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Newsletter Legal Developments in Latin America October - November 2010 Compiled and edited by the Latin American and

Caribbean Law Committee

ARGENTINA GENERAL BRAZIL TRADEMARK THE


PROTECTION IN SOCIAL NETWORKS APPROVAL OF THE RESOLUTION N

1/2010

ISSUED BY THE

GENERAL INSPECTION

OF

CORPORATIONS SWORN

STATEMENTS

MNVO

REGULATION IN BRAZIL

BRAZIL: A

HYBRID LEGAL SYSTEM

NETHERLANDS ANTILLES DISOLUTION URUGUAY NEW


RULES REGARDING TO ADJUST OF THE

NETHERLANDS ANTILLES

URUGUAYAN FREE TRADE ZONES


OF FORMER

EXTENSION

BYLAWS

COOPERATIVES

TO THE

NEW SYSTEM (ACT 18.705)

CONTRIBUTING

FIRMS:

ALMEIDA J.

ADVOGADOS C ALAGUAS

(WWW.ALMEIDALAW.COM.BR); ( MCALAGUAS @ GMAIL . COM );

BRONS &

&

SALAS H UGUES

( WWW . BRONS . COM . AR);

M ARK

H UGHES

(WWW.HUGHES.COM.UY); GLAUCE SANTESSO COELHO (GLAUCESANTESSO@HOTMAIL.COM)

Argentina

among countries like USA, India, France and Germany, spending around Five hours per month at social networking. This stunning position can also lead to a serious point of concern since it has also implications. Along with the great accesses comes the exponential probability of online intellectual property infringement since sometimes uses infringe trademark rights. Fake trademark profiles and negative posts can undermine the credibility of long firmed companies causing certain profit losses due to the impact of bad advertisement. As in most countries, the Brazilian Trademark Legislation assures the exclusive right to use a registered trademark in its national territory. Such right is also applied to social networks, made widely popular due to the Web 2.0, which assures its exclusive use by its owner in the virtual environment. After noticing the existence of a fake profile or post containing denigrating content to a trademark on this virtual environment, the owner has several tools at hand, each one with both positive and negative aspects which should be taken into consideration before the decision making. Means of Action From the most distinct forms of approaching the presented problem, there isnt a single most indicated action since each situation deserves individual treatment and solution. In this scenario, knowing what they are and their main consequences are crucial to determine the best action to take. Contacting the ISP

GENERAL RESOLUTION N 1/2010 ISSUED BY THE GENERAL INSPECTION OF CORPORATIONS SWORN STATEMENTS

The General Inspection of Corporations (GIC) has recently issued General Resolution No. 1/2010 (the Resolution). According to the Resolution, all foreign companies registered with the GIC are required to file a sworn statement through their legal representatives. Such sworn statement has to include the following data: actual registered office of the company, a list of its legal representatives, and registration data related to the company. Furthermore, foreign companies registered as branches must provide evidence of the filing of their balance sheets with the GIC. According to General Resolution No. 5/2010, published in the Official Gazette on December 1, 2010, fulfillment of the obligation to file this sworn statement was postponed until April 29, 2011.

Contributors: Florencia Askenasy, Brons & Salas, Buenos Aires. For further information, please send an e-mail to faskenasy@brons.com.ar

Brazil

TRADEMARK

PROTECTION IN SOCIAL NETWORKS

Facebook, Twitter, MySpace, Orkut. Social networks have been bombed with all sorts of company profiles as means of promoting products and services through direct contact with consumers at extremely low cost. It is estimated that 70% of the companies established in Brazil either monitor or make use of social networking. Brazil is one of the ten countries with the biggest social networks traffic, and holds an even bigger position if proportional to the internet use. Studies show that 87% of Brazilian internet users have some sort of social network activity,
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The direct contact with the website host responsible for its content is the first step usually taken for those who feel harmed by the upload of unauthorized online content. Large internet portals often offer sections exclusively developed to report misuse of the services provided, removing them with fair agility simply by supplying the proper information and following their internal proceedings. The proceedings can be quite simply and efficient, usually consisting in describing the trademark violation, making proof of ownership and requesting the removal of the harmful content or fake profile.

