Intellectual property

DUAL SYSTEM

A dual system of protection

Industrial property is governed by Law No. 19,039 and covers trademarks, invention patents, utility models, industrial drawings and designs, layout designs or topographies of integrated circuits, geographical indications, appellations of origin and trade secrets. The authority is the National Institute of Industrial Property (INAPI), created by Law No. 20,254.

Copyright is governed by Law No. 17,336 and protects works of the intellect in the literary, artistic and scientific domains, including software, together with the related rights of artists, performers, phonogram producers and broadcasting organizations. The authority is the Intellectual Rights Department, under the National Cultural Heritage Service (Art. 90, Law No. 17,336).

The distinction matters in practice. Most industrial property rights require a title or registration before INAPI; trade secrets are not registered and are protected while kept confidential; and copyright protects the work from its creation, without formality, with a registry that serves evidentiary rather than constitutive purposes.

Above both regimes sits constitutional recognition. Article 19 No. 25 of the Constitution protects both copyright over scientific, literary, artistic or intellectual creations and ownership of inventions, trademarks, patents and other forms of industrial property, for the term the law establishes.

Access for foreign owners The system does not discriminate by nationality. A foreign applicant must appoint an agent domiciled in Chile, but since accession to the Trademark Law Treaty (TLT) a simple power of attorney suffices, without legalization or consular authentication. The rights are transferable, licensable and chargeable, and their assignment is formalized by private instrument in Spanish, without protocolization or consular authentication.

TRADEMARKS

Trademarks

A trademark is a representable sign that distinguishes one person’s products, services or establishments from another’s, and includes words, figurative elements, color combinations and advertising slogans associated with a registered mark (Art. 19, Law No. 19,039). A sign without inherent distinctiveness may be registered if it acquired distinctiveness through sustained use (acquired distinctiveness or “secondary meaning”). Law No. 21,355 extended the concept to non-traditional signs; today three-dimensional, sound, olfactory, position, pattern, motion and holographic marks can be registered, provided they admit clear and precise representation.

Non-registrable signs include, among others, those generic or descriptive of the product or service, those misleading as to origin or quality, those contrary to morals and public order, official flags and emblems, and those graphically or phonetically identical or similar to a mark already registered or applied for covering identical or related products, such that confusion may arise. A well-known foreign mark enjoys reinforced protection and its owner may oppose similar signs and even seek the annulment of an already granted registration.

Chile applies the Nice Classification; the mark protects only the products or services in the covered classes. Since July 4, 2022, Chile is part of the Madrid Protocol, which allows foreign owners to designate Chile in an international application before WIPO.

Registration lasts ten years from its recording and is renewable for equal ten-year periods indefinitely. Renewal may be requested during the six months before expiry and up to six months after, with payment of fees and surcharges. Once that grace period lapses, the mark is lost and must be applied for anew. The owner must use “Marca Registrada,” “M.R.” or “®”; omitting the marking does not invalidate the mark, but bars criminal infringement actions and reduces protection to the civil route.

TRADEMARKS

The use requirement introduced by Law No. 21,355

For decades Chile was the only country in Latin America where use was not a requirement to register or maintain a mark. Law No. 21,355 introduced revocation for non-use (Arts. 27 bis A and 27 bis B, Law No. 19,039). Total or partial revocation applies if, five years after grant, the mark has not been the subject of real and effective use in the national territory by its owner or a third party with its consent, or if use was suspended uninterruptedly for the same period. It does not proceed ex officio, but at the request of anyone with a legitimate interest, and the burden of proving use falls on the owner.

The change reorders portfolio strategy. Defensive registration and letting the mark sleep is no longer enough; you must document real use (invoices, advertising, points of sale) and, for licenses, register them and preserve evidence of the licensee’s use.

5 years 10 years ® without real and effective use since of registration validity, renewable without marking there are no grant enable revocation indefinitely criminal actions, only civil protection

PAT E N T S

Invention patents

An invention is any solution to a technical problem giving rise to an industrial activity, whether a product or a process; the patent is the inventor’s exclusive right to prevent its commercial exploitation by third parties for a limited term (Title III, Law No. 19,039). Inventions in all fields of technology are patentable if they meet three requirements: novelty, i.e. not forming part of the state of the art; inventive step, i.e. not obvious to a person skilled in the art; and industrial applicability.

