INTRODUCTION

Intellectual Property, as a branch of Law, guarantees the holders of intangible assets the exercise of exclusive and absolute rights. Such protection goes beyond the simple recognition of the legal status of a creation, it also incorporates the patrimonial or economic aspect, intrinsic in its concept.

Intellectual Property Law from an integrative approach weighs the protection of inventions, trademarks, copyright, among others. In this context, industrial designs do not escape the various forms of protection of human creations. When mentioning these, we emphasize the ornamental aspect of an article, aesthetic and functional elements merge.

The protection of industrial designs contributes to economic development, encouraging creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts. It also contributes to the expansion of commercial activities and the export of national products.

An effective protection system benefits consumers and the general public by promoting fair competition and honest business practices, as well as promoting more aesthetically attractive and useful products.

With industrial designs, companies distinguish their products from those of their competitors and enhance the brand image of their items. For these reasons it is so important to ensure adequate protection of industrial designs. Furthermore, it must have, first of all, if not exclusively, an aesthetic character; The industrial design in itself, in comparison with the object to which it is applied, cannot be imposed, at least solely or essentially, by technical or functional considerations.

Industrial designs respond to the aesthetic interests of their creator and in the same way that they are associated with the commercial success of the product in the market, they can be subject to protection through unfair competition legislation in order to avoid harmful acts in the industrial and commercial field.

According to D´ALBANO, the normative regulation granted to the legal figure of unfair competition is a kind of parallel protection to the existing regulation of the fields of Intellectual Property. Indeed, the protection of unfair competition is not based on the granting of rights but on the criterion that acts contrary to honest commercial practices should be prohibited. Consequently, an industrial design can also be protected by unfair competition laws, although the conditions of protection and the rights and resources offered may vary considerably.

The regulation of competition at present has been gaining space as a strategic element in international trade relations, which has led to the need to promote and protect legal entities that may be subject to dishonest acts based on the adequacy of legal regulations. of the countries.

The repression of unfair practices constitutes a guarantee for the correct development of competitive relationships and market transparency.

Different criteria have been followed to specify what is considered unfair competition, however, the argument prevailing, both nationally and internationally, that the content of acts contrary to good customs, or to honest practices, or to correct standards in matters industrial or commercial.

It transcends due to its importance, the fact that Cuba has assumed international commitments, after becoming a signatory to the Paris Union Convention (CUP) of March 20, 1893, which it introduced in its review of The Hague of November 6, 1925 the general clause of unfair competition, provided for in Article 10bis.

Furthermore, the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), whose Article 2 requires members of the International Trade Organization to comply with the provisions of Article 10 bis of the CUP and more specifically, it obliges to protect undisclosed information through unfair competition (Article 39) implies adapting domestic legislation on this matter.

Then, unfair competition in our country has a unique nuance, determined by the typical characteristics of the Cuban economy, it is for this reason that we have set ourselves the following objectives with this work:

• Carry out a brief theoretical-doctrinal analysis of the legal figures of industrial designs and unfair competition. Examine the figure of industrial designs by protecting them through unfair competition. Analyze how these institutions are revealed. in Cuba and its regulation.

DEVELOPING

Industrial Designs. Conceptualization and protection. Relationship with other forms of Industrial Property

Industrial Design is an institution of protection within Industrial Property, which doctrinally tends to specify between drawing or design and the industrial model that by harmonizing both aesthetic and functional or utilitarian aspects, its form of protection varies.

Industrial designs can vary their form of protection depending on whether it is a drawing or design or an industrial model.

For some, "the appearance or appearance of a utilitarian product (…), that is, aspects or ornamental elements of a utilitarian article, including its two-dimensional or three-dimensional characteristics of shape and surface that constitute the appearance of the article", constitute the essential elements for its definition.

For others, “the industrial drawing or model is the ornamental or aesthetic aspect of a useful object, which can be either a combination of colors or lines (drawing) located on a flat surface or a three-dimensional object (model) in space, when it is incorporated or manifests itself in a geometric form, making its aesthetic or ornamental appearance more appreciable ”. In both cases it is an inseparable creation of a product, so it does not have an autonomous existence and has an aesthetic purpose that increases its value with respect to its existing similar ones.

Notwithstanding this small differentiation, both categories are granted the same protection based on the benefit generated for their commercialization, always directing it to the aesthetic and not the functional aspect.