Cease and Desist Letters Other commonly used method is the issuance of Notifications or Cease and Desist Letters to the author of the trademark violation. Although usually sent through regular mail with return receipt or notary offices, they can also be made electronically through a simple email directed to the infringer. Despite being most commonly used in case of trademark and copyright infringement worldwide, the cease and desist method can become a little harder in the virtual environment. The difficulty in obtaining the name and address of the infringer based only on the profile and internet data can demand action towards the internet service provider (ISP). In that case, the ISP can always refuse to supply the requested information and shall only be forced to give it through a court order. Court Orders As often preferred amongst Brazilian lawyers, this method consists in filing lawsuits in local Court of Law. Lawsuits can be filed either with State Court or Small Claim Courts seeking to obtain an order against the ISPs to reach the desired information and can also be accompanied by damage claims. This measure has serious implications and should always be well prepared and preceded by certain precautions in order to preserve the evidences which will be used to support the desired conviction. Amongst the most commonly used court measures, the Injunctions or Provisional Measures can be quite useful when getting the required information in the ISP or still, removing the harmful content when refused, in a relatively short period of time. On the downside, we highlight the world famous Brazilian justice slowness, sometimes taking more than a year to get a first instance conviction, and also the lack of training of the judges, who often ignore how technologies work and very often base their decisions in equally unprepared expert's opinions. Protecting Evidence Furthermore, in order to allow the filing of the judicial measures, preserving the evidences used to prove infringement is essential. The most orthodox method used is to have it registered at the Notary's Office known as Ata Notarial, where the registry certifies the content existence before an eventual removal from the
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website. Despite not having the authoritative disposition of the Notary Registry, the evidence preservation can also be made by other methods. Any legal mean of proof can be served as an indication to the judge when molding his conviction towards granting the injunction, such as print screens and email delivery receipts sent to website managers (webmasters) and to the infringers themselves. Keeping Up With New Technologies Another measure than can be taken with relatively ease is the active approach of trademark owners by creating official company profiles in every new digital Medias created. Acting in such manner could also avoid the occurrence of name squatting, when third parties register trademark profiles acting as trademark owners or aiming to negotiate later with the real trademark owners the profile sale. Besides demanding considerable effort to keep up with the social networks uncontrolled growth, this method can be of little efficiency: profile names registration usually allow variations that go beyond the simple spelling of the trademark name and also do not protect legit uses of trademarks registered with the same name, but in different categories. Major Consequences As pinpointed before, it is of great importance to cautiously study each and every situation and their possible implications before taking any action. Oftentimes the simple use of a trademark on a social network profile can even be used in favor of the trademark owner, as it usually happens when created and conducted by a trademark fan. In those cases, co-ownership or moderation are easily given to the real trademark owner upon mere request. Furthermore, taking into consideration the reach of the negative publicity in the collaborative environment of social networks, approaching the trademark infringer should always be in a reserved manner, since damages resulting from the bad advertisement can outrun the benefits of removing the infringing content. If the chosen alternative is a court measure, another point of concern needs to be touched upon by the trademark owner: in the majority of cases, the ISP managers are not responsible

for the infringing content uploaded or posted, since made by third parties without any sort of previous moderation or control. At last, it is always relevant to highlight the importance of knowing the tools made available in the social network website against trademark infringement. Using cautiously and reasonably such tools can result in quick and inexpensive infringing content removal.

