After more than eight years of litigation, the Pablo Neruda Foundation (heir to the rights of the Nobel Prize-winning Chilean poet Pablo Neruda) obtained a favourable decision from the Industrial Property Appeals Court regarding its annulment action against the Reyes hereditary succession.

In 2006 the Reyes hereditary succession, composed of Neruda's descendants, registered the trademark PABLO NERUDA to protect services included in Class 43. In 2008 the Pablo Neruda Foundation filed an annulment action against the trademark, invoking Article 20(C) of the Industrial Property Act, which protects use of "the name, pseudonym or likeness of any natural person, except with the consent of that person or of his heirs where he is deceased". Under this requirement, the heir of the name to be used must authorise the trademark application, which, in this case, the foundation did not do.

In the first-instance decision, the National Institute of Industrial Property accepted the Pablo Neruda Foundation's argument, stating that it was the legitimate heir of Pablo Neruda's intellectual and industrial property rights, it thus declared the nullity of the impugned trademark.

However, the Reyes hereditary succession filed appeal recourse before the Industrial Property Appeals Court, arguing that it was Neruda's legitimate heir and was hence entitled to register his name as a trademark.

The analysis of the case was protracted, mainly due the amount of documental proof filed by both parties, including several agreements and contracts that only partially covered the different goods and rights left by Neruda to his heirs. Further, changes to the Succession Law from the time of Neruda's death to when the case was heard were subject to discussion.

The Industrial Property Appeals Court eventually confirmed the first-instance decision and the foundation's status as the only legitimate heir of Neruda's rights.

This decision is not only relevant as an example of the application of the IP Law and the Succession Law, but it also refers to one of Chile's most famous names.

For further information on this topic please contact Juan Pablo Zamora Iturra ?at Montt y Cia SA by telephone (+56 22 233 8266) or email (juan.zamora@monttgroup.com). The Montt y Cia SA website can be accessed at www.monttcia.com.

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