety protected in a member country (Bolivia, Colombia, Ecuador, or Peru) or abroad, if the sign is intended for goods or services related to that variety, or where such use would be liable to cause confusion or association with it;
– Against law, etc.: Is contrary to law, morality, public policy or proper practice.
Despite the provisions “not distinctive”, “descriptive”, “generic”, “common use” or “color isolation”, a sign may be registered as a trademark if the person applying for registration, or his principal, has been making constant use of it in the member country, and where the effect of such use has been that the sign has acquired distinctiveness in relation to the goods or services to which it has been applied (second meaning – Theory of Acquired Distinctiveness).
It should be known that registration applications for distinctive signs due to acquired distinctiveness demand a vast evidence material that supplies the necessary conviction to aim at the direct identification by the consumers as a trademark in the market.
In article 136 of Decision 486 of the Andean Community you find the relative grounds, i.e. particular grounds, for denial:
– Risk of confusion with prior trademark: They are identical or similar to a mark previously filed for registration or registered by a third party in respect of the same goods or services, or for goods or services regarding which the use of the mark could cause a risk of confusion or association;
– Risk of confusion with trade name: They are identical or similar to a protected trade name or a label or business sign, in so far as they might, under the circumstances, create a risk of confusion or association;
– Risk of confusion with slogan: They are identical or similar to an advertising slogan filed for registration or registered, in so far as their use might, under the circumstances, create a risk of confusion or association;
– Distributor: They are identical or similar to the distinctive sign of a third party, in so far as their use might, under the circumstances, create a risk of confusion or association where the applicant is or has been a representative or distributor of, or a person expressly authorized by, the owner of the sign protected in the member country or abroad;
– Image right: They consist of a sign that affects the identity or prestige of profit-making or nonprofit-making legal entities, or natural persons, including especially the forename, surname, signature, title, hypocoristic, pseudonym, likeness, portrait or caricature of a person other than the applicant or identified by the relevant sector of the public as a person other than the applicant, except where the consent of that person or, if he is deceased, that of those declared his heirs is proved;
– Copyright: They consist of a sign that infringes the industrial property rights or copyright of a third party, except where the consent of the latter has been obtained;
– Indigenous Afro-American or local community: They consist of the names of indigenous Afro-American or local communities, or the names, words, letters, characters, or signs used to distinguish their goods or services, or the manner of their processing, or which constitute an expression of their culture or practice, except where the application is filed by the community itself or with its express consent; and
– Top of mind: They constitute a reproduction, imitation, translation, transliteration or transcription of all or part of a well-known distinctive sign the owner of which is a third party, regardless of the goods or services to which the sign is applied, where their use would be liable to create a risk of confusion or association with that third party or with his goods or services, constitute misappropriation of the prestige of the sign or dilution of its distinctive power or commercial or advertising value.
The registration process is as follows:
– As soon the application is filed before the Trademark Office, an examiner will be in charge of studying whether the formal requirements of a trademark registration are met.
– If the application meets the requirements, it will be published in the Gazette of Industrial Property of that body during 30 working days for interested parties to submit an opposition against it. Otherwise, that body issues an office action requiring any missing document or clarification, which has to be answered by the applicant within 60 working days from the notification of said action. If answered satisfactorily, the trademark shall be published. If the requirement is not responded in time, the application shall be declared abandoned.
– If an opposition is filed against the trademark application and the same has been notified, the applicant will have 30 working days to file a defense against the opposition. After the expiration of this term the examiner will proceed to examine the registrability of the sign according to the opposition and presented defense. If no opposition has been filed during the 30 days period, the examiner shall conduct the examination of registrability of the sign. It is noteworthy that even if no opposition has been filed, the Trademark Office might consider ex officio that the applied sign is confusing similar with previously registered trademarks, and hence, could deny the sign.
– Finally, the registrability decision taken by the Trademark Office, whether the application has been opposed or not, can be appealed within 10 days of notification of the decision of denial or granting.