may be deemed renderers of telecommunication services and, as a direct consequence of such qualification, they would be submitted to every provision and to stiffer control of governmental bodies, both in exchange of wider independence and options to develop their business. With the adoption of this structure, ANATEL intends to provide a scenario capable to stimulate the decrease of the rates charged in consideration for the rendering of mobile services. According to researches developed by the European consulting firm Bernstein Research, Brazil has the second highest mobile services rate in the world, with an average rate around US$0,24 per minute. Additionally, besides reducing the mobile services rates, ANATEL expects to watch a considerable growth in the accessibility to the mobile services market, given that soccer clubs, large banks and retail companies around the country are likely to adhere to this sort of commerce and, as a tendency of what has been observed elsewhere worldwide, such companies have already started to plan their entrance as pioneers of the exploitation of the MVNO activities in Brazil.

Contributors: Mrcio Mello Chaves, Almeida Corporate Law, Sao Paulo. For further information, please send an e-mail to mmchaves@almeidalaw.com.br

THE

APPROVAL OF THE

MNVO

REGULATION IN

BRAZIL

The Director Board of the National Telecommunication Agency (Agncia Nacional de Telecomunicaes ANATEL) approved on November 18, 2010 the regulation for the operation of Mobile Virtual Network Operators (MVNO) in Brazil. Even though the final wording will only be known with its publication on the Official Gazette of the Federal Executive, expected until the end of 2010, the Agency has already expressed that the regulation might follow the basic structure described in the Public Consultation n. 50, to which every player of the market was able to make contributions from the December 22, 2009 until March 29, 2010. In this sense, the patterns to explore the MVNO activity in Brazil probably will have the same features as those presented during the Public Consultation, which are the following: (i) Accredited Companies; and (ii) Authorized Companies. In general figures, the Accredited Companies shall not be deemed as renderers of telecommunication services and such companies would have a very limited scope in the mobile phone services value chain. These companies could be compared to mere sales representatives of the traditional mobile phone services operators. On the other hand, the Authorized Companies
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Contributors: Leonardo A. F. Palhares and Caio Iadocico de Faria Lima, Almeida Corporate Law, Sao Paulo. For further information, please send an e-mail to lpalhares@almeidalaw.com.br or cilima@almeidalaw.com.br

BRAZIL:

A HYBRID LEGAL SYSTEM

From a legal perspective, the Brazilian Legal System does not fit in a pure civil law system. Even though Brazil has a body of rules enacted by the Legislative that can be found in codes and in a supplementary legislation, since 2004, when the binding summary was passed, Brazil has stepped into the common law arena. Currently, Brazil has a legal system that can be defined as a hybrid legal system.

Legal systems are generally divided into civilianand common law jurisdiction based on whether or not they use legislation or court-made law as the primary source of law. Underneath this categorization, countries that do not use case law are considered civil law countries. Although, before 2004 Brazilian judicial decisions and jurisprudence were mostly used as an element of persuasion, they were not law; for this reason until 2004 Brazil was considered a civil law country. Brazilian legal system radically changed in 2004 when the Constitutional Amendment n 45/2004 (CA 45/2004) was passed. With the purpose of giving the Brazilian judiciary greater effectiveness, the CA 45/2004 created, through the new Constitutional Article 103-A, the binding summary. According to the Article 103-A of the Brazilian Constitution, the Supreme Federal Court shall have the power to approve summaries which shall have binding effect over the other bodies of the Judiciary Power and over the direct and indirect public administration, at federal, state and municipal levels. Formerly, the Supreme Court could approve summaries, which could be used by Judges to justify their sentences or by attorneys to justify their petition, but had no binding effect. However, since the Article 103-A was inserted in the Brazilian Constitution, the Brazilian legal system will never be the same. The summaries from the Supreme Court are now mandatory and have a binding effect over all the Brazilian Courts, which means that the Supreme Court decisions are now case law. Any administrative act or judicial decision which goes against an applicable summary or applies it in an undue manner shall be nullified by the Supreme Court. Brazil cannot be described as a civil law country anymore. Even though the codes and supplementary legislation still play an essential role in the Brazilian legal system, the Supreme Court case laws are now source of law. For this reason, Brazil has moved to a hybrid legal system, which is a tendency in modern societies. According to the Professor of Law at University of Warwick, John McEldowney: The term hybridization is used to refer to this
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phenomenon whereby there is convergence between different legal systems. This does not necessarily alter national sovereignty or substitute one system over another. It cannot be measured by success or failure of one legal system over another. It is a common sharing that is best understood through an understanding of the constitutional and legal culture of different countries. Brazil has passed through this hybridization process. Brazil has experienced the convergence of civil and common law systems. After 2004, codes and the Supreme Court case law are equally binding law on lower courts. Brazil is not a civil law country anymore because with the CA 45/2004 in Brazil, precedents of the Supreme Court are not only persuasive to lower Courts, but they are now mandatory to the lower Courts. Precedents from the Supreme Court must be obeyed by all other bodies of the Judiciary, they are now clearly law. The convergence of civil and common law systems has made Brazil one of the hybrid legal systems in the world.

