All questions

Intellectual property

i Brand search

Brand and other intellectual property searches in Argentina are partially available through the National Institute of Industrial Property (INPI) database.

Trademark searches can involve phonetic and graphic searches, but neither of these is available through the INPI database; only searches for identical marks are available, together with searches based on the name of the applicant or holder of the trademark. A similar situation obtains as regards patent, utility model, or industrial model or design searches.

In view of this, to ascertain whether there may be a conflict between pre-existing trademarks, patents, utility models, industrial models or designs and the ones a franchisor or franchisee wants to exploit in Argentina, it is advisable to obtain the opinion of an expert.

ii Brand protection

Trade names, trademarks, patents, utility models, industrial models or designs, copyrights, trade secrets, confidential information or know-how can (whether all or a combination of these) be part of a franchise agreement.

While trade names, copyrights, trade secrets, confidential information or know-how do not need to be registered to obtain ownership, trademarks, patents, utility models and industrial models or designs do need to be registered.

Trademarks can be applied for by corporations or individuals, both national and foreign. Once the trademark application has been filed, the Trademark Office performs a formal examination and, provided formalities are complied with, orders its publication in the Trademarks Bulletin. After publication takes place, third parties have a 30-day term to file oppositions based on legitimate interests. If opposition are filed, they block the trademark's registration procedure until either an agreement is reached with the opponent or a lawsuit is filed against the opponent (following a mandatory prior instance of mediation). The Trademark Office does not resolve opposition matters; these must be resolved by the courts. After the period for oppositions, the Trademark Office performs an in-depth examination and decides either to issue an office action, if there are matters to be resolved, or to grant the registration.

Other intellectual property rights have different registration processes, with the patent and utility model registration process being the most lengthy and complex, and the industrial model and design registration process being the shortest and simplest.

The patent and utility model registration process has stages similar to those of the trademark registration process (filing, formal examination, publication, opposition period, in-depth examination, rejection or registration).

The industrial model and design registration process differs from the others mentioned above, since only a formal examination is performed and, provided the formal requirements are met, the industrial model or design is granted for a five-year period, which can subsequently be extended for two additional five-year periods.

Miscellaneous

Current franchising regulations provide that the franchisor must be the exclusive owner of the set of intellectual rights, trademarks, patents, trade names, copyrights and other rights included in the franchise system; or, where appropriate, have the right to their use and transmission to the franchisee under the terms of the agreement.

iii Enforcement

According to Argentine regulations, the franchisor shall defend and protect the use by the franchisee of the intellectual property rights granted under the franchise agreement.

However, in international franchise agreements, the enforcement of those rights is contractually the responsibility of the franchisee, which must be specially empowered to do so, without prejudice to the franchisor's obligation to provide the franchisee with all the documentation and other elements necessary for that purpose.

In any case, the franchisee is entitled to intervene as an interested party, in defence of those rights in any relevant administrative or judicial proceedings, through the channels admitted, and to the extent allowed, by procedural law.

iv Data protection, cybercrime, social media and e-commerceData protection

Argentine data protection regulations apply to any processing of personal data that takes place within Argentina.

Personal data is broadly defined as information of any kind referring to identified or identifiable natural or legal persons.

In view of the above, in franchise agreements, the party processing personal data in Argentina will have to comply with all data protection regulations. These include, among others, (1) a requirement for the prior informed and express consent of the data subject for the processing of his or her data (with some exceptions specifically set out in the regulations), (2) the grant of a right for data subjects to access, update, amend and delete outdated or incorrect information, (3) the obligation for the data controller and processor to take confidentiality and security measures, (4) the obligation for the data controller to register the databases, (5) the obligation to use the data only in connection with the purpose for which they were collected, and (6) the obligation to delete the data when no longer necessary for the purposes for which they were gathered.

As regards cross-border transfers of data, the Argentine data protection regulations prohibit the transfer of personal data to countries that do not provide an adequate level of protection. However, the prohibition is not applicable when either:

  1. the data subject has expressly consented to such a transfer; or
  2. data is exported for outsourcing purposes by means of an international data transfer agreement (IDTA) between the transferor and the transferee, under which the latter undertakes to comply with the Argentine data protection regulations.

Failure to comply with Argentine data protection regulations may lead to sanctions being imposed by the data protection authority, currently the Public Information Access Agency, and to civil and, in some cases, criminal liability.

In 2016, with a view to replacing the current Data Protection Law, the National Directorate for the Protection of Personal Data (DNPDP) prepared a draft bill, which has not yet been submitted to the National Congress. This draft bill reproduces some of the principles of the European General Data Protection Regulation.

Cybersecurity

The Argentine Criminal Code currently penalises different cybercrimes. Furthermore, Argentina has recently become a party to the Budapest Convention on Cybercrime.

Social media and e-commerce

Social media and e-commerce are not expressly regulated in Argentina. However, they are subject to general laws, such as criminal law, contract law, data protection law, consumer law, data protection law and unfair-competition law, among others.