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20/06/2017
In Terms of Intellectual Property, Prevention is as Important as Protection
Por:  Manuel Antonio Rodríguez

Intellectual Property advisors usually tend to emphasize as their paramount function the provision of the greatest possible protection to works, products, productions, distinctive signs, technological solutions, contractual aspects, free competition - just to mention a few of their areas - either by obtaining records, statements, compliance with formalities and drawing up of plans that prevent or reduce the negative incidences of piracy, counterfeiting, plagiarism or unauthorized and illegal use of that for which advice was sought.

Sometimes, perhaps because of an excessive desire to render the best possible service (in terms of immediacy, quality, efficiency and understanding of what the client requires), it is forgotten that a calm analysis is crucial to include an essential element: that the asset to be protected does not infringe the rights of a third party, whether directly or indirectly.

Obviously, this is beyond the analysis of the usual legal steps of precaution that are informed to the client, or the data that results from revealing the state of the art for certain applications, or the legal impediments, or similar situations. For instance, the professionalism and talent necessary to develop an industrial design, does not involve only to fulfill the requirements regarding distinctiveness or novelty, or the considerations on the freedom of the author in terms of the elements that condition such freedom, or to avoid legal prohibitions. This does not seem quite enough, because it is desirable that the legal consultant can accompany the technical team in the development of the design, so that once completed, it may be almost certain that it can be registered and subject to exclusive protection, and also that it does not violate the rights of third parties.

There are different ways to achieve this anticipated goal. By way of illustration, if the technical team is informed in advance of the facts, circumstances or details that should always be considered, as structured by Professor María Auxiliadora Vega   in a consultation table containing 37 specific points to consider,  or in a table with 23 aspects on the general guidelines for ornamental design , thus it is obvious that the possibility of success increase.

On the other hand, this is not only applicable to big corporations or businesses. A person requesting a user license agreement or an assignment of rights, for instance, usually settles for the inclusion of a provision stating that \"... the grantor/assignor is the owner of the rights and assumes full responsibility in the event of a claim or action…” instead of making a review of the origin of the ownership, not intending to know its legitimacy, but to verify if there may be a conflict between, for example, the only two partners in the grantor/assignor, which might avoid serious problems. 

Hence the enormous importance of analyzing as much legal details and facts as possible beyond the routine review, because only this way will the client rest assured not face legal contingencies that cause damages, delays or impossibility, for example, in the execution of a project, the commercial launch of a product or the provision of a service, the transfer of ownership or authorizations of use, among others.

Protecting an intellectual asset is not only about obtaining a record or meeting the criteria for presuming such ownership, but rather about trying to guarantee the absence of conflicts, which can potentially result from not having analyzed or considered all the hypotheses imposed by the commercial dynamics or cultural aspects related to Intellectual Property.

Currently, what quality of advisory services do you provide or receive? 

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