Given the above, the registration process can take between 6 and 8 months if the application is not subject to opposition. Otherwise, the above-mentioned process can take 10 to 12 months.
Once the trademark characteristics and the intended products and services are determined, it is advisable to conduct an availability trademark search, from which it can be analyzed if the sign of interest would likely have any conflict with previous applied and/or registered signs on behalf of third parties.
Even though this procedure is not compelling, it is advisable to carry it out to determine the chances of success of registration, to estipulate potential obstacles for the same and to find potential legal solutions to overcome those.
– A Power of Attorney. The same must be executed by the legal representative of the company indicating its position within the company. No legalization by the Colombian Consulate nor the Apostille is required. We friendly request you to fill out both the English and the Spanish part and to mention clearly the complete name of the natural or legal person who provides us the power to act, as well as the complete information regarding the street, province and country which you wish to be used. For trademark matters, a simple, scanned copy is sufficient. However, for administrative purposes, we friendly request you to provide us with the original, physical document as well.
– If the trademark(s) has (have) any graphic features, a clear copy of the same in JPG or PDF with the description of its colors (preferably by means of the Pantone Number(s)), if applicable.
– A full and SPECIFIC description of the goods and/or services covered by each trademark in each International Class.
During any step of the procedure it is possible to modify the following aspects of the trademark application:
– The identity of the applicant (transfer / assignment, change of name)
– The domicile / address of the applicant
– The products and/or service coverage by filing a limitation of the same. It is not possible to extend or completely change the coverage.
No substantial modification can be made to the composition of the applied signs.
Once the Trademark Authority has issued a final decision (in Second Instance), the possibilities of objecting the decision of the Trademark Office are exhausted. However, the possibility exists to turn to the maximum juridical instance in our country, the Council of State of Colombia, filing of a nullity action to revoke the decisions adopted by the Trademark Office.
Once a trademark is granted, for 10 (ten) years from the date of the official, final decision that contains the registration, the Trademark Authority will issue a document by means of which the number of the registration certificate is assigned, and it will be understood that the holder will have the exclusive rights over the sign and the corresponding products and/or services for which the protection was conceded.
The trademark registration may be renewed for successive 10-years periods.
– The exclusive right to use the respective trademark for the products and/or services that specifically were requested to be protected.
– The above statement raises the possibility of forbidding that third parties without the holder’s rights consent can use it to distinguish the same / similar products and/or services.
– Use of the trademark, otherwise the trademark registration might be cancelled for non-use
– Renewal of the trademark every 10 (ten) years, if interested.
– Filing of changes of name, changes of domicile, assignments, licenses before the Trademark Office (Strongly recommended).
After 3 years since the date that a trademark is granted, any third party can request its cancellation for non-use. At the same time, if within the legal term no suitable probative material of said use is filed, the registration will be cancelled and the third party that claimed for this action, will have a preferential right to obtain the exact same trademark registration.
Aside from a non-use cancellation action, a registration can be cancelled because of the trademark’s vulgarization or the sign’s notoriety in favor of a third party.
In any moment a resignation to the trademark registration can be filed by the owner of the trademark registration directly, or by a representative, paying the official fee set for this purpose.
Is a sign associations and corporations apply for and regardless of identifying products and/or services from different businessmen, it has the purpose to accredit that those products and/or services have features in common.
The only difference in the procedure of these trademarks is that they demand a copy of the by-laws of the association that is applying for the protection of the sign, the precise list of its members and a management trademark protocol that indicates how it is going to be used.
This sign points out the quality or other characteristics of the products and/or services distinguished, and precisely accredits the owner of the trademark.
The application for registration of a certification mark is accompanied by the rules for use of the mark, which specifies the goods or services that may be covered by the owner’s certification, define the characteristics guaranteed by the presence of the trademark and describe the way control over such characteristics is exercised before and after use of the trademark has been authorized.
The rules of use are registered together with the trademark. Any amendment to the rules of use of the certification trademark is brought to the notice of the Trademark Office. The amendment to the rules of use is enforceable against third parties on its entry in the corresponding register.
