The New reality of Intellectual Property: A clear reconfiguration of El Salvador´s Intellectual Property Regime

By: Carlos Enrique Castillo, partner and director

The recently executed Reciprocal Trade Agreement between El Salvador and the United States of America introduces provisions of significant importance for the immediate future of El Salvador’s legal framework governing intellectual property. Far from constituting merely a technical chapter, Article 2.5, together with Articles 1.16 and 1.17 of Annex III, establishes a new regulatory, institutional, and trade policy framework that directly affects trademarks, copyrights, appellations of origin, industrial designs, patents, and plant varieties.

THE NEW ENHANCED STANDARD FOR INTELLECTUAL PROPERTY PROTECTION

Article 2.5 of the Agreement provides that El Salvador shall ensure a robust standard of intellectual property protection, consistent with—and building upon—the minimum obligations established under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).[1] (TRIPS) de la OMC, las incrementa, las fortalece.

That said, the scope of the term must be carefully determined, as it clearly calls for enhanced protection across all areas of enforcement. This includes border measures, effective market surveillance and monitoring, and oversight of online transactions. It is not merely a matter of legislative reform; operational effectiveness in the enforcement of intellectual property rights must also be ensured.

The commitment encompasses three fundamental pillars:

1. Comprehensive Scope of Intellectual Property Rights

The Agreement adopts the definition and scope of intellectual property set forth in Part II, Sections 1 through 7 of the TRIPS Agreement, thereby encompassing:

o  Copyright and Related Rights

o    Trademarks

o    Geographical Indications

o  Industrial Designs

o  Patents

o     Layout-Designs of Integrated Circuits

o Undisclosed Information

The Agreement further expands the scope of protection by incorporating two additional modern areas of Intellectual Property:

o    Technological Protection Measures (TPMs)

o Rights Management Information (RMI)

This effectively introduces into Salvadoran law a digital enforcement model closely aligned with the United States' copyright framework, commonly referred to as DMCA-style protection. The Digital Millennium Copyright Act (DMCA), enacted in the United States in 1998, governs copyright protection in the digital environment. It safeguards copyright holders by establishing mechanisms for the prompt and effective removal of infringing online content through the notice-and-takedown process, while also limiting the liability of online service providers and digital platforms, provided they expeditiously remove or disable access to infringing material upon receiving a valid notice of infringement.

Nevertheless, it should be noted that El Salvador has been a party since 2002 to the WIPO Internet Treaties, adopted in 1996. These include the WIPO Copyright Treaty (WCT), which focuses on the protection of authors and literary and artistic works in the digital environment, and the WIPO Performances and Phonograms Treaty (WPPT), which safeguards the rights of performers and producers of phonograms, particularly against online piracy. These treaties modernize the protections established under the Berne Convention and the Rome Convention for the digital age by extending protection to copyrighted works, phonograms, and performances in digital networks. They also require legal protection against the circumvention of technological protection measures (anti-circumvention) and provide safeguards for rights management information (RMI). Accordingly, many of the digital copyright standards reflected in the Agreement are not entirely new to the Salvadoran legal framework, but rather reinforce and complement obligations that the country has already undertaken under the WIPO Internet Treaties.

2. Enhanced Enforcement Mechanisms for the Protection of Intellectual Property Rights

El Salvador undertakes to maintain:

-Civil enforcement mechanisms

-Criminal enforcement mechanisms

-Customs enforcement mechanisms

capable of preventing, deterring, and sanctioning infringements of intellectual property rights, including those committed in the digital environment.

In particular, the Agreement requires the prioritization of criminal enforcement and border measures against trademark and copyright infringements, thereby strengthening and expanding the traditional enforcement framework, which has historically relied primarily on civil, commercial, and administrative remedies.

3. Online Protection

The Agreement's express reference to the "online environment" signifies that digital service providers, online platforms, marketplaces, and payment service providers fall within the scope of the intellectual property enforcement framework. As a result, these actors must be taken into account in future—and, above all, necessary—legislative reforms aimed at strengthening the protection and enforcement of intellectual property rights in the digital economy.

III. Geographical Indications: An "Anti-Monopoly" Approach

Article 1.16 introduces one of the most sophisticated—and potentially transformative—frameworks governing Geographical Indications (GIs).

It should be noted that the United States protects Geographical Indications (GIs) and Appellations of Origin primarily through its trademark system, specifically by means of certification marks and collective marks. Unlike the European Union, the United States does not maintain a standalone sui generis registration system for geographical indications. Instead, it relies on trademark law to protect these designations as source identifiers in commercial transactions.

Unlike the traditional European model, which is founded on the robust protection of appellations of origin and geographical indications based on objective criteria—such as genuine geographical origin, historical significance, territorial connection, and unique characteristics attributable to the natural environment and human factors—the Agreement adopts a market-oriented, trademark-based, and competition-driven approach. This framework is built upon five key principles:

1. Priority of Prior Trademark Rights

Any Geographical Indication (GI) may be refused, invalidated, or challenged if its registration or use is likely to create confusion with a previously registered trademark. This principle reinforces the priority of privately owned trademark rights over collective geographical indications or state-recognized appellations of origin.

2. Exclusion of Generic Terms

If a term is considered the common name of a product in El Salvador, it cannot be protected as a Geographical Indication (GI), even if it enjoys such protection in another jurisdiction.

