RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/271/Add.3
16 July 2001
(01-3511)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
Response from Argentina to Questions Posed by the
European Communities and their Member States
Addendum
By means of a communication from the Permanent Mission of Argentina, dated 15 June 2001, the
Secretariat has received the following replies to questions posed by the European Communities and their
member States, as circulated in document IP/C/W/274.
_______________
A. G ENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in sectors of vital importance to your socio-economic
and technological development as mentioned under Article 8 of the TRIPS Agreement.  If yes,
please explain how such measures are consistent  with the provisions of the TRIPS Agreement.
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.
B. C OPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS
Agreement, which requires Members to comply with Articles 1-21 of the Berne Convention and the
Appendix to the Berne Convention (1971).
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 prov isions of the Convention's Brussels Act of 1948.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.IP/C/W/271/Add.3
Page 2
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.
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
Pursuant to Article 2 of Law No. 11.723, copyright in a work listed in Article 1 of the Law shall
include the right to dispose of the work, which in turn includes rental rights in respect of computer
programs and cinematographic works.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organizations under your legislation.
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.
6. Please state whether your legislation provides fo r any limitation or exception in relation to
each of the rights described above in accordan ce with the relevant provisions of the Berne and
Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
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 educatio nal 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, fanf ares and choirs belonging to national, provincial or
municipal institutions.
7. Please state the terms of protection of each right described above and the work or subject
matter to which it applies.
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.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligatio n of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
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.IP/C/W/271/Add.3
Page 3
C. T RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.
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 exclusiv e right of use entitling them to prohibit third
parties from using the signs in question or any other sign liable to cause confusion.
10. Please confirm whether or not services are a protectable subject matter in your trademark
law.  Please confirm if signs, such as trade names,  are protectable.  Please describe if elements such
as sound, perfumes and containers are protectable.
Articles 1, 27, 28, 29 and 30 of the Trademark La w 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.
11. Please explain what the requirements of use a re, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a registration
in that respect.
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.
12. Please confirm whether or not your legislation permits that the registration of trademarks
be indefinitely renewable.
Trademarks are valid for ten years and may be renewed indefinitely for like periods.
13. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.IP/C/W/271/Add.3
Page 4
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.
D. G EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
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 Trading;
- 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.
15. Please give the definition of a geographical indication in your legislation.
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.
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
Law No. 25.163 on Wines and Spirits sets out, in its Article 7 for example, the procedure for
recognition of geographical indications.
17. Please describe how additional protection is granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
Law No. 25.163 relating to the geographical denomination of wines and spirits establishes a
register of geographical indications for wines and spirits, which grants parties that fulfil the criteria under
the Law an exclusive right to use indications of source, geographical indications and appellations of
origin.  It also lays down a system of prohibitions, infringements, penalties and fines.
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction.  Please provide examples of the us e of the exceptions by courts or lists of names
considered as generic in your jurisdiction.IP/C/W/271/Add.3
Page 5
The methodology for using the exceptions under the Agreement is set forth in various provisions
of domestic law, such as Article 32 of Law No. 25.163.  However, the assessment of whether a name is to
be considered as generic must be conducted on a case-by-case basis, at a given moment in time and for a
specific region.
19. Please provide examples of geographical indications for wine under the applicable
legislation and how they comply with the definition of Article 22.1 of the TRIPS Agreement.
As the implementing legislation has not yet been passed, no geographical indication has been
registered to date, but Law No. 25.163 lays down the requirements for complying with Article 22.1.
20. Please explain which legal criteria determin e whether the use of a certain geographical
indication for wine, which, although literally true as to the territory, region or locality in which the
wine is made, falsely represents to the public that the goods originate in another territory
(Article 22.4 of the TRIPS Agreement).
The applicable legal criterion stems from Article 3(d) of the Trademark Law, which prohibits the
registration of trademarks that are liable to mislead th e public as to the nature, properties, merit, quality,
manufacturing methods, purpose, origin, price or other characteristics of the goods or services that they
are intended to distinguish.
Other applicable provisions include:- Chapter V (Scope and Obligations) of Law No. 25.163 on Wines and Spirits, relating to the
protection of indications of source, geographical indications and appellations of origin;
- Article 1.135 of the Argentine Food Code, which prohibits appellations of origin using
names other than the true places of production of distilled spirits or liqueurs;
- Article 4 on information to consumers and Article 7, inter alia , of Law No. 24.240 on
Consumer Protection;
- Article 5, inter alia , of Law No. 22.802 on Fair Trading;
-A r t i c l e  1 0 bis of the Paris Convention (Law No. 17.011) and Article 1, inter alia , of
Law No. 25.156 on Competition.
