Trademark opportunism vs. the "indestructible block" of article 3h
The Industrial Property market in Argentina is experiencing an unprecedented phenomenon: a saturation of registration applications attempting to capitalize on public figures. However, what many entrepreneurs see as a golden opportunity is, technically, a direct path toward a waste of time and capital.
1. Technical analysis: the non-existent lock of art. 3h
The Trademark and Designations Law 22,362, in its Article 3, subsection h), functions as an impassable barrier. This regulation establishes that the name, pseudonym, or portrait of a person cannot be registered without their express consent.
Since the term "Milei" gained massive relevance, dozens of applications have been filed across various classes (apparel, consulting, cookies, associations, and pharmaceuticals, among others). This phenomenon is not unique: the case of Lionel Messi and his phrase "¿Qué mirás, bobo? Andá pa' allá" marked a milestone. Despite not containing the name "Messi," the courts and the INPI (National Institute of Industrial Property) understand that the phrase is indissolubly linked to his identity, functioning as a protected "verbal pseudonym." Without written authorization from the owners, these trademarks are rejected ex officio.
Comparative table: examples of identity infringement
| Trademark requested | Class | Probable reason for rejection |
| ¿Qué mirás, bobo? | Various | Unequivocal identification with Messi's personality. |
| Milei Energy | 32 | Lack of consent (art. 3h) and parasitic use of fame. |
| Peluca Milei | 30 | Use of pseudonym and surname without authorization. |
| Dólar Milei | 16 | Inducing error and affecting the individual's name. |
| M.I.L.E.I. (acronym) | 35 | Attempt to register a surname under the guise of an acronym. |
2. The doctrine of "notoriety" and the use of image
In trademark law, when a name or expression reaches such a degree of notoriety, protection becomes rigid. Argentine courts typically rule in favor of the individual, understanding that registration by a third party constitutes an "unfair advantage of another's prestige".
This extends to:
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Direct surnames: there is no room to claim it refers to "another Milei" without proving a legitimate prior right.
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Phrases and pseudonyms: iconic expressions or terms like "the lion" when they directly refer to the public figure, fall under the protection of subsection h.
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The use of portraits: logos including caricatures, profiles, or any identifiable graphic representation are prohibited without permission.
3. Visual metaphor: "the door without a key"
As a centerpiece of this report, an image has been conceptualized to summarize the reality of the improvised applicant. In it, a majestic lion is seen from behind, observing four ancient wooden doors representing the consumer sectors where the most registration attempts have occurred.
Each door bears a golden metallic emblem, symbolizing the ambition of the registration. However, the scene reveals a harsh truth: there are no locks on the doors, and the keys on the ground are useless. Above this scene, the "R" registered trademark symbol floats broken and in pieces, indicating that any title obtained through administrative error is null and will be struck down judicially.
4. Consequences for applicants
Many of these registrations remain stalled for years or are formally rejected. Furthermore, the use of the brand in the market—even if not registered—empowers the affected party to initiate legal action for the unauthorized use of their name and image.
Starting a trademark process under these conditions is equivalent to ignoring the pillars of Intellectual Property. The costs of official fees and legal honorariums transform into a legal liability. Success in the world of branding is born from originality; those seeking the shortcut of someone else's fame will find, at the end of the road, a lost investment.
#IntellectualProperty #TrademarkRegistration #ImageRights #Branding #LegalBranding