3. Assessment from the Perspective of the Salvadoran Consumer

The central criterion is not historical tradition or the existence of protection in foreign jurisdictions, but rather how the Salvadoran consumer understands or perceives the term or geographical indication. This assessment is based on factors such as:

-Dictionary

-Press

-Websites

-Commerce

-Imports

-International standards (e.g., the Codex Alimentarius)[2])

This principle is particularly significant for products such as wines, cheeses, spirits, and traditional food products, whose names may, over time, have become generic in the local marketplace. In essence, the U.S. approach prioritizes market competition and the continued use of terms considered to be generic, in contrast to the European model, which affords strict protection to the exclusive geographical origin of such designations, as has traditionally been the case.

4. Dissection of Compound Geographical Indications

Where a geographical indication consists of a compound designation (e.g., "X" —the product— of "Y" —the place of origin—), El Salvador:

-May protect the compound designation as a whole

-However, it may decline to protect the generic component of the designation.

This approach prevents a geographical indication from becoming a linguistic monopoly.

IV. Mandatory International Treaties: A Legislative Agenda for the Near Future

Article 1.17 establishes an unequivocal mandate:

Within a period not exceeding two years, the Executive Branch must submit to the Legislative Assembly the corresponding instruments of accession to four key international treaties administered by the World Intellectual Property Organization (WIPO):

Treaty	Impact
Geneva Act of the Hague Agreement	International registration of industrial designs
Patent Law Treaty (PLT)	Harmonization of patent procedures
Singapore Treaty on the Law of Trademarks (STLT)	Global harmonization of trademark registration procedures, designed to accommodate emerging technologies.
International Convention for the Protection of New Varieties of Plants (UPOV 1991 Act)	Strong protection for new plant varieties

V. Implications for El Salvador

Pursuant to Article 144 of the Constitution of El Salvador, international treaties concluded by the Republic with other States or international organizations become part of the law of the Republic upon their entry into force. Furthermore, domestic legislation may neither amend nor repeal the provisions of a treaty that is in force for El Salvador. In the event of any conflict between a treaty and domestic law, the treaty shall prevail.

The Agreement produces at least four strategic effects:

1. Loss of Regulatory Discretion

The Salvadoran legislature becomes bound by predetermined legal standards.

2. Alignment with the Anglo-American Trademark Model

Geographical Indications become subordinated to the logic of trademark law and market competition, departing from their traditional doctrinal and historical conception.

3. Increased Judicialization and Criminalization of Trade in Infringing Goods and Services

The State's ex officio protection and enforcement of Intellectual Property Rights ceases to be primarily a matter of civil and administrative law, becoming instead predominantly a matter of criminal prosecution and customs enforcement.

4. Internationalization of the Intellectual Property System

El Salvador becomes integrated into a global network of intellectual property registration and enforcement systems aligned with the interests of international trade.

VI.Conclusions

The Intellectual Property provisions of the Reciprocal Agreement between the United States and El Salvador are far more than a technical annex; they require a profound transformation of the country's intellectual property system.

The Agreement redefines the legal framework governing the use of product designations by establishing new rules governing the relationship between Geographical Indications and trademarks. It also introduces provisions concerning the protection of intellectual creations, the regulation of plant varieties, enhanced enforcement mechanisms, and the mandatory accession to specific international treaties, collectively establishing a more robust and comprehensive intellectual property protection regime.

For a country with a well-established tradition in Intellectual Property, distinctive products, Geographical Indications and Appellations of Origin, as well as internationally recognized trademarks, this legal framework introduces changes that may significantly influence both the economic and symbolic balances that shape the marketplace.

Drawing upon my experience in internationally significant litigation involving Appellations of Origin, I can affirm that these rules are not applied in the abstract; rather, they are contested on a case-by-case basis, trademark by trademark, and name by name. At this juncture, it is also worth considering the provisions of Article 15 of the Constitution of El Salvador, which states: “No person may be tried except in accordance with laws enacted prior to the act in question and before courts previously established by law.” Likewise, Article 21 of the Constitution provides: “Laws shall not have retroactive effect, except in matters of public order and in criminal matters …” These constitutional principles should be interpreted in light of the fact that the TRIPS Agreement itself, in its General Provisions and Basic Principles, expressly recognizes—as has long been the case—that intellectual property rights are private rights. In view of the foregoing, it is imperative to develop a strategic action plan to address future infringements arising under this new legal framework.

In light of the exclusion of generic terms associated with Geographical Indications, it will be necessary to assess whether this Agreement opens the door to the application of the Most-Favoured-Nation (MFN) principle, a cornerstone of the WTO multilateral trading system. Under this principle, any more favorable conditions of market access granted to one country must be extended automatically to all other WTO Members. Accordingly, it must be examined whether other States may benefit—without the need for further negotiations—from the concessions and commitments established under this Agreement.

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[1] Desiring to reduce distortions and impediments to international trade, while recognizing the need to promote effective and adequate protection of Intellectual Property Rights and to ensure that measures and procedures to enforce such rights do not themselves become barriers to legitimate trade.

[2] An international compilation of standards, codes of practice, and guidelines established jointly by the Food and Agriculture Organization (FAO) and the World Health Organization (WHO) in 1963. Its primary objectives are to protect consumer health, ensure fair practices in the food trade, and promote the global harmonization of food standards.