El Salvador - Protecting Intellectual PropertyEl Salvador-Intellectual Property
In any foreign market companies should consider several general principles for effective protection of their intellectual property. For general background and more information, please link to our article on Protecting Intellectual Property (https://www.export.gov/article?id=Protecting-Intellectual-Property) and to our IPR protection website Stopfakes.gov.
Several general principles are important for effective management of intellectual property (“IP”) rights in El Salvador. First, it is important to have an overall strategy to protect your rights. Second, IP is protected differently in El Salvador than in the United States. Third, rights must be registered and enforced in El Salvador, under national legislation. For example, your U.S. trademark and patent registrations will not protect you in El Salvador. There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in specific countries depends, basically, on the national laws of that country. However, most countries do offer copyright protection to foreign works in accordance with international agreements.
Registration of patents and trademarks is on a first-in-time, first-in-right basis, so you should consider applying for trademark and patent protection even before selling your products or services in the Salvadoran market. It is vital that companies understand that intellectual property is primarily a private right and that the U.S. government generally cannot enforce rights for private individuals in El Salvador. It is the responsibility of the rights holders to register, protect, and enforce their rights where relevant, retain their own counsel and advisors. Companies may wish to seek advice from local attorneys or IP consultants who are experts in Salvadoran law. Although a firm or individual may apply for a patent or trademark directly, most foreign firms hire local law firms specializing in intellectual property. The U.S. Commercial Service’s Business Service Provider program has a partial list of local lawyers
at: http://www.export.gov/elsalvador/businessserviceproviders/index.asp?bsp_cat=80120000
While the U.S. Government stands ready to assist, there is little we can do if the rights holders have not taken these fundamental steps necessary to securing and enforcing their IP in a timely fashion. Moreover, in many countries, rights holders who delay enforcing their rights on a mistaken belief that the U.S. Government can provide a political resolution to a legal problem may find that their rights have been eroded or abrogated due to legal doctrines such as statutes of limitations, laches, estoppel, or unreasonable delay in prosecuting a law suit. In no instance should U.S. Government advice be a substitute for the obligation of a rights holder to promptly pursue its case.
It is always advisable to conduct due diligence on potential partners. Negotiate with a full understanding of the position of your partner and give your partner clear incentives to honor the contract. Consider carefully, however, whether to permit your partner to register your IP rights on your behalf. Doing so may create a risk that your partner will list itself as the IP owner and fail to transfer the rights should the partnership end. Keep an eye on your cost structure and reduce the margins (and the incentive) of would-be bad actors. Projects and sales in El Salvador require constant attention. Work with legal counsel familiar with Salvadoran laws to create a solid contract that includes non-compete clauses, and confidentiality/non-disclosure provisions.
An overview of El Salvador’s IPR regime can be found on the WIPO website at:
http://www.wipo.int/wipolex/en/profile.jsp?code=SV
It is also recommended that small and medium-sized companies understand the importance of working together with trade associations and organizations to support efforts to protect IP and stop counterfeiting. There are a number of these organizations, both El Salvador and U.S.-based. These include:
IP Attaché Contact for El Salvador
Cynthia Henderson
Intellectual Property Rights Attaché for Mexico, Central America and the Caribbean
U.S. Trade Center
Liverpool No. 31 Col. Juarez
C.P. 06600 Mexico City
Telephone: +52 55 5080 2189
E-mail: cynthia.henderson@trade.gov
Claudia Rojas
Senior Legal Specialist for Intellectual Property
U.S. Trade Center
Liverpool No. 31 Col. Juarez
C.P. 06600 Mexico City
Telephone: +52 55 5080 2000, ext. 5222
E-mail: Claudia.rojas@trade.gov
For more information, contact ITA’s Office of Intellectual Property Rights Director, Stevan Mitchell at Stevan.Mitchell@trade.gov. Prepared by our U.S. Embassies abroad. With its network of 108 offices across the United States and in more than 75 countries, the U.S. Commercial Service of the U.S. Department of Commerce utilizes its global presence and international marketing expertise to help U.S. companies sell their products and services worldwide. Locate the U.S. Commercial Service trade specialist in the U.S. nearest you by visiting http://export.gov/usoffices.
Several general principles are important for effective management of intellectual property (“IP”) rights in El Salvador. First, it is important to have an overall strategy to protect your rights. Second, IP is protected differently in El Salvador than in the United States. Third, rights must be registered and enforced in El Salvador, under national legislation. For example, your U.S. trademark and patent registrations will not protect you in El Salvador. There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in specific countries depends, basically, on the national laws of that country. However, most countries do offer copyright protection to foreign works in accordance with international agreements.
