Guatemala: An Intellectual Property Overview

Guatemala’s Intellectual Property Ecosystem: Progress, Challenges and Opportunities

The importance of intellectual property (IP) to countries’ economic development is beyond question, as the most developed nations are precisely those that have given legal protection for innovation and commercially valuable intangibles a central place in their public policies – that is to say, not only the establishment of an adequate regulatory framework based on the internationally agreed minimum standards but, mainly, a culture of respect for private property, organisation and support of public institutions responsible for IP registration. Such institutions are tasked with ensuring proper observance in administrative and judicial matters, the segments of artistic and literary creation in the broadest sense of that concept, and the academic and research and development sectors that can take advantage of all the new legally available 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, likewise, greater tax revenues for the State – not to mention the benefits obtained by the population.

However, governments have adopted a passive attitude towards planning, promoting and implementing strategies to maximise the advantages of a strong, effective and efficient IP 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 do lack a very important detail: they fail to consider IP as a priority. IP as a discipline that oversees innovations and intangible assets is presented as an element to be considered in just a few opportunities and, when it is, in a very vague manner without focusing on its being transcendent.

Key Challenges and Developments

Certain challenges warrant the attention of those responsible for shaping the public policies necessary to advance Guatemala’s economic development agenda. These challenges may be summarised as follows:

• addressing the administrative and legal barriers faced by users and individuals seeking IP protection, including the costs associated with accessing the Trade Mark Office;
• addressing the limited knowledge and lack of prompt access to information and guidance on how to monetise creations through the numerous tools and mechanisms provided by IP;
• strengthening co-ordination among all public officials involved in combating piracy and the trade in counterfeit goods; and
• conducting a comprehensive review of existing laws and regulations to progressively adapt them to the challenges arising from the continuous development of digital technologies.

Achieving this, however, requires duly trained and committed human personnel, with due consideration of the role that IP plays in a society eager for better living conditions and, likewise, public institutions sensitive to the objectives that the system seeks to achieve.

Integral consultancy on IP matters by duly trained professionals is also necessary to ensure the foundations for the exploitation, development and innovation of new businesses, or the adaptation of existing ones. It is important to mention that, due to lack of knowledge or lack of comprehensive legal advice, IP is not considered a priority for small and medium-sized entrepreneurs; therefore, they do not take into consideration all the benefits to their businesses as users, traders, industrialists and other types of entrepreneurship in having comprehensive advice along with the development of an IP ecosystem provided by the local authorities.

Formalising a business and protecting the IP to be considered an integral intangible asset for their business are key steps to building a solid path to growth. Protecting intangibles and generating value with them allows quick access to financial access, investments and market opportunities. The combination of a formal business plan and the protection of tangible and intangible assets not only strengthens the competitiveness of the venture but also makes it a more attractive candidate for financing. Thus, a positive cycle is generated: formalising businesses and protecting assets drives innovation, innovation attracts investment, and investment allows the business to scale and develop in a sustainable manner.

The authors are aware that some, but minimal, progress has been made in Guatemala to improve the IP ecosystem regarding the creation and protection of IP, such as the administrative improvements that have been implemented at the Trade Mark Office to soon achieve a fully digital system in the management of procedures. Also, it is worth noting the training that local authorities periodically receive through valuable international co-operation, including the World Intellectual Property Organization and American Chamber of Commerce in Guatemala – this has also applied to customs officials and judicial personnel.

In the administrative area, we cannot fail to point out that, although progress is being made in the “digitalisation” of procedures such as the foregoing, the following aspects need to be improved for an efficient IP ecosystem.

Firstly, there are no suitable mechanisms to carry out procedures digitally in their entirety; therefore, the partial digitalisation of certain procedures before the Trade Mark Office of Guatemala has exacerbated various problems – such as filling out forms online (where the need to print and sign them physically hinders the digital ecosystem) or an inefficient digitalisation platform that results in legal uncertainty.

Secondly, and in addition to the foregoing, there is a lack of uniformity in the online systems and non-updated data, which generates legal uncertainty as users are unable to access the IP platforms with updated information.

Thirdly, the authors warn that it is not viable to create new possibilities in the digital sphere if, at the same time, this is not achieved by operative personnel making their own efforts through means of adequate and fair improvements regarding working conditions and remuneration.

Several challenges remain in promoting, protecting and effectively enforcing IP rights in Guatemala. These include, inter alia:

• the absence of specialised IP courts, which may affect the efficient judicialisation and adjudication of IP disputes and proceedings;
• the high prevalence of informal economic activities, coupled with insufficient border control mechanisms, which facilitates the entry, distribution and commercialisation of counterfeit goods, particularly in sectors such as pharmaceuticals, apparel, cosmetics and electronic devices; and
• the limited awareness of the strategic and economic significance of IP, particularly among entrepreneurs, small and medium-sized enterprises, universities and creative industries.

Addressing these challenges requires:

• strengthening IP education and capacity-building from both an academic and business perspective;
• fostering public-private partnerships aimed at promoting innovation, investment and creativity; and
• last but not least, ensuring greater transparency, institutional efficiency, and continuous modernisation of the Trade Mark Office and its administrative procedures.

Summary

In order to boost the business economy of Guatemalans and attract foreign investment, Guatemala must cultivate the foundations of a comprehensive IP ecosystem to enhance the exclusivity of intangible rights and promote development and innovation.