Please see the communication from Argentina at the end of this document.

Please see the communication from Argentina at the end of this document.

Please see the communication from Argentina at the end of this document.

Communication from Argentina: I have been instructed by the competent authorities to inform you that the questions posed by Switzerland refer to issues dealt with at the following consultations with the United States in the framework of the DSU: "Argentina - Patent Protection for Pharmaceuticals and Test Data Protection for Agricultural Chemicals" (WT/DS171) and "Argentina - Certain Measures on the Protection of Patents and Test Data" (WT/DS196). It should also be mentioned that Switzerland is taking part in both consultations as a third party. In the light of the above and in order to protect its rights at the said consultations, Argentina will not be answering the questions posed by Switzerland within the framework of the review of national implementing legislation by the Council for TRIPS. Argentina wishes to take this opportunity to point out to Switzerland that, although it confirms its willingness to fulfil its obligations with regard to the review of national implementing legislation by the Council for TRIPS, it is in its interest to ensure that the review process does not prejudice or affect either the course or the outcome of the consultations being held under the DSU.

Argentina's legislation does indeed include measures to protect public health and nutrition and to promote the public interest in sectors of importance to the country's socio-economic and technological development. These principles are enshrined mainly in the National Constitution, which establishes the primacy of international treaties over domestic law.

Copyright Law No. 11.723 remains in force, as amended by Law No. 25.036, which includes software and databases among the works protected under Article 1 (Boletín Oficial of 11 November 1998). Law No. 25.140 (Boletín Oficial of 24 September 1999) ratified the Berne Convention (Paris Act of 1971), although it should be pointed out that prior to acceding to the treaty Argentina was already applying the substantive provisions of the Convention's Brussels Act of 1948.

Law No. 25.036 amending Law No. 11.723 incorporates, in the list of protected works in Article 1 of the latter, computer programs in the form of either source or object codes and compilations of data or other material, thus protecting them on the same terms as literary works.

Pursuant to Article 2 of Law No. 11.723, copyright in a work listed in Article 1 of the Law includes the right to dispose of the work, which in turn includes rental rights in respect of computer programs and cinematographic works.

Law No. 11.723 covers phonograms on the same terms as other protected works. The protection of performers is provided under Article 56 of the Law, its Implementing Decree No. 41.233/24, Decree No. 746/73 and Decree No. 1.670/74, which grant performers exclusive rights in respect of the fixation of their performances and a right of remuneration for public use of their recorded performances. Law No. 23.921 ratified the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Limitations on exclusive copyright are set forth in Articles 10 and 36 of Law No. 11.723, which provide for the right to quote, solely for educational or scientific purposes, commentaries, reviews or notes relating to intellectual works; the right to perform works already published, at public functions organized free of charge by teaching establishments for educational purposes; and the performance, free of charge, of musical works by orchestras, bands, fanfares and choirs belonging to national, provincial or municipal institutions.

The term of protection for literary and artistic works, including software, databases and phonograms, is 70 years from the date of the author's death. Argentine legislation and case law deem the same term of protection to be applicable, by analogy, to performers.

Since Argentina has acceded to the Berne Convention (Paris Act of 1971), the protection of foreign works is governed by Article 18 of the Convention. Hence, a foreign work is protected for as long as the term of protection in its country of origin has not expired.

The following are recognized as signs under Article 1 of Law No. 22.362: one or more words, with or without meaning; drawings; emblems; monograms; engravings; stampings; seals; images; bands; combinations of colours applied to a particular place on the goods or their packaging; wrappers; containers; combinations of letters and numbers; letters and numbers insofar as they concern the special design thereof; advertising phrases; reliefs having distinctive capacity; and all other signs having such capacity. The list in Article 1 is not exhaustive and provides examples of signs that may be registered as trademarks to distinguish goods or services. Argentine case law has extended this merely indicative list of signs eligible for registration as trademarks (and therefore entitled to protection) to all signs that have distinctive capacity and that are not liable to mislead consumers. Owners of registered trademarks enjoy an exclusive right of use entitling them to prohibit third parties from using the signs in question or any other sign liable to cause confusion.

Articles 1, 27, 28, 29 and 30 of the Trademark Law protect both goods and services, and any sign with distinctive capacity, including trade descriptions. To be eligible for registration under the Trademark Law, a sign does not have to be visually perceptible, which means that sound and olfactory marks may be registered inasmuch as they have distinctive capacity. Article 1 of the Law expressly specifies that containers shall be eligible for registration.

Although use is not a condition for trademark registration, it is required for renewing the validity of the trademark, as specified in Article 5 of Trademark Law No. 22.362. Indeed, a trademark "may be renewed indefinitely for like periods provided that it was used, within five years preceding each expiry date … ". Use does not have to be continuous for registration to be maintained. Article 5 further states that use may be established through the marketing of a product, the performance of a service, or utilization of the trademark as part of the designation of an activity.

Trademarks are valid for ten years and may be renewed indefinitely for like periods.

Article 5 of Law No. 22.362 applies in the event of registration renewal. There are no special requirements other than the filing of a sworn declaration of use. See the reply to question 11 above.

The Trademarks Office is empowered to refuse registration of a trademark containing an appellation of origin, pursuant to the provisions of Article 3(c) of Trademark Law No. 22.362, which prohibits the registration of both domestic and foreign appellations of origin. Moreover, any party with a legitimate interest who considers that rights in an appellation of origin have been infringed may request the invalidation of the registered trademark, pursuant to Article 24(a) of the Trademark Law. The following provisions also apply: - Article 7 of Law No. 22.802 on Fair Trade; - Article 1135 of the Argentine Food Code (Law No. 18.284); - Article 1 of Law No. 25.156 on Competition; - Article 4 of Law No. 24.240 on Consumer Protection.

Article 22.1 of the TRIPS Agreement provides that "geographical indications are … indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin". Article 3(c) of Law No. 22.362 prohibits the registration of national and foreign appellations of origin as trademarks and indicates, in language similar to the protection required by the TRIPS Agreement, that "an appellation of origin is understood to mean the name of a specific country, region, place or geographical area that serves to designate a product originating therefrom, the qualities and characteristics of which are due exclusively to the geographical environment". The Article 3(c) definition covers "geographical indications" and "appellations of origin", as defined in Articles 4 and 13, respectively, of Law No. 25.163.

The term geographical indication means a name identifying a good as originating from a specific region, locality or area of production in the national territory that is no larger than a recognized province or interprovincial zone. A geographical indication is justified solely where a given quality and the characteristics of the good in question are essentially attributable to its geographical origin.