Protection lasts twenty years from the filing of the application, is not renewable and is subject to payment of maintenance fees. The territoriality principle applies; patenting in your home country does not protect you in Chile by that fact alone.

The law provides a grace period. Disclosures made within the twelve months before the application do not affect novelty or inventive step if they come from the applicant or inventor themselves, or from an abuse against them. The law also provides supplementary protection for unjustified administrative delays in prosecution, for a term equal to the proven delay (Paragraph 2 of Title III, Arts. 53 Bis 1 et seq.). For criminal actions, the object must bear “Patente de Invención” or “P.I.” followed by the number, except process patents, which are exempt; omission limits remedies to the civil action.

Chile has been a party to the Patent Cooperation Treaty (PCT) since June 2009. The PCT does not grant international patents; it unifies filing, and the applicant has thirty months from the priority date to enter the national phase in Chile. INAPI was designated an International Searching and International Preliminary Examining Authority under the PCT.

Employee inventions When the invention arises from an employment or services relationship, ownership is defined by the nature of the relationship and the use of the employer’s resources (Title VI, Law No. 19,039). If the contract’s purpose is inventive activity, the right to seek registration and exploit the invention belongs to the employer, unless agreed otherwise. If the worker was not hired to invent, the right is theirs, but if they used the company’s knowledge or means, ownership passes to the employer, who must compensate them in an amount agreed between the parties.

OTHER FIGURES

Models, designs, secrets and indications

Utility models The utility model protects instruments, apparatus, tools, devices and objects, or parts of them, whose configuration gives them a utility or technical effect previously nonexistent for their function (Title IV, Law No. 19,039). It is patentable if it meets novelty and industrial applicability. Protection lasts ten years, is not renewable and runs from filing. The marking is “Modelo de Utilidad” or “MU” followed by the number, with the same consequence as patents if omitted.

Trade secrets and know-how Law No. 19,039 protects trade secrets, defined as any knowledge about products or industrial processes whose confidentiality gives its holder a competitive advantage (Title VIII, Arts. 86 et seq.). It sanctions their unlawful acquisition, unauthorized disclosure or exploitation, and breach of confidentiality by anyone with legitimate access, when acting with intent to gain undue advantage or cause harm. Law No. 21,355 strengthened this regime. Unlike a patent, a secret requires no registration and has no term. It lasts while kept confidential, so its protection depends entirely on the holder’s measures; a secret leaked for lack of control ceases to be protected. Its legal value is built with confidentiality agreements, restricted-access policies, contractual clauses and access traceability. The law also protects undisclosed information submitted to the Public Health Institute or the Agriculture and Livestock Service on the safety and efficacy of pharmaceutical or agro-industrial products with a new chemical entity. That information is confidential and cannot be used to grant sanitary registrations to third parties for five years for pharmaceuticals and ten years for agro-chemicals (Arts. 89 et seq., Law No. 19,039).

Geographical indications and appellations of origin A geographical indication identifies a product as originating in a country, region or locality when a given quality, reputation or other characteristic is attributable to its geographical origin; the appellation of origin adds that those characteristics stem from natural or human factors specific to the area (Title IX, Law No. 19,039). INAPI administers their recognition and registration at the request of anyone representing a significant group of the area’s producers or the territory’s authorities.

TERMS AND FIGURES

Summary table Marking for

Figure Protected subject matter Term Renewal criminal action

Trademark Distinctive sign for products, 10 years from recording in the registry Indefinite, in «M.R.» o «®» services or establishments, equal 10-year including non-traditional marks periods

Invention patent New technical solution, with 20 years from filing Not renewable «P.I.» + inventive step and industrial número applicability

Utility model Configuration of an object pro‐ 10 years, non-renewable, from the filing Not renewable «MU» + viding technical utility of the application or from first commernúmero cial exploitation anywhere in the world, as applicable

Industrial drawing or New shape or ornamentation of Up to 15 years from filing Not renewable «DI» + design a product número

Layout design or Three-dimensional arrangement 10 years from filing or first exploitation Not renewable Per law topography of an integrated circuit

PROCEDURE

Procedure before INAPI and the TDPI

Registration begins with the application before INAPI, which verifies formal requirements and orders publication of an extract in the Official Gazette. From publication runs the third-party opposition period: thirty days for trademarks and forty-five for patents, utility models, designs, topographies and geographical indications; for the latter figures an expert is also appointed to prepare a report. The INAPI Director decides at first instance, and the decision is appealed before the Industrial Property Court (TDPI) within fifteen days of notification, whether or not there was opposition. The TDPI is a special collegiate court, and its rulings admit cassation before the Supreme Court for errors of law affecting the operative part.