Contributors: Glauce Santesso Coelho, Brazilian Business Attorney and LLM at University of Denver. For further information, please send an email to glaucesantesso@hotmail.com

Netherlands Antilles

DISOLUTION

OF THE

NETHERLANDS ANTILLES

Following a series of local referenda conducted between 2000 and 2005, the Netherlands Antilles was officially dissolved on October 10, 2010. Two constituent islands, Sint Maarten and Curaao, became independent countries within the Kingdom of the Netherlands, thus achieving a legal status similar to that of Aruba, which had seceded from the Netherlands Antilles in 1986. Conversely, the remaining islands of Bonaire, Sint Eustatius, and Saba (or BES islands) elected to become integrated into the Nether-

lands proper as public bodies, thus adopting a form of governance much in line with the over 400 ordinary municipalities that subdivide the various provinces comprising the Dutch mainland (the province of Noord-Holland has formally expressed interest in incorporating the trio of Caribbean islands). With regard to the European Union, however, the BES islands will retain their status as overseas territories for at least five more years, at which point the government of the Kingdom of the Netherlands is scheduled to reevaluate the islands relationship with the EU. Consequently, Sint Maarten and Curaao are now regarded as successor countries to the Netherlands Antilles, and each jurisdiction has promulgated a new constitution reflecting this change. By the same token, the Netherlands is also a successor country to the Netherlands Antilles by virtue of its absorption of the BES islands. As such, the constitution of the Netherlands was introduced as the governing charter of the BES islands upon the dissolution of the Netherlands Antilles. Nevertheless, statutes that had been in force in the Netherlands Antilles continue to be valid in the successor countries, although Sint Maarten, Curaao, and the Netherlands have the right to repeal or amend prior legislation as deemed appropriate. The local court systems in Sint Maarten and Curaao, in which judges and notaries were appointed by the Queen of the Kingdom of the Netherlands, remain substantially intact. For purposes of handling appeals under the new regime, the Joint Court of Justice of the Netherlands Antilles and Aruba has now been converted into the Joint Court of Justice of Aruba, Curaao, Sint Maarten and of Bonaire, Sint Eustatius and Saba. The Supreme Court of the Netherlands, which sits in The Hague, will continue to function as the tribunal of highest instance for controversies arising from within the jurisdictions of the former Netherlands Antilles. In the realm of economic matters, Sint Maarten and Curaao will be intimately linked. The Central Bank of Sint Maarten and Curaao succeeds the Central Bank of the Netherlands Antilles and will carry on the responsibilities of issuing currency and regulating financial institutions. Both
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countries are to share a new common currency, the Caribbean guilder, which replaces the Netherlands Antilles guilder in 2012. While the central bank of the Netherlands, The Dutch Bank, will take over as the official financial regulator of the BES islands, the Central Bank of Sint Maarten and Curaao will likely wield significant regulatory power because many financial institutions in the BES islands are principally established in Curaao. Pursuant to decisions made locally by governmental commissions in 2008, each of the BES islands will begin using the United States dollar as its official currency at the start of 2011.

