Morgan & Morgan advised Avianca Holdings, S.A. in connection to a over US$ 2 billion debtor-in-possession financing structure pursuant to its reorganization plan under Chapter 11 of the United States Bankruptcy Code.
Panama, October 26, 2020. Morgan & Morgan acted as Panamanian counsel to Avianca Holdings, S.A., as Debtor; and Latin Airways Corp., Taca, S.A., AV International Investments, S.A., AV International Holdings S.A., AV International Holdco S.A., AV International Ventures S.A., AV TACA International Holdco, S.A., International Trade Marks Agency Inc. and Aviacorp Enterprises, S.A., as Guarantors, in connection with the transactions contemplated by a debtor-in-possession financing consisting of US$ 1.27 billion Tranche A senior secured financing and US$ 722 million Tranche B secured subordinated loan. The financing will help Avianca improve its liquidity and provide support to its operations.
Partners Francisco Arias and Aristides Anguizola, Associate Allen Candanedo, and International Associate Miguel Arias participated in this transaction.
You are undertaking a project for a new business, a startup. You already have the financial/commercial side well thought-out, and have commissioned a designer to sketch a logo and design a corporate identity under the brand you have decided to use. You buy stationery, signs, business cards, among others. You commence the required process to obtain a notice of operation (Aviso de Operación) at the Ministry of Commerce and Industries and, at that moment, you realize that there is not one, but several businesses whose names are identical or confusingly similar to yours.
How did this happen?
To answer this question, we must first understand what a trademark is and what is its purpose. A trademark is a distinctive sign or set of signs (below we will explain what signs can constitute trademarks) that allows us to differentiate the products, services and trade name of one company from those of another.
The main feature of a trademark is its distinctive character, that is, it must be capable of distinguishing a product and/or service from others that already exist, in order for a consumer to identify, distinguish and differentiate said product and/or service from an existing one that is identical or similar in nature.
What type of signs can constitute trademarks? The applicable Panamanian law, Law 61 of October 2012, dictates that trademarks may consist of: words or a combination of words; images, figures, symbols and graphics; letters, numbers and combinations; three-dimensional shapes; colors in their different combinations; sounds; smells or tastes; or any combination of any of the previously mentioned elements.
So, based on the above, what are the different types of trademarks?
- Fanciful Marks: Those that provide the greatest distinctive strength, since they are distinctive words or signs that did not previously exist and were conceived / created for the purpose of distinguishing a specific product or service, such as “Adidas” or “Starbucks”.
- Arbitrary Marks: Those that are nothing more than brands made up of words with a well-known meaning, but the key element is that said meaning has nothing to do with the nature of the product or service they seek to identify, such as “Dove” for soaps and shampoos or “Apple” for computers. These names have a common meaning that is different from the products they represent.
- Suggestive Marks: Those which, as its name indicates, suggest the nature of the product or service or some of its characteristics, without directly describing it. For example, “Netflix” qualifies as a suggestive mark, since the word “net” suggests the use of the internet and the word “flix” is a shortened version of “flicks”, which is a colloquial way of saying “movies”.
- Descriptive Marks: Refers to words or sets of words that identify the characteristics or elements that make up a product or service and serve to describe that product. Examples of descriptive marks are “General Electric” for an electricity company and “Telefónica” for a mobile communications company.
- Generic Marks: Those that, because of their constant use, are merely the common name used to identify a product or service, such as “Kleenex”.
Before investing in the corporate image of a business, an entrepreneur or startup founder must verify the existence of identical or similar marks, to the extent that those similar marks could cause confusion. This is accomplished by carrying out a search or verification of trademarks that are in the process of being registered or have been registered with the General Directorate for Registration of Industrial Property (DIGERPI, for its name in Spanish), and in the Panama Emprende system, since, with regards to intellectual property, Panama recognizes a right over a trademark to those persons who first used the trademark within Panama for commercial purposes. This verification can be carried out electronically, through queries in DIGERPI’s database, or in writing, by submitting a search request with said entity.
In any case, consulting with an intellectual property lawyer is advisable, so as to properly interpret the results of a trademark search and/or provide advice on the procedure to register a trademark.
With regard to ideas, we note that a single idea is not protected intellectual property. Under the prism of copyright, the formal expression of ideas is protected. This means that the ideas must have been affixed or embodied in some material mean, such as a book, a canvas, an audiovisual work, an architectural plan, a poem or a song, to enjoy copyright protection.