21. Please explain how your legislation implements the obligation of Article 24.3 of the TRIPS
Agreement not to diminish the level of protection  of geographical indications that existed in a
Member immediately prior to the entry into force of the WTO Agreement, where a new
Argentinian geographical indication conflicts with  an existing, well-known geographical indication
for wines of another WTO Member.
Prior to the entry into force of the TRIPS Agreement, the protection of geographical indications
was governed by the Laws on Fair Tradin g (No. 22.802), Trademarks (No. 22.362), Consumer
Protection (No. 24.240) and Unfa ir Competition (No. 22.262).
The situation referred to in the above question has not arisen so far.  In view of the recent
enactment of Law No. 25.163 on Wines and Spirits, no Argentine geographical indication has beenregistered to date.IP/C/W/271/Add.3
Page 6
E. I NDUSTRIAL DESIGNS
22. Please explain whether or not your legislation extends to the protection of designs dictated
essentially by technical or functional considerations.  Please explain how textile designs are
protected.
The legislation on industrial designs focuses exclusively on ornamental aspects and therefore
does not extend protection to designs dictated by technical or functional considerations, which are
expressly excluded (but are eligible for protection as utility models under Articles 53 to 58 of Law
No. 24.481).  Argentina has no specific legislation for the protection of textile designs.  These are eligible
for protection under the legislation governing indust rial designs (Decree Law No. 6.673/63 ratified by
Law No. 16.478).
23. Please explain how your legislation protects ri ght holders of a design against importing of
articles bearing embodied or copied design.
The legislation governing industrial designs provides for both civil and criminal action to protect
the owner of an industrial design against the importation of articles presenting characteristics that are
covered by the registration of a design or its copies (Articles 19 to 27 of Decree Law No. 6.673/63).
24. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
Argentine legislation does not provide for such a mechanism.
25. Please indicate for what period of time your legislation grants protection for industrial
designs.
The term of protection granted to the owner of an industrial design under Decree Law
No. 6.673/63 (ratified by Law No. 16.478) is five years counted from the date of the deposit and may be
extended for two consecutive like periods, at the owner's request.
F. P ATENTS
26. Please describe how your legislation defines the notions of:  novelty, inventiveness and
industrial application.
Argentina will not be answering the questions unde r this heading, as their content directly or
indirectly refers to the dispute settlement procedure initiated by the United States against Argentina on
patents and confidential information, in which the European Communities are participating as a third
party.
27. Please explain whether or not in your legislatio n, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how these
exclusions are applied in legal as well as practical terms.
See Argentina's communication in response to question 26.IP/C/W/271/Add.3
Page 7
28. Please explain whether your legislation prov ides for the exclusion of inventions from
patentability based on ordre public  or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
See Argentina's communication in response to question 26.
29. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation.  If so, please explain the relevant section of your legislation
and explain its formulation.
See Argentina's communication in response to question 26.
30. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
See Argentina's communication in response to question 26.
31. Please describe how micro-organisms, non-essentially biological processes, microbiological
processes and plant varieties are protected in your legislation.  Please explain, in this respect, the
relevant sections of your legislation.
See Argentina's communication in response to question 26.
32. Please explain how your legislation protects pa tent right holders against the importing and
against the offering for sale of a patented invention.
See Argentina's communication in response to question 26.
33. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
See Argentina's communication in response to question 26.
34. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.
See Argentina's communication in response to question 26.
35. Please explain the additional conditions, if an y, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TR IPS Agreement (e.g. submission of justification for
access to genetic material or prior inform consent to its use).  If such additional conditions exist,
please point out the relevant legislations and describe the additional conditions in detail.
See Argentina's communication in response to question 26.
36. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
See Argentina's communication in response to question 26.IP/C/W/271/Add.3
Page 8
37. Please explain whether or not your legislation provides for compulsory licensing.  If so,
please explain in detail the conditions under which a compulsory licence may be granted.  In
particular, please explain how your national le gislation considers individual merits in the
authorization of such use.
See Argentina's communication in response to question 26.
38. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on  reasonable commercial terms and conditions and
that such efforts have not been su ccessful within a reasonable period of time.  In this context, how
do you define "reasonable period of time".  Please also explain how your legislation ensures that the
use of a compulsory licence shall be authoriz ed predominantly for the supply to the domestic
market of the Member authorizing such use.
See Argentina's communication in response to question 26.
39. Please state if your legislation grants addition al protection for innovations after the 20 years
of patent protection has lapsed.
