Australia-Chile Free Trade Agreement comes into force

The Australia-Chile Free Trade Agreement came into force on March 6 2009.

Chile has already entered into similar free trade agreements with China, Japan, India, Korea, New Zealand and Singapore. Chile is thus well placed to become a business platform between Latin America and the Asia-Pacific region.

Chile is Australia's third-largest trading partner in Latin America. From March 6 2009, 97% of Chilean products can enter Australia without custom fees.

The agreement contains a detailed chapter on intellectual property, which comprises:
  • a general part divided into 41 articles;
  • an industrial property section;
  • a copyright section; and
  • an enforcement section.
The IP chapter aims to protect IP rights in an effective, transparent and appropriate manner. Chile and Australia reiterated their rights and obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and other multilateral treaties to which they are both party.
With regard to trademarks, the agreement complies with the obligations set forth in the TRIPs agreement - and even goes further in certain cases. The key provisions are as follows:
  • Protectable trademarks - the parties may not require, as a condition of registration, that trademarks be visually perceptible. They may require only that the marks be represented graphically. The parties must allow the registration of sound and scent marks.
  • International treaties - each party must make reasonable efforts, in accordance with its domestic law, to ratify or adhere to the Madrid Protocol. It seems that the phrases “reasonable efforts” and “domestic law” were included following a debate on the compatibility of the Chilean Constitution with the Madrid Protocol.
  • Well-known trademarks - the parties must recognize the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999), as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the general assembly of the World Intellectual Property Organization.
  • Electronic trademark system - each party must implement, to the maximum extent practical:
    • a system for the electronic application, processing, registration and maintenance of trademarks; and
    • a publicly available electronic information system of registered trademarks.
  • Classification of products and services - products and services will be classified according to the Nice Classification.
  • Term of protection - initial registration of a trademark must last at least 10 years.
  • Geographical indications - an application for the registration of a geographical indication can be opposed or rejected if the geographical indication is confusingly similar to:
    • a trademark that is the subject of an earlier good-faith application or registration; and
    • an earlier trademark the rights to which have been acquired through use in good faith.
  • Country names - the parties must prevent the commercial use of the name of the other party in relation to goods in a way which is likely to mislead consumers as to the origin of the goods.
  • Enforcement and border measures - the measures are similar to those set forth in the TRIPS Agreement.
Sergio Amenábar, Estudio Federico Villaseca, Santiago

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