It is the phrase or legend that complements a trademark. Therefore, always at the time of applying for the protection of a trade name, the trademark registration to which it is associated must be very clearly indicated.
The application of a trade name is the same as the one of a trademark. Its validity will be the same as the one of the trademark that it complements.
Is the denomination that identifies a businessman within the ordinary course of his business. At the same time, the emblem is the way a commercial establishment is identified, and in both cases, different from the other distinctive signs, the rights are acquired by use and shall end when use of the name ceases or when the activities of the undertaking or establishment that uses it cease.
Registration or deposit is declaratory in character.
Any undisclosed information that a natural person or legal entity legitimately holds, that may be used in any productive, industrial or commercial activity and is capable of being passed on to a third party shall be considered a business secret in so far as the said information is:
– Secret not generally known / accessible: secret, in the sense that, as a whole or in the precise configuration and combination of its elements, it is not generally known or readily accessible to those who move in the circles that usually handle the information concerned;
– Commercial value: of commercial value due to its secrecy; and
– Reasonable measures: made the subject of reasonable measures on the part of its legitimate holder with the view to keeping it secret.
The information constituting a business secret may relate to the nature, characteristics or purpose of goods, to production methods or processes or to means or methods of distributing or marketing goods or rendering services.
This is a name given to products, such as wines, spirits, food, agricultural products, and handcrafts, that indicate a specific origin of the product, and whose characteristics are unique and of a high recognition, precisely by the geographic area from which these products are from.
The protection enables the owner of the right to prevent the use of the expression by third parties. It cannot prevent them to use the same technique to obtain the product. As long as the conditions of the recognition of the denomination of origin are met, the same will be protected. In other words, the term of protection is not pre-determined.
To obtain the protection, an application should be filed in the jurisdiction(s) of interest. Where denominations or origin are not part of the legislation, other alternatives of protection are usually applied, such as certification – or collective trademarks. As usual practice, the producers of the goods seeking the protection are organized in associations or other legal entities to represent them. All the producers are obliged to meet specific requirements and conditions agreed by their entity and by the authority to obtain the mentioned protection.
Mainly, entertainment law is governed by copyright rules and general commercial law. In some specific cases, there are special rules to protect actors, performers, directors and compositors.
Television, games and shows are heavily regulated in Colombia. Nonetheless, most of the activities are contractually ruled, based upon copyrights and general commercial legislation.
Habeas data is the fundamental right of every single person to know, update and rectify its information that has been collected in archives or in public or private databases.
Personal data means any information that is or may be associated with one or more, determined o determinable, natural persons. Personal data can be public, semi-private or private.
– Public Data: The information classified as such under the law or the Constitution. It is considered as public information, among others, data contained in public documents, final court judgments not subject to legal reserve and those regarding to civil status of persons.
– Semiprivate Data: Defined as the data that has no sensitive, reserved or public nature and whose knowledge or disclosure may interest not only to its owner but also a certain group of persons or society in general, such as financial and credit information or commercial activity.
– Private Data: All information that by nature is confidential or sensitive, relevant for the Data Owner.
It is the person or legal entity, public or private, who (either alone or jointly or in common with others) determines the purposes and the manner in which any personal data is or will be processed. Example: The banks that have access to the personal data of their clients.
The data subject is the person whom particular personal data is about. Example: the person entering into a credit agreement with a bank.
Data that affects the most intimate sphere of the human being and its undue disclosure can cause harm to the honor and privacy of the individual. These data require more protection and the law establishes a special treatment for this kind of data.
Sensitive data relates to information concerning a data subject’s racial or ethnic origin, political opinions, religious beliefs, trade union activities, physical or mental health, sexual life or details of criminal offences.
In Colombia, there is no legislation governing Franchise Agreements. Under this understanding the franchise is known as an atypical contract, since it reflects a legal business that is not regulated by any specific law and its clauses are negotiated freely by the parties.
