The Free Trade Agreement between Dominican Republic, Central America and United States of America (CAFTA-DR) has resulted in substantial amendments to the intellectual property field in El Salvador. Generally the amendments, which affect most of Central America, are focused mainly in the Copyrights field.
CAFTA incorporates into the Salvadoran internal laws the following treaties into Salvadoran law: The Patent Cooperation Treaty (1970); The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1980); The WIPO Copyright Treaty (1996) and The WIPO Performances and Phonograms Treaty (1996). El Salvador is expected to ratify the following treaties before January 1, 2008: The International Convention for the Protection of New Varieties of Plants (1991); The Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974) and "The Trademark Law Treaty (1994). El Salvador has also agreed to make reasonable efforts to ratify The Patent Law Treaty(2000); The Hague Agreement concerning the International Registration of Industrial Designs (1999) and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989).
As far as Trademarks, the Treaty establishes innovations including the laws the collective trademarks, certification, sound, smelling trademarks and trademarks that at the same time can be Geographical Indications. It also eliminates mandatory registration of License of Use recordings at the Intellectual Property Register, and only requires a License Agreement contract between the parties to make valid the Licensed Rights. Most importantly, the Treaty establishes the possibility of cancellation of a registered trademark because of lack of use of during the five years preceding the initial date of the cancellation action. These changes the "attributive system of inscription" that El Salvador had before in which it was not necessary that a trademark be in use to defend it either on the Administrative or Judicial levels. A registration can also be cancelled partially, but only for those products that the inscription covers but are not in use. Cancellation can also be used as a defense against existing similar trademarks not currently in use. In this last case, the owner of a trademark can prove the use of the trademark through mechanisms such as commercial invoices, accounting documents, advertising promotions or any type of publicity, no matter if the trademark is being used inside El Salvador or not. On the other hand, CAFTA introduces serious amendments to the Penal Code for violation of distinctive signs. The punishment is from two to four years imprisonment for copying, imitating, modifying, or in any way using a distinctive sign property of a third party or the product protected by the distinctive sign.
As far as Copyrights, the protection has been extended from fifty to seventy years after the author dies. The treaty guarantees the protection of authors, artists, execution interpreters and producers of phonograms in the digital area, establishing effective actions against the violation of copyrights in the audiovisual and software fields. Furthermore, it establishes equal treatment among authors, artists and performers. Additionally, the manufacturing, assembling, modification, importation, exportation, sale, leasing or distribution of decoders of satellite signals will be penalized. The penal code amendments impose two to 4 years of imprisonment for infringement on a commercial scale, defined as "the distressing infringement meaningful of copyrights and connected rights, with the objective of obtaining a commercial advantage or private economic profit, as well as the distressing infringement that does not have a direct or indirect economic profit, if it causes a larger economic harm to an infraction of less value." Finally, it establishes the punishment of aggravated offenses of copyright violation at four to six years of imprisonment.
In the Patents field, the Treaty reiterates the protection of inventions, being those products of procedures, maintaining the requirements of international registration: inventive levels, novelty and industrial application. Novelty is represented by the term of protection to the patent, to compensate "unreasonable delays" in the granting of the patent, establishing as unreasonable delay a period of more than five years since the filing date of the application, or three years counted from the date of the request of the test. The test data will be protected against unfair commercial use for a period of five years for pharmaceutical products and ten years for agricultural chemistry products, periods counted from the approval date for the commercialization in Salvadoran territory.
Finally, the Treaty emphasizes that any infraction to an intellectual property as well as the importation or exportation of goods that constitute infringement, can be prosecuted without the consent of the right holder in order to preserve the proof and to prevent continuing infringement. This is a radical change in regard to the traditional way to prosecute an infringement against Intellectual Property violations, which was based on the accusation of the rights holder in order to proceed.
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