New Intellectual Property Law in El Salvador

The new Intellectual Property Law, which was approved by the Legislative Assembly on August 8^th , 2024, and in force since last February 17^th, includes many novel changes endorsed by various sectors of the economy to protect and respect Intellectual Property rights. The Law is expected to generate greater foreign investment, foster innovation, and promote economic growth.

The newly created Salvadoran Institute of Intellectual Property will be responsible for efficiently managing all types of procedures related to copyrights and related rights, trademarks of all kinds (including flavor, relief, and texture marks, which the current Law does not address), patents, trade names, emblems, expressions or signals of commercial advertising, geographical indications, appellations of origin, trade secrets, utility models, and industrial designs, the new term of which will be 15 years. The new Law also provides for protection of integrated circuits and layout designs (topography), which did not exist before. The Law also introduces filing fee, which does not exist under the current Law. The Salvadoran Institute of Intellectual Property will have its own bulletin for the publication of all types of procedures in this area, so it will no longer be necessary to publish in the Official Gazette or a newspaper with largest national circulation, as is currently the case.

The most important patent-related aspect of the new Law is that, as in many other countries, it will be possible to rehabilitate patents that expired due to non-payment of the maintenance fee, (Those fees will increase slightly). The new Law addresses the Bolar Exception in the following manner:

 “The rights conferred by a patent that is in force cannot be enforced against the use by a third           party of the subject matter of the protection to generate the necessary information, in order to support an application for the sanitary registration of a pharmaceutical product before the National Directorate of Medicines or, as the case may be, of an agricultural chemical product before the Ministry of Agriculture and Livestock, (on the condition that) the application  may be authorized only after the patent protection period expires; and if the product is exported outside the national territory, such exportation will be allowed only to meet the marketing approval requirements in El Salvador.”

The Law also includes a new section called Intellectual Property in Digital Environments which will regulate the inclusion of the country’s domain name in a distinctive sign, cybersquatting on a domain name, resolution of disputes between domain names regarding distinctive signs, cybersquatting on a protected work title, etc., in accordance with the respective authorities handling these matters.

The most important check companies and law firms worldwide should do is to corroborate if their portfolios in El Salvador include advertising commercial expressions or slogans which now will be renewed every 10 years instead of the previous indefinite validity. The same 10-year validity applies to trade names and proof of use is incorporated. Both slogans and trade names registered before the new IP Law will remain valid for the period needed to complete the ten years of registration.

Finally, the new Law specially exempts certain parties from paying official fees; those parties include institutions at all levels of education, artists, creators, and natural and legal persons who, qualify as micro and small enterprises. Upon the new Law´s effective date, the current “Law on Trademarks and Other Distinctive Signs” and the “Intellectual Property Law” will be automatically repealed.