The law distinguishes two challenge actions: Both are heard by INAPI with appeal to the TDPI. For trademarks, annulment must be brought within five years of registration, unless the registration was obtained in bad faith, in which case it never lapses (Art. 27, Law No. 19,039).

Revocation. Introduced forcefully by Law No. 21,355 for trademarks, it applies for lack of real and effective use. Both actions are heard by INAPI with appeal to the TDPI.

Processing time varies. An unopposed trademark is resolved in about six months and an opposed one in around a year; an unopposed patent takes on the order of three years due to substantive expert examination. These are reference figures, depending on INAPI’s workload and case complexity.

COPYRIGHT

Copyright Protected works and birth of the right

Law No. 17,336 protects works of the intellect in the literary, artistic and scientific domains, whatever their form of expression (Art. 1). The Art. 3 catalog is broad and illustrative, including books, musical, dramatic, audiovisual and photographic works, works of art, architectural projects and, expressly, computer programs, databases and compilations. Protection arises with creation, without registration or formality. The law distinguishes moral from economic rights. The moral right includes claiming authorship of the work and opposing distortions that harm it; it is inalienable and nontransferable (Arts. 14 to 16). The economic right entitles the owner to use the work and authorize its use by third parties, and that one is transferable (Arts. 17 et seq.).

Term of protection Protection extends for the author’s entire life and seventy years from their death (Art. 10). If ownership belongs to a legal entity, it lasts seventy years from first publication. These are among the longest terms in comparative law, in line with Chile’s free trade agreements.

The software regime A computer program is protected as a work from its creation, like any other under Law No. 17,336. Article 8 contains special ownership rules, always subject to written agreement to the contrary. For programs produced by employees in the course of their duties, the copyright owner is the employing company; for those produced on a third party’s commission to be marketed at its own account and risk, the rights are deemed assigned to that third party. For a technology company, the contract governs software better than registration, and it should regulate economic ownership, use, modification, sublicensing, code exploitation and third-party components.

Registration, transfer and enforcement Registering the work with the Intellectual Rights Department is not constitutive, but documents the creation date and authorship, useful for proving ownership (Arts. 72 et seq.). Transfer of economic rights, in whole or in part, must be made by public deed or a private instrument certified before a notary, and recorded in the registry within the legal period. Law No. 17,336 provides civil and criminal actions against unauthorized use. Law No. 20,435 of 2010 expanded the catalog of offenses and introduced a liability-limitation regime for internet service providers, with content-removal decisions entrusted to the ordinary courts (Arts. 85 L et seq.).

.CL DOMAINS

.CL domain names

Chile’s ccTLD is .CL, administered independently by NIC Chile (University of Chile), under the Regulations for the operation of the .CL Domain Name Registry and its resolutions. Any person, Chilean or foreign, can register .CL domains online through www.nic.cl; the registration is deemed filed upon confirmation of the annual fee payment and the domain is published on a list for thirty days. Domains renew indefinitely while the conditions are met.

Anyone who believes their rights are affected may seek revocation under the .CL Domain Name Dispute Resolution Policy. Within the thirty-day publication period they may invoke a preferential interest; after that period, they must show the registration was abusive, cumulatively proving that the domain is identical or confusingly similar to a name, mark or expression over which they have prior rights, that the holder lacks rights or legitimate interests, and that the domain was registered or used in bad faith. Disputes are resolved by online arbitration.

ENFORCEMENT

Enforcement, judicial protection and treaties

In copyright, Law No. 17,336 criminally sanctions infringements and enables civil damages actions. When the violation stems from an arbitrary or unlawful act affecting a constitutional guarantee, the constitutional protection action lies before the Court of Appeals within the Art. 20 constitutional deadline.

At the border, the National Customs Service is empowered to suspend the clearance of goods presumed to infringe industrial property rights, under Law No. 19,912, detaining allegedly counterfeit products while the dispute is resolved.