Galapagos is an unofficial state emblem, rules IEPI

Ecuador

The Ecuadorian Institute of Intellectual Property (IEPI) has rejected an application to register a word mark containing the name Galapagos for services in Class 39 of the Nice Classification in relation to the protection of maritime tourism, especially in the Galapagos Islands of Ecuador. According to the IEPI, Galapagos is a state symbol or emblem of the Republic of Ecuador and, therefore, cannot be used as part of a registered trademark.

The Constitution of Ecuador does not include the names Galapagos or Galapagos Islands as official symbols of Ecuador. Pursuant to Article 1 of the Constitution, the three official symbols of state are the flag, the coat of arms and the national anthem. However, the Galapagos Islands are probably Ecuador's most internationally famous tourist destination.

The IEPI's decision highlights the problems faced by trademark offices in determining what constitutes a state or cultural emblem. World Trademark Law Report panellist Jeremy Phillips notes in his book Trademark Law that a number of 'cultural emblems' may be unregistrable due to their high degree of significance to a particular country. He gives the examples of the dates July 4 and July 14, which have significance for the United States (Independence Day) and France (Bastille Day), respectively. Therefore, the question is whether a word, or a geographic place name, not formally declared to be a state emblem, can be an 'emblem' for the purposes of (i) Article 6ter of the Paris Convention for the Protection of Industrial Property, or (ii) national legislation that follows the language of the Paris Convention (in Ecuador: Article 135(m) of Andean Community Decision 486 on a Common Industrial Property Regime or Article 195(j) of the Ecuadorian IP Law).

Another way of stating the question is whether the term 'emblem of state' should be interpreted strictly (as a formally designated heraldic or representative device), or loosely (as any thing that a significant number of people identify with a state)? With a strict interpretation, trademark offices around the world can feel safe in not having to look beyond World Almanac books and diplomatic instruction sheets. With a loose interpretation of 'emblem', there is no practical way of determining whether a word or device is an unregistered emblem of some state, somewhere in the world.

Bruce Horowitz, Paz Horowitz Abogados, Quito

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