Bolivian Trademark Office’s response to covid-19 pandemic: when the cure is worse than the disease

Bolivia
  • The Bolivian IP authorities were caught off-guard when the country was put into lockdown
  • The Patent and Trademark Office has never offered or prepared for the provision of online services
  • The emergency procedures implemented by the office have created some serious issues, especially with regard to the priority of new trademark applications

 

The unprecedented times brought about by the sudden outbreak of the covid-19 pandemic have been transformational at all levels; individuals have had to digest, respond and adapt very quickly to onrushing procedural queries, issues and consequences.

The quarantine has caused, and still causes, major issues. The Bolivian IP authorities were caught off-guard in relation to technical matters, but most evidently in relation to IP procedures. The lack thereof shows how significantly and quickly havoc may be wreaked, as fundamental principles of law and procedure were not strictly understood and protected.

The Bolivian Patent and Trademark Office entered a mandatory lockdown, as most other patent and trademark offices in the world, when the pandemic broke out. As the lockdown kept getting extended, the local trademark office attempted to offer certain services online, namely those of a non-contentious nature.   

However, the first issue encountered when trying to enable remote services was that the Bolivian Patent and Trademark Office has never offered - let alone prepared for the provision of - such services.  The office has never supported online filings of any kind, and its attempt to provide such services during the quarantine, while not equipped or prepared to do so, produced confusion, misunderstandings and technical issues and, as a consequence, uneasiness among practitioners.

However, these technical difficulties, as burdensome as they were, were quickly overshadowed by escalating policy issues. 

The first of these was the enabling of online filings for new applications and renewals while procedural deadlines are still suspended owing to the national lockdown, which is a hierarchically superior decision. This procedural decision caused serious issues as many applicants and practitioners could not react in time: some applicants may be one-time filers with little infrastructure, or some professionals may be occasional or ordinary practitioners with no infrastructure at home to prepare the necessary paperwork and no possibility of making filings during the quarantine period, as opposed to other applicants or practitioners with the capabilities of doing so. Applicants and practitioners with internet and technical capabilities are thus at a de facto advantage compared to those that do not have such capabilities in a time when public offices are officially closed.

As a result of this first issue, a second - more important - one emerged, which could have serious repercussions: how will the priority of new trademark applications be dealt with in these circumstances? This is not a minor policy concern, especially if one takes into account that IP rights are granted on a ‘first-come, first-served’ basis. What will happen to those applicants who were unable to make a filing due to the legal prohibition to perambulate and the closure of all private and public offices? What will happen to those filings that have already been made?  At first sight, it seems that there will be a strong case for those who were unable to file in person when online filings were not a viable option. 

To make matters worse, the Bolivian Patent and Trademark Office recently directed, following the partial lifting of the lockdown in certain cities, that new filings may be made by those needing to do so on specifically assigned days in order to avoid overcrowding at its local offices; remote filing has now been suspended and only in-person filing is accepted. This means, for example, that law firm or practitioner A can make a filing on Mondays, law firm or practitioner B on Tuesdays, etc. This constitutes another aberration of the ‘first-come, first-served’ principle. An applicant that has a trademark application ready on a Friday might have a week’s wait if its set filing date is a Thursday. A second applicant whose set day is a Tuesday may thus conceivably make an earlier filing due to this directive.

The abrupt outbreak of the pandemic caught many IP offices off-guard. However, if emergency procedures are implemented without following and understanding the core principles of IP law, then a second crisis will ensue. In the case of the Bolivian Patent and Trademark Office, the remedy was arguably worse than the disease.


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