(One of the most popular food of Costa Rica)
A trademark is a distinctive sign (name, logo) that identifies a good or a service; for example, the name “Coca Cola”, which identifies soft drinks. A trademark prevents others from using the same sign for the same or similar goods. Nobody can sell a soft drink under the Coca Cola brand, but it is possible to market a soft drink using the Pepsi brand or another trademark. In turn, a patent grants an exclusive right to manufacture and market an invention. For example, a patent might be the chemical formula of the composition of the Coca Cola soft drink. The patent is for every creation of the human intellect, which can be applied in industry and meet the patentability conditions established by law. It can be a product, a machine, a tool, or a manufacture procedure. An invention is patentable if it is new, has inventive level, and has industrial applicability.
Based on these concepts, the first thing we have to establish is that the Cordero family has registered a trademark and not a patent. The registered trademark is “Chifrijo Cordero’s”. This means that they hold the registration of a distinctive sign, a name, and not a formula or a recipe. Therefore, the mixture of products that compose “chifrijo” has not been patented and can be marketed and used by any person in the world. However, it is necessary to clarify two things in order not to confuse matters. First, it is not possible to have “chifrijo” patented as a recipe, because the mixture of ingredients by itself fails to meet the requirements of a commercial patent and, second, the registered trademark is not the word “chifrijo” as a single word, which cannot be registered either, being a distinctive word that is commonly used.
This special feature is going to be fundamental when the Judge of Cartago analyzes the complaint filed by this family against more than forty business establishments, because the use of the word “chifrijo” in menus or the sale of the product in business establishments does not violate the “Chifrijo Cordero’s” trademark, and does not cause any harm to the holder of the trademark. In other words, the mere use of a common name, in this case “chifrijo”, does not violate the trademark protected by the Cordero family. A classic example of this situation is the distinction made between the trademarks “Coca Cola” and “Big Cola”, because the difference cannot be made just based on the word “Cola”. The reason is that the trademark is indivisible, but even more important is the fact that “Cola” is a common element that cannot be registered or protected.
Let’s remember that the criterion of distinction of the trademark, which prevents the risk of confusion with similar goods or services of the same category, seeks to protect the business goodwill or good reputation of a merchant, which good name and a specific quality that identifies the business are represented by his/its products. Finally, it prevents third parties to obtain possible profits by taking advantage of such distinctiveness, using identical or similar trademarks. However, such distinction has to take into account the trademark as a whole, that is, the combination of the distinctive element and the name of common use, not just taking only the latter into account.
Notwithstanding the above, it is necessary to wait for the analysis of the Judge of Cartago, to find out the details of the complaint that has been filed, the choices that will be made at the time of collecting evidence, and at the time of issuing a judgment. Save for abnormal situations that end proceedings, and in accordance with the principle that the parties delimit the scope of the case, the judge shall conduct the proceedings to the end, resolving the dispute by means of a final judgment.
It is important to make clear that the business establishments that have not been sued are not directly affected by this complaint, but they should take the above into account and pay attention to the final resolution in such Court proceedings.