Industrial designs apply to products of industry, crafts, from technical instruments and media to watches, jewelry, and other luxury items, from household appliances and electrical appliances to vehicles and architectural structures, from textile prints to recreational goods or articles of leisure such as toys and accessories for pets.

In national legislation, an industrial design must be visually striking and regulatory provisions do not protect any of the technical features of the article to which it applies. In addition, it must be reproducible through industrial procedures, otherwise it would be a work of art that could only be protected by copyright.

In order to differentiate the object of protection of an industrial design from that of a patent, it is important to emphasize that the first must refer to the appearance of an object that is not determined by technical or functional needs. However, that of a patent, whether it is a product or a process, must first of all constitute an invention, which necessarily implies that it is determined by its functional aspect.

With respect to a brand, the design must mainly be ornamental, not necessarily distinctive. A brand, on the other hand, can be made up of all types of visible signs that may or may not be ornamental, but it must always be distinctive and capable of differentiating between products or services of another company. Which leads to differentiate this protection in terms of its function and justification. This is the reason why industrial designs can only be protected for a limited time while trademarks can be protected indefinitely as long as their registration is renewed.

An industrial design adds value to the product, makes it more attractive and attractive to customers, and may even become the main reason for purchasing the product. Therefore, the protection of valuable designs is often a fundamental part of the business strategy of any designer or manufacturer.

In most countries, the protection of industrial models and designs requires registration to be granted and must meet certain requirements such as originality, (the aspect that the product acquires by incorporating the lines from the creative effort of its author that reflects its imprint) and novelty (when this characteristic aspect is not registered under the title of another person or in the public domain).

In addition, there are necessary conditions for their protection, such as industriality, it being understood that these objects with their incorporated values ​​must be conceived for their industrial exploitation, that is, applicable to industry and commerce.

By protecting an industrial design or model by registering it with a national or regional intellectual property office, the owner obtains the exclusive rights to prevent its unauthorized reproduction or imitation by third parties. This includes the right to exclude any other parties from manufacturing, offering, importing, exporting or marketing any product in which the registered design is incorporated, as well as the storage of said product for any of the mentioned purposes. Both the legislation and the practice of each country determine the real scope of protection of registered designs.

It is a practice that responds to business logic, since it improves the competitiveness and commercial value of a company and usually contributes additional profits, thereby strengthening the competitive position.

Registering a valuable design contributes to a better return on the capital invested in creating and marketing the product, and therefore results in improved profits.

It is important to note that, in some countries, there may be alternative ways to protect industrial designs:

1. According to the national legislation in question and the type of industrial design, they can also be protected as a work of art or applied art, through the protection by copyright that grants exclusive rights regarding literary or artistic works.. This represents an attractive option for small and medium-sized enterprises since in some countries designs can be considered works of art or applied art. In some countries, if an industrial design works as a brand in the market, it can be protected as a three-dimensional brand. This may be the case when the shape of the product or its packaging is considered distinctive. Unfair competition laws can also protect, in some countries, a company's industrial design and thus prevent it from being imitated by its competitors.

In some countries two types of protection may coexist: by industrial design legislation and by copyright law, it may be cumulative, that is, these two types of protection may coexist, however in other countries these forms of protection are mutually exclusive.

In general, the protection of industrial designs is limited to the territory of the country in which the protection has been requested and granted. If you want to obtain protection in several countries, you must make a deposit in each country and comply with the different procedures in force in the country.

Because on the one hand industrial designs respond to an aesthetic concern of the designer, being artistic expressions, and on the other, they are closely linked to the commercial success of the product in the market, there is a blurred limit between its protection regime and other forms of protection within industrial property itself, including, for example, unfair competition legislation.

Unfair Competition

Competition, as an economic phenomenon, coexists with others in which relationships between entrepreneurs who have similar goods or services in the market are affected to attract consumers. Not in vain, it refers that freedom and competition have become synonymous terms. Competition is the natural way of manifesting economic freedom and the initiative of the entrepreneur and, consequently, is the basis of the capitalist system.