Accordingly, as the franchise is mainly ruled under the framework of a commercial contract, the applicable law is the general system of contracts and obligations of the Civil and Commercial Codes, which deal with the principles governing acts and contracts, and the obligations of civil law (effect, interpretation, cancellation or termination).
In accordance with clause 4 of the Colombian Commerce Code, the terms of an agreements validly executed will prevail over commercial and customs law, which can also be applicable. That is, the law and customs may be applied only in those cases there the contract is silent on the matter.
However, in practice this principle may be difficult to apply and is very case-specific, as there are many regulations –such as those setting forth legal procedures that cannot be ignored or modified by the parties by means of a private agreement– that a court might categorize as of public interest and override those agreed by the parties.
As there is no legal definition of Franchise, several legal opinions have been outlined on this issue. Accordingly, it has been defined that a Franchise Agreement is a contract by which a person (Franchisor) grants another one (Franchisee) the right to reproduce, under the trade emblem of the Franchiser and its Distinctive Signs, with its continuous assistance, the business model previously developed and tested by the Franchiser and, due to the comparative advantage that this brings, allow a Franchisee to perform and carry out beneficial businesses.
Agreements that are normally drafted within the legal figure of the Franchise, include the following essential elements:
– Trademark License: The Franchisor authorizes the Franchisee to use its trademarks and other Distinctive Signs.
– Transfer of Know-How: The Franchisor is compelled to teach and train the Franchisee in the acquisition of knowledge of its business model, techniques and methods that must be applied in the carrying out of the business.
– Distribution: In the models in which the Franchisee can sell products supplied by the Franchisor, it is necessary to introduce elements of a distribution agreement. This does not affect the contractual nature of the Franchise Agreement neither implies the selling of goods.
– Initial fee and royalties: It is necessary to pay an admission fee for the Franchise and a regular sum that is normally established over the basis of a percentage of the sales of the Franchise. This provision is paid by the Franchisee to the Franchiser.
– Exclusiveness: It is usual although not compulsory, to establish a territory in which the Franchisee will develop the business in an exclusive manner.
– Confidentiality: Usually the Franchisee is obliged not to reveal to third parties, even after the termination of the Agreement, the information obtained in the development of the contract if this constitutes a commercial secret.
There are no requirements or special rules about information disclosure in the negotiation stage of the Franchise Contract. Therefore, there is no obligation for the Franchisee to reveal information in the commercial offer.
However, under the general regulation of contracts the offer must have the essential elements of the business. Under this understanding, the information disclosed by the Franchisee must not be deceitful and should be as complete as possible to give the Franchisee the possibility of a fair evaluation of the responsibilities and rights that it will have under the Franchise’s development.
All these is to avoid a mistake that later can provide legal arguments of vices of consent and therefore the nullity of the contract.
An employment agreement is an arrangement in which a person (employee) is compelled to provide a service to other person or entity (employer), under the constant subordination of the latter, and who receives remuneration for his services rendered (salary). The employment agreement can be verbal or written.
An employment agreement is valid independently of the nature of the relationship, when the following elements are present: (i) the personal activity of the employee; (ii) the subordination of the employee, faculty that allows the employer to demand the fulfillment of orders at any time, regarding the form, time or amount of duties to perform and impose the measures related with this, and; (iii) the payment of a remuneration or salary.
Accordingly, considering that one of the most important elements of the Franchise Agreement is the payment from the Franchisor to the Franchisee to have the right to receive Specialized Knowledge and a Trademark License, one of the essential elements of the employment agreement is not present, given that the payment made by the person who runs the business, Franchisee, to the person who provides the know-how, Franchiser.
In the same way, the excessive limitation of the Franchisee’s liberty to organize the business, by the Franchisor, can be justified as a logic consequence of the trademark license conceded by the trademark owner and not because the Franchisee provides a personal service to the Franchiser.
Thus, in a Franchise Agreement it is obvious that the use of the Trademark implies some limitations to the Franchisee due to a commercial need. Therefore, it is very unlikely, if not impossible, that a Franchise Agreement can be categorized as a labor relationship.
