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ctualmente el valor de los intangibles de una empresa constituyen la mayor parte de su valor en el mercado, es decir, un producto o servicio que no se encuentra amparado por una marca bien posicionada está destinada a recorrer un camino sumamente largo y complicado en miras de obtener reconocimiento ante el consumidor.
En este sentido, la protección de una marca o signo distintivo, así como la protección sobre invenciones (patentes) constituye una de las mayores preocupaciones de los oferentes de productos y servicios, ya que nadie está exento de sufrir la imitación o usurpación de su marca o de los usos no autorizados de tecnología que tanto cuesta desarrollar.
Por otra parte, es común encontrar en el mundo del entretenimiento y de la producción de contenidos intelectuales (llámese obras artísticas en el sentido más amplio) errores recurrentes en los que se incurre por la falta de conocimiento, o bien por malas prácticas perpetuadas y fomentadas por la propia industria. Los más comunes son denominar “regalías” de manera general a cualquier cantidad dineraria que se pague como retribución por el uso de una obra, o bien, considerar que el arreglo o adaptación de una obra preexistente le pertenece al arreglista, sin derecho alguno para el autor original.
Ambas problemáticas surgen de la confusión y falta de información para ubicar la rama a la que pertenecen uno y otros derechos, es decir, en qué momento se habla de propiedad industrial, y cuando de derechos de autor en el sentido más amplio de ambas concepciones.
En vista de lo anterior, se propone atender a las siguientes diferencias básicas:
1. La protección de las obras artísticas se basa en la manera de expresión de la idea, es decir, atendiendo a su originalidad.
La protección de una marca se encontrará basada en su distinción frente a otros signos, es decir, qué tan diferente resulta en comparación con otras considerando colores, estilo de letras, modo en que se pronuncia la marca y la idea que produce en la mente del consumidor.
2. Para ejercitar los derechos exclusivos que confiere un derecho de propiedad industrial frente a terceros, es necesario su registro ante el Instituto Mexicano de la Propiedad Industrial.
Para ejercitar los derechos autorales sobre una obra artística, no se requiere registro o depósito alguno ante autoridades, sino simplemente haber fijado la obra en un soporte material. No obstante lo anterior, se recomienda siempre obtener el registro ante el Instituto Nacional del Derecho de Autor para contar con una prueba de autoría.
3. El certificado de registro de una obra artística tiene efectos declarativos, es decir, solo constituyen una presunción a favor de quien registra las obra, pero no un derecho absoluto.
El Título de registro de un derecho de propiedad industrial (marcas y patentes entre otros) tiene efectos constitutivos, es decir, son oponibles a todas las personas y sólo su titular puede ejercitarlos sin necesidad de acreditar otra cosa adicional más que la vigencia de sus derechos.
4. Los derechos de propiedad industrial tienden a la protección de los aspectos económicos y de leal competencia en alguna rama industrial.
Los derechos de autor tienden tanto a la protección del ámbito moral de la persona que ha creado las obras (autor) como al aspecto económico por el uso y explotación de las mismas (aspecto patrimonial).
Ambas figuras protegen aspectos diferentes de una misma fuente, la creatividad humana, su aprovechamiento en el comercio y su explotación en el mundo de las artes. No obstante lo anterior, es necesario estudiar detenidamente el giro de nuestro negocio, asesorarnos de especialistas en la materia y buscar el blindaje perfecto entre la propiedad industrial y los derechos de autor que nos permitan proteger nuestros bienes intangibles de usos no autorizados que puedan tener como consecuencia pérdidas económicas significativas.
Por: Alfonso Elizarrarás H. encargado de negocios y asuntos legales en Sony Music México
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