What are the necessary documents for design protection?
The following documents are needed:
- Power of Attorney, notarized and legalized by the Argentine consul or by apostille; it must be filed along with the application or thereafter within a non-extendable 40-day term; failure to timely submit this document automatically causes forfeiture of the application.
- Priority document (certified copy of the priority application, issued by the home PTO); no legalization needed, but it must be translated into Spanish; it must be filed along with the application or thereafter within a non-extendable 90-day term; failure to timely submit this document automatically causes forfeiture of the priority.
- assignment of priority rights, when the foreign application whose priority is claimed has been filed by someone other than the applicant in Argentina; no notarization or legalization needed, but it must be translated into Spanish; it must be filed along with the application or thereafter within a non-extendable 90-day term; failure to timely submit this document automatically causes forfeiture of the priority.
- A short description.
- Formal drawings.
What are the specific requirements for the description?
According to the regulatory decree, it must briefly set forth the “elements which compose the model or design, in order to supplement the illustration provided by the drawings”. There are no other specific requirements.
The most advisable course of action is to use a brief description, limited in essence to the listing of the drawings. At best, an overabundant disclosure will be useless, and at worst, albeit exceptionally, it may be used in court to try to limit the scope of the design if the drawings are ambiguous.
A design application can include a maximum of 50 embodiments, provided they are “homogeneous”, i.e. present a common esthetic features.
What are the specific requirements for formal drawings?
In Argentina the drawings are very important because they determine the scope of the design. The description may be used to supplement or support the drawings, but the drawings will always prevail should they differ from the description. For this reason, the specific domestic requirements for formal drawings must be taken into account carefully.
There is no limit to the number of views per embodiment. As a rule, the following views are advisable: front perspective, front, rear, right, left (unless it is a mirror view of the right), top and bottom. They must be submitted on 210 x 297 mm Bristol Board with a 10 mm unlined free margin, with the following features:
- The first sheet may not include more than three figures.
- Figure 1 must be a perspective view.
- Figures must be consecutively numbered (i.e., Fig. 1, Fig. 2, Fig. 3, etc.).
- In the main figures (main embodiment), the characteristic features of the design must be illustrated in a thicker continuous line, while those features which are not claimed, or are known, or generically belong to the context, must be shown in a finer or broken line.
- In the alternative embodiments, the details which affect the appearance of the basic design or transform it into a different product but not into a different design, must in turn meet the following
- features which are different from the basic design must be shown in thinner or broken lines, while unchanged features must be illustrated in the same continuous line as in the basic design;
- each example must be numbered consecutively (in Spanish: Ej. 1, Ej. 2, Ej. 3, etc.);
- if the same example is shown in different positions, then these too must be numbered consecutively (in Spanish: Ej. 1a, Ej. 1b, Ej. 1c,
- Up to 50 embodiments are allowed in a single application, with the following
- all embodiments must be homogeneous, i.e. present a common esthetic features;
- the ornamental features in the secondary embodiments that change compared to the main figures must be drawn in broken lines;
- in the secondary embodiments no excluded parts may be shown (that is, excluded parts may not be shown in broken lines to avoid ambiguity)
- in the secondary embodiments those views that keep unchanged compared to the those included in the main figures must be deleted.
Photographs may be used, but the traditional pen-and-ink drawings can result in a broader scope because as a rule they will contain fewer details that can introduce unwanted limitations. Also, these drawings can show excluded portions drawn in broken lines. On the other hand, photographs may be more convenient when showing objects that contain a particular surface finish that can not be easily shown via shading.
In view of these specific requirements and features for formal drawings in Argentina, it is best to consult local counsel beforehand, to avoid official objections and the attendant expenses.
What is the procedure for securing design protection in Argentina?
The procedure is basically a deposit without a substantive examination, be it of the subject matter or the substantive requirements (ornamentality, novelty, etc.). The Argentine PTO will look into the formal requirements, i.e. whether all the necessary data (registrant’s name and address, title, authorship, etc.) and papers (Power of Attorney, priority document, assignment, specification, drawings, etc.) have been set forth and/or filed, especially with regard to drawings, and including homogeneity.
It is not mandatory that the drawings filed in the priority application be identical to those filed in the national application in order to claim priority rights, but the differences may only refer to the following aspects: (i) number of views; (ii) excluded parts drawn in broken lines; (iii) shading lines; (iv) photographs replacing line drawings and vice versa; (v) number of embodiments.
In 2007 Argentina adopted the 8th edition of the Locarno Classification for Industrial Designs. The class does not affect the protection afforded by the design.
There is no opposition procedure nor an expedited procedure. A way to expedite registration of a design application is to file all requisite documents simultaneously with the application. As mentioned above, late filing is allowed: 40 days for the Power of Attorney, and 90 days for the formal drawings, the priority document, the assignment of priority rights, and their respective translations. These terms may not be extended. No rectification proceedings are foreseen in the statute.
The average length of time from the date of filing until the issue date for design registrations is of 1-2 months if all required documents (Power of Attorney, formal drawings, priority document, assignment of priority rights) are filed simultaneously with the application. If late filings (i.e., not simultaneous with the application) are needed, the average pendency may take 5-6 months. There is no protection for the design while the application is pending because it is kept secret, but once it is registered the registration will be deemed valid and effective as of the filing date.
Design applications are not published during their pendency. The publication is carried out after grant in electronic form via the PTO’s web page, but only basic data and a quite small version of the figure 1 can be accessed. These publications can be easily searched in the PTO’s web page. After grant the physical official file becomes available to the general public; there are no microfiche or scanned copies of these files.
On the other hand, a design that has been abandoned or refused is not open to the public. A fresh application may be filed, whose validity will be conditional on meeting the statutory requirements on the new filing date, including absolute novelty.
The deed (official certificate of registration) is delivered to the patent agent or the applicant in paper format. There is no procedure under Argentine law to change a registered design: there is no certificate of correction or reissue procedure, except for obvious typos in the deed or in the applicant’s data.