The difference relies on identifying the essential elements of each specific agreement.
The essential element of a Distribution Agreement is the selling of certain manufactured or imported goods by the director or agent, for these to be resold by the distributor under the conditions agreed in the contract. For this purpose, the distributor does not need a Trademark License from the director or the manufacturer.
On the other hand, the essential elements of a Franchise Agreement are the granting of a Trademark License of the Franchiser and the knowledge transfer and based on these, additionally there can be some other ancillary obligations when the parties agree on them. For example, under certain circumstances the parties can establish that the Franchiser is compelled to buy products from the Franchisee for its resale.
If there is a Selling Agreement and no Trademark License or Transfer of Technical Knowledge, such arrangement can be interpreted as a Distribution Contract based on the obligations that the buyer assumes.
As the legislation does not regulate the Franchise Contracts and there are no limitations to the terms that the contract must contain, the parties can agree on these obligations to create their specific contractual relation. Therefore, if the agreement of the Trademark Licenses Concession is maintained as the supply of technical knowledge, the fact that the Property Transfer does not take place until the goods are sold to the final customer, does not modify the nature of the Franchise Contract to a Commercial Agency Agreement.
Given that no legal regulation regarding this matter exists, it is important to consider that one of the essential elements of this agreement is the existence of a Trademark License. Being this so, the law demands that this kind of agreement must be in writing and therefore such applies to the Franchise Agreement. Therefore, it will also be necessary for the Franchise Contract to be written to be valid.
As to the registration of the License Agreement, our legislation demands the contract to be registered before the Superintendence of Industry and Commerce, to avoid third parties’ opposition. This registration is not compelling for the execution of the Agreement among the parties but it is very practical to carry out to demonstrate the use of the Trademarks and due to its importance as proof to defend the Trademarks against the potential cancellation actions for non-use.
Likewise, the written document is necessary due to the need of filing the same before the National Tax Authority (DIAN), when the Franchisor is a foreigner and the Franchisee a Colombian, considering that the payments must be send abroad.
By means of an industrial design can be protected the appearance of a product resulting from any arrangement of lines or combination of colors or any two-dimensional or three-dimensional outward shape, line, outline, configuration, texture, or material that does not alter the intended purpose or use of the said product.
To be eligible for registration, it should be new (not made available to the public in any place or any time by description, use, marketing or any other means.
An industrial design is classified according to the Locarno Agreement of October 8, 1968.
Whom can be the owner of an industrial design?
The initial right to the registration of an industrial design belongs to the designer(s), but said right can be assigned to a third party, being a natural person(s) or a legal entity.
– Against morality or public policy: The commercial exploitation of an industrial design is not considered contrary to morality or public policy for the sole reason of there being a legal or administrative provision that prohibits or regulates such exploitation;
– Technical function: Industrial designs whose appearance is entirely dictated by considerations of technical character or by the performance of a technical function, without entailing any arbitrary involvement of the designer;
– Exact reproduction connection to other product: The industrial design that consists only of a shape the exact reproduction of which is necessary for the product incorporating the design to be assembled mechanically or connected to another product of which it forms a part. This prohibition shall not apply in the case of products in which the design feature lies in a shape intended to permit the assembly or multiple connection of the products or their interconnection within a modular system.
The registration process is as follows:
– As soon the application is filed before the Patent Office, an examiner will be in charge of studying whether the formal requirements of an industrial design registration are met.
– If the application meets the requirements, it will be published in the Gazette of Industrial Property of that body during 30 working days for interested parties to submit an opposition against it. Otherwise, that body issues an office action requiring any missing document or clarification. If answered satisfactorily, the industrial design shall be published. If the requirement is not responded in time, the application shall be declared abandoned.
– If an opposition is filed against the industrial design application and the same has been notified, the applicant will have 30 working days to file a defense against the opposition. After the expiration of this term the examiner will proceed to examine the registrability of the sign according to the opposition and presented defense. If no opposition has been filed during the 30 days period, the examiner shall conduct the examination of registrability of the industrial design. It is noteworthy that even if no opposition has been filed, the Patent Office might consider ex officio that the applied industrial design is not eligible for registration due to prior rights or lack of novelty.