Finally, the main advice before investing in the name and image of a new business, is to consult the various sources available with respect to trademark and notice of operations (Aviso de Operación), and seek legal advice from an experienced attorney in the field to avoid losing what was invested in promotional materials, creating an image, time and, in the worst case, being involved in a trademark dispute. We are at your service for any queries you may have on these issues.
For more information on these topics, please contact:
MORGAN & MORGAN
Panama, October 2, 2020. Once again, Morgan & Morgan receives top rankings in the recently released Chambers & Partners Latin America Guide 2021, a key reference point of Latin American top law firms.
Morgan & Morgan has been recommended in several practices due to the firm´s excellent performance and prominent work in each one of these areas.
Likewise, the directory classifies within the top Bands the following attorneys of the firm:
- Inocencio Galindo: Banking and Finance / Projects and Energy / Corporate and M&A.
- Francisco Arias G.: Banking and Finance / Capital Markets / Corporate and M&A.
- Ramon Varela: Banking and Finance, Projects and Energy.
- Roberto Vidal: Corporate and M&A.
- Kharla Aizpurua Olmos: Banking and Finance.
- Ricardo Arias: Capital Markets.
- Ana Carolina Castillo Solis: Projects and Energy.
- Allen Candanedo: Intellectual Property.
- Maria Eugenia Brenes: Intellectual Property.
- Simon Tejeira Q.: Dispute Resolution.
- Jose Carrizo: Dispute Resolution.
- Luis Vallarino: Dispute Resolution.
- Jazmina Rovi: Shipping.
- Juan David Morgan Jr.: Shipping (Litigation).
- Francisco Linares: Shipping (Litigation).
Congratulations to all of them, and thanks to our clients for trusting us as their legal advisors in Panama.
Panama, November 1, 2019.
Morgan & Morgan advised Avianca Holdings, S.A., a company incorporated under the laws of the Republic of Panama (the “Company”), in launch and consummation of an exchange offer of the Company’s previously issued US$550,000,000 8.375% Senior Notes due 2020 for newly issued US$550,000,000 8.375% Senior Secured Notes Due 2020 (the “Exchange Notes”). The Exchange Notes will have terms that are identical in all material respects to the terms of the Existing Notes, except that, among other differences, (1) the Exchange Notes will be issued by the Company and will be guaranteed by Avianca Leasing, LLC and Grupo Taca Holdings Limited (“Taca”), which were co-issuers of the previous notes, and will additionally be guaranteed by Avianca Ecuador S.A., Tampa Cargo S.A.S., Aviateca, S.A., Latin Logistics, LLC, International Trade Marks Agency Inc., and a newly created intermediate holding company (“Parent HoldCo”), which did not guarantee the previous notes, (2) the Exchange Notes will be secured by a pledge or assignment of (a) the AVIANCA brand and certain other intellectual property registered in different jurisdictions, including Panama, (b) certain unencumbered aircraft which are currently owned directly by or in trust for the benefit of Tampa Cargo S.A.S. or by Aerovías del Continente Americano S.A. – Avianca (“Aerovias”), and (c) the residual interest in substantially all aircraft which are owned and financed now or in the future by the Company and its subsidiaries, and (3) the Exchange Notes will automatically be exchanged (the “Mandatory Exchange”) for an equivalent principal amount of 9.00% Senior Secured Notes due 2023 (the “New Notes”) on December 31, 2019 upon the closing of an investment of not less than U.S.$250 million of new equity or convertible debt in Avianca Holdings from United Airlines, Inc. (“United”), Kingsland Holdings Limited (“Kingsland”) and one or more financial institutions, of which at least U.S.$200 million thereof will be made by United and Kingsland (the “Stakeholder Investment”) and the receipt of such funds on or prior to December 31, 2019.
BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC acted as the Dealer Managers of the Exchange Offer, with BofA Securities, Inc. acting as Global Coordinator of the Exchange Offer. Wilmington Savings Fund Society, FSB, acted as indenture trustee and collateral trustee, Citibank, N.A. acted as transfer agent, registrar and principal paying agent, and Cititrust Colombia S.A., Sociedad Fiduciaria, acted as Colombian collateral agent.
In the year 2000, the United Nations General Assembly designated April 26 as World Intellectual Property Day. The purpose of this is to highlight the role that intellectual property rights play in encouraging innovation and creativity.
Across the globe, and at the initiative of the World Intellectual Property Organization (WIPO), there is a campaign every year to attract public interest to issues related to Intellectual Property. In 2019, the World IP Day Celebration takes the name “Reach for Gold: IP and Sports” and looks closely at the world of sports and how innovation, creativity and IP rights support the development of this industry around the globe.