Contributor: Mark J. Calaguas, Esq., Chicago, Illinois. For further information, please send an email to mcalaguas@gmail.com

NEW

Uruguay

RULES REGARDING

URUGUAYAN FREE TRADE ZONES

The Executive Power, on November 25, 2010, passed a Decree (Decree), related to the subject matter referred above. The new measures the Government has taken derived from the assumption that Free Trade Zones (FTZs) were not complying with the goals that originally fostered the creation of this special legal regime. The objective of this initiative is to prevent cases similar to the ones, allegedly, involved Argentinean companies that ended up breaching their responsibilities with the Argentinean IRS by taking advantage of the Uruguayan system in this regard. In fact, these companies did not have any activity within Uruguayan FTZs although they were being beneficiated by the special tax regime, which was not the spirit of the system. According to the Uruguayan Government, FTZs should foster employment and development in the Uruguay territory. (i) Pursuant to the Decree, the Government through the FTZs Agency (Agency) needs to obtain complete information from the prospec-

tive FTZ user (User) in order to make proper decisions. For this reason, any prospective User needs to submit a Business Plan discussing its projects and goals in FTZ. (ii) FTZ Users must give notice to the Agency, under their responsibility and within 30 days counted from the decision, of any changes in the Board of Directors. It is also necessary to inform whether the director is a Uruguayan or a foreign citizen, and if he receives any compensation for his job, among others. (iii) The Agency shall authorize any contracts with Direct or Indirect Users and automatic extensions are, as a rule, not allowed anymore. Extensions can be granted only in certain cases. Direct Users will be authorized by the Agency, in principle, just for a 10-year term and Indirect Users for a 2-year period, counted, in both cases, from the authorization day. Extensions can be granted based on reasonable grounds. (iv) Users must demonstrate the following three characteristics: (a) They create jobs either direct or indirect in FTZ; (b) They actually have an operation within FTZ by using its infrastructure; (c) They have its registered address in FTZ. (v) Even though the main idea of a FTZ is that goods manufactured, and services rendered in FTZ should be exported, the Decree makes clear that these goods and services can be sold to other users or to the licensee within FTZ as well as to their employees, inasmuch they can be considered as final customers. (vi) Finally, the Decree pointed out that the 75%-Uruguayan-citizen-personnel of FTZ Users (set forth by the Uruguayan Law) can be composed by paid or honorary directors.

EXTENSION

TO ADJUST

TIVES TO THE

NEW

BYLAWS OF FORMER COOPERASYSTEM (ACT 18.705)

In 2008 Uruguayan Congress passed a comprehensive Act related to Cooperatives which was a landmark in the Uruguayan system. However, due to the lack of regulation this type of companies showed for many years, the adjustment of former cooperatives to a new and more complex system needed to be gradual. (i) According to Section 221 of the act 18.407, cooperatives formed before the new act, had 2 years to make the corresponding adjustments, mainly in their bylaws, to comply with the new system. Provided these adjustments were not made, no further documents connected with the cooperative can be registered before the Uruguayan Registry. (ii) As the deadline was approaching, businessmen and other market players have informed the Government that many cooperatives, which need to adjust their bylaws, have not finished or even started, for different reasons, the proceeding to have their corporate structure modified. (iii) This circumstance was understood by the Government that promoted the act 18.705, dated November 10, 2010, that extends the legal term until June 30, 2011, along with the consequence of disregarding the legal requirements.

Contributors: Hctor Ferreira, Hughes & Hughes, Montevideo. For further information, please send an e-mail to hferreira@hughes.com.uy

Contributors: Hctor Ferreira, Hughes & Hughes, Montevideo. For further information, please send an e-mail to hferreira@hughes.com.uy

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