– Finally, the registrability decision taken by the Patent Office, whether the application has been opposed or not, can be appealed within 10 days of notification of the decision of denial or granting.
– Given the above, the registration process can take between 6 and 8 months if the application is not subject to opposition. Otherwise, the above-mentioned process can take 10 to 12 months.
– The industrial design is granted for a period of 10 (ten), non-renewable years.
– A Power of Attorney. The same must be executed by the legal representative of the company indicating its position within the company. No legalization by the Colombian Consulate nor the Apostille is required. We friendly request you to fill out both the English and the Spanish part and to mention clearly the complete name of the natural or legal person who provides us the power to act, as well as the complete information regarding the street, province and country which you wish to be used. For industrial design matters, a simple, scanned copy is sufficient. However, for administrative purposes, we friendly request you to provide us with the original, physical document as well.
– A copy of the document by means of which the designer(s) assigns the right over the design to the applicant. (If the designer(s) is/are employee(s) of the applicant, copies of the relevant provisions of their labor contracts, i.e. the parts regarding Intellectual Property, should be provided as well).
– If a priority is claimed, we would require a certified copy of the priority claimed. Consider that to claim a priority, an application has to be filed within the following 6 months from the filing date of the application whose priority is claimed.
– An instruction in which you indicate us the following:
o The industrial design to be applied. (The title of the industrial design cannot refer to an own know, but should refer to the design itself)
o The name, address, and the nationality of the designer(s).
o The name, address, and domicile of the applicant.
– The representation of the design must include in principle the following: 1 upper view, 1 down side view, 4 lateral views (2 if the lateral views (back – front, and left – right) are identical), and a perspective view (isometrical), if three-dimensional.
For a bi-dimensional industrial design, one view is sufficient.
However, if there are more views which can clearly show a more accurate representation of the industrial design, we would suggest filing them too.
To minimize the risk that the size and / or scale of the designs changes due to the program of our Patent Office, we strongly recommend you providing us with clear photographic or graphic views in a format of JPG in a size of 8×8 CM. If the views are provided in another size and/or format, a higher risk exists that the views will be differently displayed in the database and in the resolutions of the Patent Office.
Finally, being a technical drawing, both graphically and photographic views are allowed. The figures should not show dimensions, frames, indicator lines, cuts, graphics, marks, or the representation of a technical function, because these aspects are not protected by an industrial design.
Depending on the case, two types of lines can be used: Continuous to draw visible edges and visible contours and dotted for hidden edges and hidden contours. What is represented in a dotted line will be the forms that are hidden in any of the projections.
The use of the dotted line will be done by way of illustration to indicate an object for which protection is not requested, as long as the requested design is a part of the object mentioned and you wish to indicate the location and arrangement thereof within the element of which it is part; For purposes of its interpretation, the requested design must be drawn in a continuous line. The figure or figures showing the dotted line will not be taken into account for the study and decision of the application and will only be understood as illustrative.
What rights and obligations arise with an industrial design registration?
– The exclusive right to use the respective industrial design.
– The above statement raises the possibility of forbidding that third parties without the holder’s rights consent can use it.
– Filing of changes of name, changes of domicile, assignments, licenses before the Patent Office (Strongly recommended).
Our Litigation Department provides legal assistance concerning a wide variety of legal matters, such as:
– Trademark and copyright infringement
– Domain names (ICANN related proceedings, such as, UDRP and URS, among others)
– Nullity actions
– Regulatory affairs
– Constitutional actions
– Unfair competition claims
– Criminal cases
– Consumer protection claims
– Contractual actions
– Civil rights cases
– Collection of pending debts
– Mediation and conciliation
– Local and international arbitration.
Usually, we determine the best strategy case by case, for the client to protect its rights and to obtain a prompt response from our litigation team.