Within the framework of this celebration, two activities will take place in our country. WIPO, the General Directorate of the Registry of Industrial Property (DIGERPI), the World Customs Organization (WCO), the Patent and Trademark Office of the United States of America (USPTO), the Spanish Patent and Trademark Office (OEPM) and the Inter-American Association of Intellectual Property (ASIPI) have prepared a sub-regional Seminar on the enforcement of Intellectual Property (IP) rights for the agencies responsible for enforcing said laws. This Seminar aims to promote the importance of monitoring intellectual property rights in the trade of goods.
On the other hand, the University of Panama organizes an initiative that consists of the creation of a space for academic, scientific and cultural innovation of great impact to develop the topic of IP and sports. This activity will be aimed at making the general public aware of the importance of Intellectual Property Law in trademark registration and how it promotes the development of different economic sectors.
Intellectual Property, tech and the legal sector
On January 31, 2019, WIPO published its first study on “technology trends”, focusing on artificial intelligence (AI) and where there is already a marked growth in the number of applications for patents related to the technology sector. It is a reality that there is already a great variety of products that will change our lifestyle, better to say, that they are already changing it, for example “bitcoins”, and the “internet of things” (IoT), where you can see a clear example of where the world is heading to in relation to mass consumption through technological means. All this leads us to suppose that, although the majority of patents in the world come from industrialized countries, in Panama and in the rest of Latin America, we must be prepared for the demand for services that this sector could bring in the immediate future.
In the legal sector, the replacement of attorneys by artificial technology that provides “legal advice” is already a reality that aims to displace human intelligence with AI, but what is the result of these advances? We will have to wait and see, since the variables of a case cannot be considered by artificial intelligence, this without mentioning the emotional intelligence that should be key in any legal advice, especially in countries of our region.
Benefits of our IP legislation and situation with China
Our country has a highly developed legislation for the protection of Intellectual Rights in general, including trademarks, patents, industrial models, plant varieties and copyrights. Our laws allow the effective protection of intellectual rights by their legitimate owners and for their exclusive use.
Latin America is a very attractive market for producers in Asia (China, Japan and Korea), North America and Europe, whose products land in Latin American markets. Most of these products transit through the Panama Canal, Panamanian ports or the Colon Free Zone. Therefore, whether you plan to protect a brand, register it in Panama for later use in the country or region, or because Panama is the gateway to the rest of the emerging markets in Latin America, Panama should always be on the list of countries that register and use a brand.
In the special case of China, our country and the Asian giant held a fifth round of negotiations of the Free Trade Agreement (FTA) from April 24 to 26, 2019 in Beijing (China). This round consists of the chapters on financial services, market access and customs procedures. The Intellectual Property chapters were proposed and negotiated by Panama and they were already approved by both parties in the Fourth Round of negotiations in 2018. For this chapter, the negotiations made by Panama with the European Free Trade Association (EFTA) have been used as a basis; and the most important regarding the negotiation with China is that Panama fully complies with all the articles proposed in said negotiation and does not need to update its legislation which, in other words, is one of the most complete in the region, especially in matters of border protection against piracy.
Intellectual Property team of Morgan & Morgan is featured in The World´s Leading Trademark Professionals 2019
Enrique Jiménez, María Eugenia Brenes and Allen Candanedo, partner and associates of the Intellectual Property Department of Morgan & Morgan, have been featured in the 2019 edition of the ranking table World Trademark Review 1000 – The World´s Leading Trademark Professionals.
The publication, which focuses exclusively on trademark lawyers, has become the “definitive source of information” for those seeking first rate experience in the field. As in all its prior publications, this year the search was exhaustive to identify the outstanding firms and lawyers in this critical area. The factors influencing the classification are: years of experience, market presence, and level of day-to-day work, as well as feedback from colleagues and clients.
For more information please click here.
Panama, September 25, 2018. Morgan & Morgan and sixteen attorneys of the firm were recognized in the Chambers Latin America 2019, guide of the best lawyers and law firms across 20 countries of Central America, the Caribbean, South America and Mexico.
The firm has been ranked in the first Bands within the areas of Banking & Finance, Capital Markets, Corporate/M&A, Dispute Resolution, Energy & Natural Resources, Intellectual Property, Offshore, Projects, Real Estate, Shipping and Shipping Litigation.
Likewise, the publication noted as leaders in their areas attorneys Inocencio Galindo, Francisco Arias, Ramon Varela, Roberto Vidal, Simon Tejeira, Jose Carrizo, Luis Vallarino, Ana Carolina Castillo, Allen Candanedo, Maria Eugenia Brenes, Roberto Lewis, Luis Manzanares, Enrique De Alba, Jazmina Rovi, Juan David Morgan Jr. and Francisco Linares.