On the term competition, from a legal perspective, various considerations have been used. "Competition, in general, means coincidence or concurrence in the desire to achieve the same thing: the one aspires to achieve the same as that other and vice versa. When the objective pursued is economic, we are within the commercial competition, which can be defined as the independent action of several companies to get each one of them in the market, the largest number of contracts with the same clientele, offering prices, the most favorable qualities or contractual conditions. The basis of freedom is freedom of economic performance. Entrepreneurs have to freely decide regarding the price, quality and conditions of the products they offer.In the same way, the acquirers must have the freedom of choice with respect to each of the elements, there is no free competition in the sense of unlimited or anarchic competition, with no other rule than the all-encompassing will of the competitors because competition is a legal phenomenon although the mobiles are cheap ”.

The rules on unfair competition can be appreciated in two aspects:

• a) The rules on restrictions of competition that presuppose the lack of free competition and try to restore it, eliminating obstacles that disturb them, therefore it is intended to ensure respect for competition itself. b) The rules on illegal competition, which presuppose, On the contrary, free competition exists and they try to channel it through ethics and law. It is then aspired to ensure correctness in the exercise of competition.

Competition law is conceived as the “set of rules that regulate competition activity, so that the principle of competition prevails in the market and the fight between competitors is carried out with loyalty and correctness”.

Competition law, given the purposes of its protection, is divided into two main sectors: on the one hand, competition defense law, also called competition limitations law; and on the other hand, the Law of or against unfair competition.

Similarly, competition law seeks to ensure that the principle of competition prevails in the activity of competition, and that it is not distorted by limitations agreed by the competitors themselves. On the other hand, unfair competition law presupposes in advance the existence of competition, not limited, between entrepreneurs and its objective is to ensure that the entrepreneurial struggle runs through fair channels, that no means are used that distort the competitive system, and that the consumer is not captured through incorrect actions, unrelated to the entrepreneur's own effort and the quality of their services.

Unfair competition, also called anti-competitive behavior, are practices that are in theory contrary to honest practices in industry and commerce. It refers to all those activities of dubious honesty (without necessarily committing a crime of fraud) that a manufacturer or seller can carry out to increase their market share, eliminate competition, etc. In other words, it means breaking the rules and leaving honesty aside in a competition.

Some unfair competition practices are:

1. London Act of June 2, 1934 The Hague Act of November 28, 1960 Monaco Additional Act of November 18, 1961 Stockholm Supplementary Act of July 14, 1967, amended September 28, 1979 Geneva Act of the Arrangement of the HayaAgreement on Trade-Related Aspects of Intellectual Property (TRIPS), 1995. WIPO Edition, Geneva. 1999 Decree-Law No. 290/2011 "On Industrial Inventions and Designs". Decree-Law No. 203/1999 "On Trademarks and other Distinctive Signs".

CONSULTED SITES

• http://www.enccyclopedia-juridica.biz14.com/d/derecho/derecho.htm> http://www.monografias.com/trabajos84/a-la-proteccion-legal-dibujos-y-modelos-industriales- spain / a-the-legal-protection-drawings-and-industrial-models-spain.shtml # casoprobla # ixzz3LKyI2r00http: //www.monografias.com/trabajos44/diseno-industrial/diseno-industrial2.shtml#ixzz3LL5CxmCLhttp: // www.monografias.com/usuario/perfiles/hapineda

REFERENCES

D´ALBANO MOGOLLÓN ROJAS, Igor. "Intellectual property. Selected themes ”. Vadel Hermanos Editores CA Caracas. Venezuela. 1997 P 272

Article 10bis of the Paris Convention establishes:

1) The countries of the Union are obliged to ensure effective protection against unfair competition for nationals of the countries of the Union.

2) An act of unfair competition constitutes any act of competition contrary to honest uses in industrial or commercial matters.

3) In particular, the following should be prohibited:

1. any act capable of creating confusion, by whatever means, regarding the establishment, the products or the industrial or commercial activity of a competitor;

2. false assertions, in the exercise of trade, capable of discrediting the establishment, products or industrial or commercial activity of a competitor;

indications or statements the use of which, in the course of trade, may mislead the public as to the nature, mode of manufacture, characteristics, suitability for use or quality of the products.

BaylosCorroza, Hermenegildo. Industrial Law Treaty, Ed. Civitas, Madrid, 1993, p. 283.

Ibid.

Virgós Soriano, Miguel, International trade in the new Spanish law of unfair competition, Ed. Civitas, Madrid, 1993, p. 59.

Vázquez De Alvaré, Dánice, “APPROACH TO THE LEGAL FRAMEWORK OF THE REPRESSION OF UNFAIR COMPETITION IN CUBA, RBC-DIGITAL.