Nation Brands: The pioneering decision adopted by the Andean Community.

abril 2021

For some years now, there has been much and often talk of “nation branding”. A term which, as its name suggests, refers to the distinction and recognition of a specific country. But in the field of Intellectual Property, its concept and definition goes much further.

What is a nation brand?

The nation brand is the value proposition offered by a country to its visitors and investors and refers to the intangible value of the reputation and brand image of the country in question, through multiple and diverse aspects such as, for example: its typical products, culture, tourism, sports and any other characteristics that define and distinguish the territory.

This term was born out of the need for governments and business sectors to generate their own territorial identity in the face of the rest of the international markets, whose strategy is to position themselves as a reference in the origin of their products, culture, tourism, companies, etc., in the global market.

It is exactly the same as what happens with a company that sells a specific product, and seeks, with its brand, to distinguish itself in the market from its competitors and to be recognized by consumers.

Some examples of nation branding are:

  • Argentina: which presented its nation brand for the first time and its first logo in 2005.
  • Spain: with Spain is different, on the one hand, and Marca España, on the other, a state policy managed by the Government’s High Commissioner.
  • Peru: There’s a Peru for everyone, a brand launched in 2010, whose slogan is based on the varied and rich offer that the country has to offer its visitors and investors.
  • Colombia: The answer is Colombia, a brand launched in 2011.
  • Costa Rica: Essential Costa Rica, or Essential Costa Rica, was launched in 2013 by Executive Decree No. 37669 of 22 March 2013.
  • Honduras: The Honduras Nation brand was born in 2015, under the alliance “Honduras, we are for you“.

As a result of these nation brands, which represent a great business, cultural and protectionist asset for each territory in question, the Andean Community has been a pioneer in Latin America in adopting the first decision regarding its territory, in reference to this matter.

Decision 876 of the Andean Community for a Common Nation brand Regime

On 23 April 2021, the Andean Community, whose Member Countries are Bolivia, Colombia, Ecuador and Peru, approved the Decision regulating the common regime for nation brands throughout its territory.

This Community regulation, which has been worked on in the Andean ad hoc Committee on Intellectual Property since 2017, is a pioneer in this area. Its purpose, as we have just mentioned, is to establish a common Andean regime for the protection of the nation brands of the Member Countries that make up the Community.

This decision establishes the basic criteria in relation to this regime, such as when to grant protection to the nation brands of third countries, the procedure for their protection, what exactly constitutes a nation brand in the Andean Community, the number and variants of nation brands that each territory wants and can protect, as well as the rights of the owners of the nation brand in question.

What does this decision mean for the Andean Community? Key points:

The following is a list of the most important points of the adoption of this Decision by the Andean Community:

The protection of a nation brand of a Member Country in another Member Country is allowed, provided that the deadlines established and the provisions of the form to be completed by the country in question, provided by the Decision itself in its Fourth Final Provision, are complied with.

As in the case of distinctive signs for different goods or services, the competent national office may object to the protection of a nation brand where it is (a) is identical to or contains a trademark or slogan, previously protected or applied for, unless the person applying for protection is the same owner or authorized person; (b) reproduces, imitates or contains a protected geographical indication or appellation of origin, which is not from the Member Country that communicates the nation brand; c) consists of the name of indigenous Afro-American or local communities, the names, words, letters, characters or signs used to distinguish their goods, services or the manner of processing them, or which constitute an expression of their culture or practice, unless the application for protection is filed with their express consent; and d) is contrary to morality, public order or decency.

The nation brand shall be protected from the date on which the competent national authority of the Member Country receives the communication requesting protection.The nation brand shall be protected for an indefinite period, and shall be imprescriptible and unseizable.

Nation brand shall not be subject to any requirement of use as a condition for maintaining their protection.

Each Member Country shall determine the policies and standards relating to the use of its nation brands, and shall establish the procedure and conditions for applying for and obtaining authorization to use its nation brands both domestically and abroad.

The competent national office shall refuse, either ex officio or at the request of a party, the registration of any distinctive sign which is identical or similar to a nation brand protected in accordance with the Decision.A Member Country may prevent or cause to be discontinued any use of a sign that is identical or similar to its protected nation brand, use being considered use: use in trade, use in any medium of communication or dissemination, manufacture of documents, labels, containers, wrappings, packaging, and other items or materials reproducing or containing a nation brand or similar sign, as well as marketing or holding such items or materials; and any use that would indicate a link or association with the nation brand that is the subject of protection.

The competent national office shall be required to initiate the corresponding administrative procedure ex officio when it becomes aware of an infringement of a nation brand protected in the territory under its jurisdiction, where the use thereof is made without express authorization. It may order, when it deems it appropriate: the cessation of the acts constituting the infringement, the withdrawal from commercial channels of the products and materials constituting the infringement, the prohibition of the import or export of such products or materials, the adoption of the measures necessary to prevent the continuation or repetition of the infringement, and the publication of the decision and notification of the persons concerned, at the infringer’s expense.

The same shall apply in the case of the adoption of interim measures.

The action for infringement of a nation brandk shall be barred after five years from the date on which the infringement was last committed.

And the Decision adds, in its Second Final Provision, that the protection conferred by virtue of the Decision shall not affect the protection that Member Countries grant in accordance with Article 6ter of the Paris Convention for the Protection of Industrial Property.

This is a very complete and decisive Decision that aims to cover those blind spots where there may be the possibility of a conflict arising, in order to obtain and thus contribute to greater protection and performance of the nation brands that form part of the Andean Community, this being a pioneering decision in Latin America.

Eduardo Zamora | Sara del Río