One of the clients interviewed stated that “Judging by the results that the firm achieves, I can say that their advice is effective and arrives in a timely manner. I would highlight their availability and technical competence”.
About Morgan & Morgan
With over 80 lawyers and 20 practice areas, Morgan & Morgan is a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial institutions, government agencies and individual clients. Of particular note is our continuous advice for clients involved in all stages of the development of important projects related to energy, water supply, construction, oil, mining, public infrastructure, retail, ports, transportation, among others. Learn more at www.morimor.com.
Morgan & Morgan acted as counsel to DMPTY, INC., a Castillo Hermanos company, with respect to an agreement for the acquisition, from Empresa Panameña de Alimentos, S.A., of 100% of the issued and outstanding shares of Sociedad de Alimentos de Primera, S.A. (SAPRISA); owner of the Bonlac brand and line of dairy products.
With this acquisition, the Castillo Hermanos group, based in Guatemala, would add a new line of business, and an important brand, to their various investments throughout Central America, including those in the beer industry, refreshments, carbonated and non-carbonated drinks, juices, among others.
Partner Francisco Arias and associates Aristides Anguizola, Pablo Epifanio, Milagros Caballero and Allen Candanedo, participated in this transaction.
As part of our Pro Bono program, on May 23 a group of lawyers and volunteers from Morgan & Morgan took part in a free legal assistance fair organized by allied organizations such as Movimiento Nueva Generación Curundú, APROJUSAN and Fundación Amaneceres. During the activity, a group of 50 people received free legal advice and participated in a workshop covering topics related to domestic violence and healthy relationships.
The team from Morgan & Morgan was represented by attorneys Eduardo Castroverde, Ricardo Arias, Allen Candanedo, Dorcas Osorio, Alexis Medina, Mayté Sánchez and Pablo Epifanio; as well as volunteers Versellis Figueroa, Johanne Carrión, Beatriz Espino, Angélica Ortíz and Paola Pérez.
Through initiatives such as this, Morgan & Morgan confirm its commitment to the Pro Bono Declaration of the Americas and equal access to justice.
Como parte de nuestro programa Pro Bono, el pasado sábado 23 de mayo un equipo de abogados y voluntarios de Morgan & Morgan participaron en varias jornadas legales, organizadas por el Movimiento Nueva Generación Curundú, APROJUSAN y la Fundación Amaneceres. Durante estas jornadas se ofreció orientación legal gratuita a más de 50 personas, quienes además recibieron capacitación en temas de violencia doméstica y relaciones sanas.
El equipo de Morgan & Morgan estuvo conformado por los abogados Eduardo Castroverde, Ricardo Arias, Allen Candanedo, Dorcas Osorio, Alexis Medina, Mayté Sánchez y Pablo Epifanio; y los voluntarios Versellis Figueroa, Johanne Carrión, Beatriz Espino, Angélica Ortíz y Paola Pérez.
Con iniciativas como ésta, Morgan & Morgan reafirma su compromiso con la Declaración Pro Bono de las Américas y con el acceso igualitario a la justicia.
From 2 to 6 May, the 137th edition of the International Trademark Association (INTA) annual meeting took place in San Diego, California. Partner Enrique Jimenez and associate Allen Candanedo from the IP Practice Group of Morgan & Morgan, represented the firm in this important annual event.
This year more than 9,800 participants from 145 countries had the opportunity of networking and sharing their experiences and knowledge in several forums and social events on important trademark issues from around the world and across industries.
INTA is a global association of trademark owners and professionals from 190 countries dedicated to supporting trademarks and related intellectual property in order to protect consumers and to promote fair and effective commerce.
Del 2 al 6 de mayo, se celebró la 137 edición de la reunión anual del International Trademark Association (INTA) en San Diego, California. Los abogados Enrique Jiménez y Allen Candanedo, socio y asociado respectivamente, tuvieron la oportunidad de participar como representantes de Morgan & Morgan en este importante evento anual.
Este año más de 9,800 participantes de 145 países tuvieron la oportunidad de interrelacionarse y compartir experiencias y conocimientos en varios foros y eventos sociales sobre importantes temas de marcas de todo el mundo y en las distintas industrias.
INTA es una asociación internacional de titulares de marcas comerciales y profesionales de 190 países cuyo objetivo es defender las marcas comerciales y la propiedad intelectual relacionada para proteger a los consumidores e impulsar un comercio más justo y eficaz.