Patents, trademarks, and copyrights are powerful tools for promoting the economic and cultural development of modern society. We talked about Andorra’s achievements and development prospects in this area with Jonathan Hinkson, Director of the Legal Department and Attorney at Augé Holding Group.
Interview: Irina Rybalchenko
Does the legal framework of the Principality of Andorra provide sufficient protection in the field of intellectual and industrial property?
The Principality of Andorra has a very well-developed legal framework. There is the Trade Marks Act of 1995, the Patents Act of 2014, and the Copyright Act of 1999. Each of these laws of the General Council have been supplemented by their corresponding secondary legislation. We now have a fairly strong legal framework for the protection of intellectual and industrial property rights owners.
This legal framework gives some optimism and peace of mind to companies and investors, since Andorra has an ecosystem that allows for the development of projects and the protection of inventions, brands, and business identity.
Thus, these intellectual and industrial property rights do have a cross-cutting function and allow the consolidation of businesses via specific intangible assets.
What are the advantages of registering a trade mark or patent in Andorra?
Trade marks and patents are industrial property rights, and are therefore territorial in nature. They are only enforceable in those countries where the trade mark or patent is registered with the competent office. Therefore, if an entrepreneur wishes to register an Andorran trademark, he or she must file a trademark application with the Andorran Trademarks and Patents Office (OMPA) – the said mark only protects the territory of Andorra.
Brands are valid for 10 years and may be renewed indefinitely.
In contrast, patents are valid for 20 years and cannot be renewed. When the patent expires, the protected invention enters the public domain.
Are Andorra’s fees competitive with neighbouring countries such as Spain and France?
In Andorra, OMPA fees are reasonable and there are no obstacles to protect your industrial property rights. To keep a patent in force you have to pay an annual fee, but in Andorra there is a “grace period” for the first two years. The annual fee does not start to be paid until the third year of the patent application. In any case, the amounts mentioned are very symbolic.
We also have a system in the field of brands that is almost unique in the world: in Andorra there is no such thing as an “opposition procedure.” In general, in any country in the world, the publication of a trade mark application entails an opposition period (it is two months in France or Spain and three months for a European Union trade mark application) allowing the holder of earlier rights to oppose the registration of a third party’s mark. Here, in Andorra, no such opposition procedure exists. Thus, an Andorran trade mark can be registered in 3 to 4 days. This is practically a unique practice in the world.
As for the “time frame” for patent registration, it is about 10 months, which is very fast compared to other countries.
Has the demand for trademark and patent registration recently increased?
Yes, with the liberalisation of the economy and the adoption of the Foreign Investment Act, Andorra has seen an increase in the number of applications for trademarks and patents.
There are around 40,000 brands registered in Andorra. But I prefer not to think about last year’s data, and instead highlight the current growth potential. We must take into account all the brands that are not yet registered in Andorra but are already present on the Andorran market – particularly in the agri-food, jewellery, automotive, and sports sectors.
The brand corresponds to the identity of the business as a distinctive mark of paramount importance in the market. As a law firm led by Mr. Pere Augé as an accredited representative, we promote new businesses and support entrepreneurs so that they can register their brands in Andorra and thus obtain adequate legal protection.
In the area of patents, there is much work to be done to raise awareness of the importance of protecting inventions and properly structuring the portfolio of industrial property rights.
In which areas are the most patents registered?
Patent law is a very transversal one. Theoretically, all inventions in any field of business can be valid candidates for patent protection. Currently, we see that the automotive industry, optics, and the field of sports are very relevant.
Amateur athletes want access to the same gear and accessories as professional athletes. This trend has a decisive impact on the momentum of the innovation current in the sports ecosystem, which promotes new inventions and dictates the conditions for their proper protection.
Do many foreigners come to Andorra to register their patents?
There are more foreign companies than Andorran ones that apply for a patent in Andorra to protect their inventions. In the field of patents, we mainly have clients from Europe – we register their patents in Andorra and coordinate the registration of their inventions in other countries with the support of our authorised correspondents.
An important aspect is that Andorra has a system of optimisation in the field of patents called the “Patent Box.” This special tax regime is provided for in the Corporate Tax Law and applies to the management of patents and software.
