The tactile or Trademark texture in the Andean Community: On the preliminary ruling 242-IP -2015 of the Andean Court of Justice

Abstract

The second “enclosure of the commons” involves the gradual appropriation of the “informational commons”. The need to keep certain signs available for use by all competitors in the market, particularly affects the attributive system of registration, which must often compensate their unflexibility by the figure of secondary meaning. In August 24, 2015, the Andean Court ruled during the preliminary interpretation 242-IP-2015, on the tactile trademark consistent in the surface of the bottle “Old Parr”. The aforementioned decision is the first ruling of an international court of justice on a tactile trademark, which is why it behaves a milestone in the progressive development of trademark law. This paper will explore the latest developments in the field, analyzing the application of the criteria of graphic representation and functionality to this new type of Trademark, as well as its possible ways of its publication, in the light of the quoted decision.