GUATEMALA: An Introduction to Intellectual Property

Guatemala and Intellectual Property, Its Ecosystem, Challenges and Progress.

No one can question the relevance of Intellectual Property to the economic development of countries, since nations with the highest development indexes are precisely those that have given legal protection of innovations and commercially relevant intangibles a preeminent place in their laws and policies. That is to say, not only is the establishment of an adequate regulatory framework based on the internationally agreed minimum standards important, but also the promotion of a culture of respect for private property, the organization and support of public institutions responsible for the IP registration -tasked with ensuring its proper observance in administrative and judicial matters- and the strengthening of artistic and literary creation, broadly understood, along with academic and research sectors that can benefit and take advantage from newly available legal knowledge.

The foregoing provides international recognition and contributes to the attraction and promotion of domestic and foreign investment, which in turn generates new and better sources of employment, the circulation of intangible goods with high added value, and greater tax revenues for the State, ultimately resulting in tangible improvements in public services and access to the innovations that IP helps promote.

The role of public policy

However, we note that many governments have a passive attitude towards planning, promoting and implementing measures to maximise the advantages of a strong, effective and efficient intellectual property system. Guatemala is no exception. This does not mean that governments have made no attempts to promote development, research, innovation and sustainable growth, but they lack a very important detail: they fail to take Intellectual Property into consideration.

There are just a few opportunities in which Intellectual Property, as a discipline overseeing innovations and intangible assets, is presented as relevant factor to be considered. And when it is, it is in done vaguely and without recognising its importance.

There are several challenges that deserve the attention of those responsible for public policy within Guatemala’s economic development agenda, as outlined:

• consider the administrative and legal barriers that users or stakeholders face in protecting their Intellectual Property, such as the costs involved in accessing the Trademark Office;
• lack of knowledge and limited access to training on how to monetise creations through the various tools and instruments Intellectual Property provides;
• coordinating all public servants involved in measures to combat piracy and the trade in counterfeit goods;
• and conducting a thorough review of laws and regulations, to progressively adapt them to the challenges posed by the constant evolution of digital technology.

Overcoming challenges

However, to achieve this, the Trademark Office must have duly trained and committed personnel, who understand the role Intellectual Property plays in a society striving for better living conditions, and public institutions that are attuned to the system’s objectives in this matter.

Comprehensive consultancy on Intellectual Property matters by duly trained professionals is also necessary to ensure the foundations for the exploitation, development, and innovation of new businesses or adaptation of existing ones. It is important to mention that, due to lack of knowledge or comprehensive legal advice, Intellectual Property is generally not considered a priority by Guatemalan small and medium-sized enterprises (SMEs), and therefore they fail to recognise the full benefits it can bring to their businesses, whether as users, traders, or industrialists, including the advantages of comprehensive advice and a thriving Intellectual Property ecosystem provided by local authorities.

Formalising a business and protecting Intellectual Property as an integral intangible asset are key steps in building a solid path to growth. Protecting intangibles and generating value with them enables quick access to financing, investments, and market opportunities. The combination of a formal business plan and protection of tangible and intangible assets strengthens the competitiveness of the venture and makes it a more attractive candidate for financing. Thus, a positive cycle is created: formalizing businesses and protecting assets drives innovation, which attracts investment, enabling the business to scale and develop sustainably.

Progress and improvement

It is clear that some progress, albeit minimal, has been made in Guatemala to improve the country's Intellectual Property ecosystem, promoting creation and protection. For example, administrative improvements have been implemented at the Trademark Office, aiming to soon establish a fully digital system for managing procedures. Additionally, local authorities receive periodic training through valuable international cooperation, particularly from the World Intellectual Property Organization and the American Chamber of Commerce in Guatemala. This training has also reached Customs officials and personnel from the Judicial Organism on several occasions.

In the administrative area, it is important to highlight that although progress is being made in the digitalisation of procedures, the following areas need improvement to achieve an efficient Intellectual Property ecosystem: Firstly, there are no suitable mechanisms to carry out procedures entirely digitally. As a result, the partial digitisation of certain procedures at the Trademark Office of Guatemala has exacerbated existing problems. For example, online form submission still requires printing and physical signatures, which undermines the digital ecosystem. Secondly, there is a lack of uniformity in online systems and outdated data, leading to legal uncertainty as users cannot access up-to-date information on IP platforms. Thirdly, it is not viable to create new digital possibilities if the operational personnel are not properly incentivised through fair improvements in working conditions and remuneration.

Promotion and enforcement

On the other hand, Guatemala faces challenges in promoting and enforcing Intellectual Property rights. For example, the lack of specialised Intellectual Property courts contributes to the unnecessary judicialisation of matters that should be resolved administratively by the Trademark Office, often due to a limited understanding of IP by decision-makers. Additionally, the high rate of informal businesses, combined with weak border control, facilitates the proliferation of counterfeit products, especially in the sectors of medicines, clothing, cosmetics, and electronic devices. Finally, there is a low level of knowledge about the strategic importance of Intellectual Property, especially among entrepreneurs, small businesses, universities, and creative sectors. Therefore, there is a need for education on Intellectual Property from both academic and business perspectives. Additionally, it is essential to promote public-private partnerships to boost innovation, investment, and creativity, while ensuring transparency and regular modernisation of the Trademark Office.

A comprehensive intellectual property ecosystem

Guatemala, with the goal of boosting the business economy and attracting foreign investment, must cultivate the foundations of a comprehensive Intellectual Property ecosystem. This will enhance the exclusivity of intangible rights and promote development and innovation.