No. Every case must be evaluated to determine the best strategy, which in most cases comprehends a wide variety of prejudicial actions or proceedings, which are cost-effective. Going to court is the last resource.
Depending on the case, we recommend cease and desist letters; coexistence negotiations; mediation or other ADR (Alternative Dispute Resolution Mechanisms); ICANN related proceedings, such as, UDRP or URS, to name a few; among others.
The facts of the case would determine if the prejudicial proceeding is possible, recommendable or available.
In some cases, before filing a Lawsuit, Colombian Procedural Law provide that the parties must exhaust an attempt to settle the dispute through mediation. Mediation is not mandatory when the judicial proceeding is preceded of or accompanied with a request for preliminary injunction meassures.
A lawsuit is an action brought before a court of law or an arbitration court, in which a plaintiff seeks a legal or equitable remedy. Before filing a lawsuit and seeking professional legal advice, explore these considerations:
– Do you have a good cause of action?
– Do you have material evidence to support your claims?
– Are you willing to assume the costs related to a lawsuit, such as, attorney’s fees, bonds, experts’ fees, among others?
– Is your goal to collect any compensation for damages? Or, does your interest rely upon the mere protection of your right?
– Would your claim be timely filed or not?
Trial by jury does not exist in our country as Colombia is a Civil-Law jurisdiction whilst said practice is more often used in Common-Law jurisdictions. Thus, a judge determines all matters of law. When a proceeding undergoes an appeal or an extraordinary resource, it would be decided by a Court of Appeal or the Supreme Court, in which the number of judges (named magistrates) varies from 3 to 25, depending on the Court and the level of the appeal.
However, mostly all judicial proceedings in Colombia are now verbal and the same are carried out in filmed and recorded hearings.
Yes. Depending on the nature of the dispute, foreigners are allowed to file lawsuits in Colombia, before any competent authority, to protect their rights in Colombia.
The length of a case depends on the nature or the case. Generally, civil cases often last about 2 years at the first instance. When appealed, it can take between 3 to 4 years to obtain a definitive decision from the Court of Appeals.
Our Firm considers that each client is the most important one. Hence, at least one Partner will always be an active part and leader in every step of the proceeding. During the course of our representation, you will have a legal team composed of a Partner, an attorney and paralegals or legal assistants
Partner, Fernando Triana is an arbitrator in both the National Arbitration Forum and the World Intellectual Property Organization, concerning ICANN related proceeding, including but not limited to UDRP and URS proceedings. He has decided approximately 118 cases in nearly 17 years. Giving him a unique grasp and understanding of how to proceed to obtain favorable results.
Partner, Sandra Ávila has a vast and successful experience strategizing UDRP and URS proceedings and substantiating decisions based on the aforementioned Policies.
Consequently, the team is highly prepared to advice you and represent you in these matters.
A new product or proceeding in any field of technology that provides a new way to do something or a new technical solution to a problem, i.e. Vaccines; genetically modified organisms; a recombinant gen; monoclonal antibodies, etc.
Nevertheless, all the possible products or proceedings are not patentable, in accordance with the exclusions provided by law, such as:
– Discoveries, scientific theories and mathematical methods
– Living beings or parts thereof found in nature
– Biological material existing in nature or which may be isolated, including the genome or germ plasm of any natural living being
– Literary and artistic works • Schemes, rules and methods for performing mental acts, playing games or doing business
– Computer programs or software • Presentations of information
– Inventions which exploitation would be contrary to the public order, morality, human and animal health and preserve, vegetable preserve, or environmental preserve.
– Diagnostic, therapeutic and surgical methods for the treatment of humans and animals.
– Plant and animal varieties, essentially biological processes to produce plants or animals.
– Uses or second uses for products or procedures
The deadline is 12 months from the filing date of an earlier patent application filed in one of the Member Countries of the Paris Convention for the Protection of Industrial Property or the Community Andean of Nations.
In addition, Colombia is member of the PCT Treaty, which time limit for entering in national phase is 31 months from the international filing date, or, if priority is claimed, from the priority date.