This attractive environment allows entrepreneurs who wish to optimise their inventions for tax purposes to arrange (on a contractual basis) the management of their patents and software rights with an Andorran company.
The general corporate tax rate in Andorra is 10%. When an Andorran company is included in the “Patent Box” it allows an exemption of 80% of the tax base on income from the assignment or granting of licenses for patents and/or computer programs. This is an effective tax rate of 2% on this type of income – in other words, a very attractive rate.
What is the liability under Andorran law for infringement of intellectual property rights?
It is one thing to register a trademark, a patent or be the owner of a copyright, but it is quite another to enforce one’s intellectual property rights against third parties.
Civil liability for infringement of intellectual and industrial property rights in Andorra depends on several factors. Leaving aside the extra-judicial stage, the defence of these IP rights is done through legal action brought at the Andorran Court (“Batllia” in Catalan). The assessment criteria established by the law for calculating damages are the losses suffered by the owner of the infringed right and its lost profit.
The Court decision handed down by the Judge includes the procedural costs to be borne by the infringer.
Has Andorra signed any international agreements in the field of intellectual and industrial property?
The Paris Convention for the Protection of Industrial Property of 1883 was one of the fundamental international agreements for the protection of industrial property. Pursuant to this Convention, when a trademark or patent is applied for at the Andorran Trademark and Patent Office such application triggers a right of priority. This right is part of a company’s global strategy. When a company applies for a trademark, this generates a six-month period to extend the geographical scope of said trademark.
In the area of patents, the period is twelve months. This international agreement positions Andorra on the international scene, giving it undisputed legitimacy, which is very important on a political level, as well as for businessmen and for the practitioners of IP law.
There is another convention signed and ratified by Andorra: the Berne Convention for the Protection of Literary and Artistic Works (1886). The above-mentioned agreement harmonises copyright rules.
What about copyright protection in Andorra?
Copyright law protects works by the very fact of their creation. Unlike industrial property rights, copyright does not require registration with an Intellectual Property Office.
However, in the US, there is a copyright office that allows copyright owners to provide proof of the creation of their work and the date of creation.
I see a great predisposition of the country to identify new talent in the field of art. It would be good for new artists to be based in the Principality of Andorra, as artists are great ambassadors allowing them to create and develop projects at an international level from Andorra.
Moreover, we implement surveillance services to detect infringements and protect our clients’ copyrights. One of Auge Holding Group’s objectives is to optimise professional services in favour of clients, in particular in the field of “anti-counterfeiting.”
Has the country’s commitment to digital transformation helped generate added-value projects?
Indeed, there has been a commitment towards digitization clearly manifested by the Government. There are country models, such as Estonia, which have been able to develop at an administrative and judicial level in the digital field. The digitization of these processes provides a certain added value that helps to save time and simplify procedures.
In Andorra, we have collaborations with the United States’ MIT. Our country has characteristics that make it an agile “living lab” that allows the creation of differential projects, particularly in the field of “smart mobility.” I think that intelligent, sustainable mobility is a good illustration of what digitization and innovation in this sector allow. These initiatives form an effective technological cluster while capturing new initiatives and investments in technological projects. We are observing the development of revolutionary technologies, such as blockchain or artificial intelligence: it seems to be me that everything is related in some way.
One of the challenges of our small country is to present itself to the world as a showcase. Here innovation can develop with the help of technology and the necessary expertise, of a perfect telecommunication and energy infrastructure, of a rational and sustainable use of resources and, in addition, with the support of the Government in the digitalisation and diversification of the economy. It is a favourable ecosystem to promote innovative projects.
But our Government cannot do it alone. The coexistence of the public and private sectors is fundamental. What the Government can do is create entities with valid interlocutors, such as Andorra Recerca i Innovació (ARI) or Andorra Business, to “channel” innovative projects and further develop the ecosystem that has already emerged in the country. I have a feeling that the Government is providing transversal support in this area.
The mission of Auge Holding Group is to be an interlocutor of the private sector and to promote quality projects in a practical and concrete way.