Registration of patents and trademarks is on a first-in-time, first-in-right basis, so you should consider applying for trademark and patent protection even before selling your products or services in the Salvadoran market. It is vital that companies understand that intellectual property is primarily a private right and that the U.S. government generally cannot enforce rights for private individuals in El Salvador. It is the responsibility of the rights holders to register, protect, and enforce their rights where relevant, retain their own counsel and advisors. Companies may wish to seek advice from local attorneys or IP consultants who are experts in Salvadoran law. Although a firm or individual may apply for a patent or trademark directly, most foreign firms hire local law firms specializing in intellectual property. The U.S. Commercial Service’s Business Service Provider program has a partial list of local lawyers
at: http://www.export.gov/elsalvador/businessserviceproviders/index.asp?bsp_cat=80120000
While the U.S. Government stands ready to assist, there is little we can do if the rights holders have not taken these fundamental steps necessary to securing and enforcing their IP in a timely fashion. Moreover, in many countries, rights holders who delay enforcing their rights on a mistaken belief that the U.S. Government can provide a political resolution to a legal problem may find that their rights have been eroded or abrogated due to legal doctrines such as statutes of limitations, laches, estoppel, or unreasonable delay in prosecuting a law suit. In no instance should U.S. Government advice be a substitute for the obligation of a rights holder to promptly pursue its case.
It is always advisable to conduct due diligence on potential partners. Negotiate with a full understanding of the position of your partner and give your partner clear incentives to honor the contract. Consider carefully, however, whether to permit your partner to register your IP rights on your behalf. Doing so may create a risk that your partner will list itself as the IP owner and fail to transfer the rights should the partnership end. Keep an eye on your cost structure and reduce the margins (and the incentive) of would-be bad actors. Projects and sales in El Salvador require constant attention. Work with legal counsel familiar with Salvadoran laws to create a solid contract that includes non-compete clauses, and confidentiality/non-disclosure provisions.
An overview of El Salvador’s IPR regime can be found on the WIPO website at:
http://www.wipo.int/wipolex/en/profile.jsp?code=SV
It is also recommended that small and medium-sized companies understand the importance of working together with trade associations and organizations to support efforts to protect IP and stop counterfeiting. There are a number of these organizations, both El Salvador and U.S.-based. These include:
- U.S. Chamber of Commerce and local American Chambers of Commerce
- Salvadoran Association of Intellectual Property (ASPI)
- National Association of Manufacturers (NAM)
- International Intellectual Property Alliance (IIPA)
- International Trademark Association (INTA)
- Coalition Against Counterfeiting and Piracy
- International Anti-Counterfeiting Coalition (IACC)
- Pharmaceutical Research and Manufacturers of America (PhRMA)
- Pharmaceutical Security Institute (PSI)
- Biotechnology Industry Organization (BIO)
- Motion Picture Association of America (MPAA)
- Business Software Alliance (BSA)
- Recording Industry Association of America (RIAA)
IP Resources
A wealth of information on protecting IP is freely available to U.S. rights holders. Some excellent resources for companies regarding intellectual property include the following:- For information about patent, trademark, or copyright issues -- including enforcement issues in the US and other countries -- call the STOP! Hotline: +1-866-999-HALT or visit www.STOPfakes.gov.
- For more information about registering trademarks and patents (both in the U.S. as well as in foreign countries), contact the U.S. Patent and Trademark Office (USPTO) at: +1-800-786-9199, or visit http://www.uspto.gov/.
- For more information about registering for copyright protection in the United States, contact the U.S. Copyright Office at: +1-202-707-5959, or visit http://www.copyright.gov/.
- For more information about how to evaluate, protect, and enforce intellectual property rights and how these rights may be important for businesses, please visit the “Resources” section of the STOPfakes website at http://www.stopfakes.gov/resources.
- For information on obtaining and enforcing intellectual property rights and market-specific IP Toolkits visit: http://www.stopfakes.gov/business-tools/country-ipr-toolkits The toolkits contain detailed information on protecting and enforcing IP in specific markets and contain contact information for local IPR offices abroad and U.S. Government officials available to assist SMEs.
- An English-language overview for El Salvador’s IPR regime can be found on the WIPO website https://wipolex.wipo.int/en/legislation/profile/SV
IP Attaché Contact for El Salvador
Cynthia Henderson
Intellectual Property Rights Attaché for Mexico, Central America and the Caribbean
U.S. Trade Center
Liverpool No. 31 Col. Juarez
C.P. 06600 Mexico City
Telephone: +52 55 5080 2189
E-mail: cynthia.henderson@trade.gov
Claudia Rojas
Senior Legal Specialist for Intellectual Property
U.S. Trade Center
Liverpool No. 31 Col. Juarez
C.P. 06600 Mexico City
Telephone: +52 55 5080 2000, ext. 5222
E-mail: Claudia.rojas@trade.gov
For more information, contact ITA’s Office of Intellectual Property Rights Director, Stevan Mitchell at Stevan.Mitchell@trade.gov. Prepared by our U.S. Embassies abroad. With its network of 108 offices across the United States and in more than 75 countries, the U.S. Commercial Service of the U.S. Department of Commerce utilizes its global presence and international marketing expertise to help U.S. companies sell their products and services worldwide. Locate the U.S. Commercial Service trade specialist in the U.S. nearest you by visiting http://export.gov/usoffices.