The minimum documents and information for filing a patent application in Colombia are the following:
– Applicant’s name and domicile
– Inventor’s name and domicile
– Filing number and filing date of the earlier patent application which priority is claimed under the Paris Convention or the PCT Treaty.
– Description, claims, summary and drawings of the invention in the Spanish language.
– Payment of the official fees
In a further stage, the applicant will be required to file in order to complete the application in Colombia, the following documents and information:
– A Power of Attorney, in case that the application is submitted by an Attorney.
– A document by which the inventor assigns the right over the invention to the applicant, in case that the applicant is different to the inventor.
– The priority document if the priority had been claimed under Paris Convention.
– If the patent application refers to a sequence of nucleotides or amino acids, the sequence listing in digital form is required.
– If the patent application refers to biological material, and the invention cannot be fully described to be understood and carried out by a skilled person in the art, a certificate of deposit of the biological material is required.
– If the invention was obtained or developed on the basis of genetic resources and their derivatives a contract access to genetic resources is required.
– If the invention was obtained or developed on the basis of traditional knowledge belonging to indigenous, Afro-American or local communities, the authorization for use of the traditional knowledge is required.
• Novelty, which means that the invention has not been published in Colombia or elsewhere before the date of filing of the local application or the application which priority has been claimed.
• Inventive Step, which means that the invention is not obvious for a person skilled in the art.
• Industrial application, which means that the invention can be manufactured or applied in any field of industry. It is important to clarify that the word industry should be understood as any productive activity including services.
The registration process in Colombia takes between 18 and 24 months.
The registration of a patent is granted for 20 years as from the date of application. Nevertheless, in order to maintain the registration of a patent of invention, an annuity fee must be paid.
It is important to clarify that the annuity fees are only applicable for patent of inventions which registrations have already granted by the Patent Office.
The due date for the payment is the last day of the month in which the patent application was filed. The legal provisions provide a grace period of six months with an extra-charge of approximately 40% in the official fees.
In case the annuity fees are not paid within the legal terms above mentioned, the Patent Office will declare lapse the patent registration.
A device, a tool, an instrument, a mechanism, an apparatus or any part itself as long as they contribute with a better or different performance, uses or manufacturing, providing an utility, advantage or technical effect that they did not have previously.
Consequently, procedures, plastic or architectural works or objects only provided by esthetic features are not protectable.
The deadline is 12 months from the filing date of an earlier utility model application filed in one of the Member Countries of the Paris Convention for the Protection of Industrial Property or the Community Andean of Nations.
In addition, Colombia is member of the PCT Treaty, which time limit for entering in national phase is 31 months from the international filing date, or, if priority is claimed, from the priority date.
The minimum documents and information for filing a utility model application are the same to the ones required for filing a patent application, according to the information above.
The registration process in Colombia takes between 14 and 18 months.
• Novelty, which means that the utility model would not have been disclosed through any means of communication worldwide (including use or commercialization) before the date of filing of the local application or the application which priority has been claimed.
• Industrial application, which means that the invention can be manufactured or applied in any field of industry. It is important to clarify that the word industry should be understood as any productive activity including services.
The protection lasts 10 years from the filing date of the application. This term is not renewable.
A group of plants provided with specific characteristics that differentiate them from the other plants, as long as they are new, distinct, uniform and stable.
– A plant variety is new if it has not been lawfully sold or made available to third parties in other manners by or with the consent of the breeder or his successor for commercial exploitation purposes (Article 8 of Decision 345 of the Andean Community).
– A plant variety is distinct if it is clearly distinguishable from any other variety whose existence is already known at the filing date of the application or the date of any priority that has been claimed.
– A plant variety is uniform if it maintains its relevant and particular characteristics independently the manner of its reproduction, multiplication or propagation.
– A plant variety is stable if its essential characteristics remain unchanged from generation to generation and at the end of each particular cycle of reproduction, multiplication or propagation.
The deadline is 12 months from the date of filing of an earlier application for a plant variety protection in a country granting reciprocal treatment to Colombia.