Abstract

MOURE PEREZ, Juan Guillermo; LOMBANA, Santiago  and  NORATTO TORRES, Laura V.. Application of the grounds for trademark non-registrability in Colombia under Article 137, Decision 486: Is there a lack of legal certainty?. Civilizar [online]. 2022, vol.22, n.43, e20220207.  Epub Sep 06, 2023. ISSN 1657-8953.  https://doi.org/10.22518/jour.ccsh/20220207.

This paper will study how the grounds for trademark non-registrability under Article 137, Decision 486, has been applied in Colombia over time. It is relevant to delve into the subject since this rule enables the Colombian Trademark Office to deny a registration if there is prima facie evidence that allows inferring that the application is intended to commit unfair competition acts.

Therefore, an extensive analysis of Article 137 under the developments made through prejudicial interpretations by the Court of Justice of the Andean Community was performed. We also conducted a chronological investigation on the changes in the application of the rule since the issuance of the Sole Circular by the Colombian Superintendence of Industry and Commerce, the amendments that modify the scope on the application of such rule, and some pronouncements by the Colombian authority that demonstrate different interpretation approaches.

Furthermore, this work addressed the examiner's responsibility regarding the preventive nature of their registrability analysis. Authors conclude that examiners must conduct a broad study on the application for registration that goes beyond a simple study of non-registrability, analyzing other market elements of unfair competition. Otherwise, they would be omitting the scope of their functions and the correct application of the rule.

Keywords : Article 137 of Decision 486; prima facie evidence; unfair competition; market; non-registrability; trademarks; distinctive signs; industrial property; SIC..

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