2012 CIOPORA Chronicle

developments
icultural products
trust trade activities by Zespri, their
New Zealand competitors. Zespri
had been leveraging their intellectual
property rights for various kiwi
varieties through contracts with
South Korean retailers, in which
the retailers were asked to exclude
Chilean kiwi products from their
stores.
The Chilean exporters successfully
demonstrated to the South Korean
antitrust authorities that the South
Korean consumers suffered price
damage (in the form artificially
high kiwi fruit prices) because of
Zespri’s conduct. Based on the
Chilean exporter’s claims and
their economic information, the
South Korean antitrust authorities
rescinded all of Zespri’s offending
contract clauses, and levied a
fine of almost $400,000 USD for
their illegal activities. This case is
a model for how antitrust laws can
be used to enhance and maintain
healthy competition between the
agricultural industries in competing
countries.
If you need more information just
contact me at gabriela@paiva.cl. |||
The Constitutional Tribunal issued
a formal decision that the articles
in the law bill pending to adapt
Chilean Law 19.342 to UPOV
’91, did not violate the Chilean
Constitution and were not contrary
to any part of Convention 169
because they do not adversely affect
indigenous people’s rights in Chile.
Now the discussion on the pending
law bills is in its final stages in Congress
and should be passed during
the year 2012. However, the delay
of more than three years has been a
great detriment to the rights of the
breeders, licensors and licensees of
plant variety protection registrations
in Chile.
Chilean Antitrust
Enforcement Actions
In 2010, a new government was
elected in Chile, and one of its goals
has been to increase the enforcement
of free competition law. The
Economic National Prosecutor’s
office has been very active since
then, and they have investigated
and imposed the largest fines in
Chile’s antitrust history (hundreds
of millions of U.S. dollars) in the
case of pharmacy collusion and in
the on-going case of collusion in
chicken industry association.
Chile has also established a new
focus in Agricultural Antitrust
Prosecution, which works under
the authority of the Economic National
Prosecutor. The Agricultural
Antitrust Prosecution is currently
investigating the activities of several
of the major agricultural industries
in Chile such as milk, corn and the
mentioned chicken industry association.
These are areas that must be
considered in any licensing activity
in Chile.
The antitrust laws of South Korea
were also successfully used by the
Chilean kiwi exporters, when they
complained about unfair and anti-
Gabriela Paiva
* Gabriela Paiva H., is executive
director of Global Licensing
Association Ltda in collaboration
with Patrick H. Ballew, U.S.A.
consultant of the same. Both are IP
lawyers at Paiva & CIA (Chile) and
Ballew Law in the United States.
More information at www.globallicensing.cl
and www.paiva.cl
All rights reserved Gabriela Paiva
and Patrick H Ballew, March 2012.
CIOPORA Chronicle April 2012 | www.CIOPORA.org 37