Scope of Decision 876 –Common Regime on Country Brand

The Country Brand is a strategy that is part of the public policies adopted by a country, which is used, inter alia, for promoting the tourism, attracting the investments, promoting the gastronomy and facilitating the exports of the country’s products.

Despite the value and utility of the Country Brand, up to date, there is not multilateral consensus as to the definition of said figure, neither is there an international system that regulates the scope of its protection. In the absence of an international regulation, each Member Country of the Andean Community decided, in its condition of sovereign state, the mechanism it had to use in order to protect is Country Brand. In the case of Peru, it opted for the trademark or service mark system, and proceeded to register its Country Brand in the 45 classes of the International Classification before the National Institute for the Defense of Competition and the Protection of the Intellectual Property (Indecopi). Moreover, it also opted to register it abroad, in the countries in which Peru had interest to protect its Country Brand, and only with respect to certain products or services to which priority was given. Nevertheless, said mechanism is not suitable, since it results very onerous, and besides it is inappropriate to the nature of the Country Brand, which is not limited only to the protection of goods and services in the market, but also encompasses a broader concept of nation and image of a country.

Another mechanism adopted by our country was the application of Article 6ter of the Paris Convention for the Protection of Industrial Property (Paris Convention), which makes reference to the protection of State emblems, official signs and warranty hallmarks and emblems of intergovernmental organizations; nevertheless, they do not result an suitable mechanism for protecting a Country Brand, since even though in both cases they are official signs adopted by a State, the Country Brand presents particular connotations which State emblems, official sings, warranty hallmarks and emblems of intergovernmental organizations do not present (for example, a commercial connotation for promoting tourism and attracting investments, said connotation not being characteristic of the signs described in the Paris Convention).

For the reasons above-mentioned, the Member Countries of the Andean Community, when realizing that the mechanisms used for protecting the Country Brand were not suitable, they agreed to create Decision 876 – Specific Common Regime on Country Brand Protection- (Decision 876). Decision 876 constitutes the first international regulating text which establishes a specific common regime on Country Brand protection.

The entry into force of Decision 876 established a common protection regime on Country Brand among the Member Countries of CAN.  Said Decision establishes, for the very first time, a definition of Country Brand, which Article 3 defines as follows: “any sign designated or used by a Member Country to promote its image inside the country or abroad, and for promoting, inter alia, tourism, culture, gastronomy, national production, exports or investments of the Member Country.”

The most relevant aspects established in Decision 876 are the following:

1.   It establishes a communication process for the protection of the Country Brand, which must be in writing, through a format established in the Fourth Final Provision of said Decision.

2.   The protection period of the Country Brand will be indefinite.

3.   The Country Brand is imprescriptible and nonseizable.

4.   Each Member Country will determine the policies and rules relative to the use of its Country Brand.

5.   The Country Brand is not limited to the protection of products and services.

6.  The Country Brand is not subject to any requirement of common use as condition for maintaining its validity.

7.  The infringement proceeding of a Country Brand is initiated ex officio by the competent national office of the Country Member in order to prevent or cease using of a sign identical o similar to a protected Country Brand.

8.   It establishes the necessary measures to prevent acts infringing the rights of a protected Country Brand.

9.  The infringement action of a Country Brand will prescribe after five years counted as from the date on which the infringement was committed for the last time.

10.The administrative proceedings of communication, publication and infringement of the Country Brand will be free, except for some precautionary measures established in the Decision, which will be at the expense of the Member Country to which corresponds the Country Brand object of protection or at the infringer’s expense.

In short, it is important to highlight that Decision 876 considers the Andean Community as an innovative regional bloc in matters related to Industrial Property, which results positive for our country, since it will allow that our Country Brand Peru receives the adequate protection in the Member Countries of the Andean Community.