See Argentina's communication in response to question 26.
40. Please explain how your legislation provides for the enhanced patent protection of patents
or patent applications pending on 1 January 1995.
See Argentina's communication in response to question 26.
41. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
See Argentina's communication in response to question 26.
G. L AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
42. Please describe how your legislation protects topographies.
Integrated circuits are not protected by specific legislation but are covered by the various
intellectual property laws, depending on the context in which they are used.  In other words, where
integrated circuits are regarded as intellectual creations (i.e. literary, artistic or scientific works) and meet
the requirement of originality, they shall be covered by Copyright Law No 11.723;  where they constituteinventions that are new, involve an inventive step and are capable of industrial application, or where they
involve a new configuration or arrangement that brings  a functional improvement, they shall be protected
by Law No. 24.481 on Patents and Utility Models;  where, on the other hand, they involve a configuration
or aspect incorporated in, or applied to, an industrial product that gives them ornamental value, they shall
be protected by Decree Law No. 6.673/63;  and so on.
43. Please explain what protection your national le gislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies includingintegrated circuits or other articles in which a topography is incorporat ed in accordance with
Article 36 of the TRIPS Agreement.IP/C/W/271/Add.3
Page 9
Depending on the law under which protection is afforded, the applicable provisions are those
specifying that a right holder may bring an action against any party that imports, sells or otherwise
distributes for commercial purposes a protected lay out-design or a product incorporating a protected lay-
out design.  All Argentine intellectual property laws in fact provide for remedies that may be invoked by
right holders in the event of infringement of their rights.
44. Please explain how your legislation provides for the derogation from Article 36 as specified
in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds to
know when acquiring an integrated circuit or an article incorporating such an integrated circuit
that it contains an unlawful topography.
There is no specific legislation, but the applicable principles are those of good faith and abuse of
rights as enshrined in the Civil Code.
45. Please state the term of protection granted by your legislation to topographies.
The term of protection depends on the law that applies to the protection of the layout-design in
question.  In  other words, where the layout-design is protected by a patent, the term is 20 years counted
from the date of filing of the application;  where it is protected as a utility model, the term is 10 years
from the date of filing of the application;  where it enjoys copyright protection, the term is 70 years from
the date of the author's death;  and so on.
H. P ROTECTION OF UNDISCLOSED INFORMATION
46. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
Argentina will not be answering the questions unde r this heading, as their content directly or
indirectly refers to the dispute settlement procedure initiated by the United States against Argentina onpatents and confidential information, in which the European Communities are participating as a third
party.
47. Please explain how your legislation defines undisclosed information.
See Argentina's communication in response to question 46.
48. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
See Argentina's communication in response to question 46.
I. E
NFORCEMENT
49. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Argentina will not be answering the questions unde r this heading, as their content directly or
indirectly refers to the dispute settlement procedure initiated by the United States against Argentina onpatents and confidential information, in which the European Communities are participating as a third
party.IP/C/W/271/Add.3
Page 10
50. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.
See Argentina's communication in response to question 49.
51. Please describe how your legislation authorizes judges to order production of evidence by
the opposing party.  Please give precise information on what measures are taken to ensure theprotection of confidential information.
See Argentina's communication in response to question 49.
52. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
See Argentina's communication in response to question 49.
53. Please quote what provisions of your legislation authorize judges to order the payment to
the right holder of adequate damages to  compensate the injury he suffered.
See Argentina's communication in response to question 49.
54. Please quote what provisions of your legislation authorize judges to order the payment of
the right holder's expenses by the infringer.
See Argentina's communication in response to question 49.
55. Please explain if and how judges have the au thority to order that infringing goods are
placed outside channels of commerce or destroyed.
See Argentina's communication in response to question 49.
56. Please quote what provisions of your legislation authorize judges to indemnify a defendant
in the event of abuse by the plaintiff.
See Argentina's communication in response to question 49.
57. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
See Argentina's communication in response to question 49.
58. Please identify the competent authorities in  your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.
See Argentina's communication in response to question 49.
59. Please indicate whether or not procedures  are available to suspend the exporting of
counterfeit goods.
See Argentina's communication in response to question 49.IP/C/W/271/Add.3
Page 11
60. Please quote what provisions of your legisl ation authorize the competent authorities to
order the destruction or disposal of infringing goods.
See Argentina's communication in response to question 49.
61. Please indicate whether or not your legislation provides for a de minimis  imports exception.
See Argentina's communication in response to question 49.
62. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
See Argentina's communication in response to question 49.
__________