Rodrigo Albagli

Albagli Zaliasnik, Santiago

ralbagli@az.cl

   

Antonia Nudman

Albagli Zaliasnik, Santiago

anudman@az.cl

   

The Mapuche people are one of Chile’s most prominent indigenous peoples, both for their social and demographic influence and for their strong sense of cultural identity, which has historically found forms of resistance and change.

With the objective of promoting the trade of its entrepreneurs while assuring respect of the Mapuche culture, the Confederación Económica Mapuche (CEM), an organisation formed by a group of Mapuche entrepreneurs, pro-economic and productive development of the Wallmapu, seeks the restitution of the economic power of the Mapuche people, following their ancestral cosmovision in the kume mogen (good living). The Mapuche Economic Confederation, created in 2018, aims to turn the Araucanía region into one of the leading economic areas in Chile through the Mapuche Free Trade Zone (Zoframa) and the Mapuche Seal. These initiatives will bring tax-free investment, generating greater employment and foreign investment in partnership with the Mapuche people.

The CEM in collaboration with the Pro Bono Foundation of Chile and the National Institute of Industrial Property (INAPI), convened at our offices to take on the important challenge of obtaining a certification mark for them. This project was of special relevance because there was no similar certification mark in Chile or any Organisation for Economic Co-operation and Development (OECD) country which we could use as a reference. Consequently, the legal strategy approached had to allow us to move ahead of any arising obstacles.

After years of work, on 10 September 2021, Albagli Zaliasnik, through our partner Eugenio Gormáz and our associate Antonia Nudman, was able to register the ‘SELLO MAPUCHE’ certification mark, allowing entrepreneurs to certify that their products meet certain quality standards and that they have been made with respect of their culture and traditions, in manufacturing and production processes. This is the first time a certification mark registration linking certain products with the original ethnic origin of an indigenous community in OECD countries had been obtained, constituting a historic milestone.

Subsequently, we had to initiate the second stage of the strategy regarding the presentation of the trademark, the preparation, strategic and analytical drafting of the ‘Regulations for the Use of the Certification Mark’. This was a particularly relevant challenge. The document involved the description of each of the more than 100 products included in the certification mark, both in technical aspects and in the legal and regulatory areas with which they had to comply. Our goal was to be able to include all the products which are an integral part of Mapuche culture, not only jewellery or textiles, but also food, cosmetics, perfume, among others.

In addition to the legal and regulatory aspects of each description, the challenge involved the study and understanding of Mapuche culture with respect to each product. For example, respect for animals in the production processes, care for the environment or the rites the native community present at each harvest. For this, it was necessary to become actively involved with the people in charge of the CEM. Our objective was to honour and embody the traditions of the Mapuche people in each of the production processes.

After overcoming various formal observations made by the INAPI, on the understanding that there was no such project at the time, the trademark was the subject of an opposition claim by a third party, which added another obstacle to the procedure: the litigious defence of the certification mark. After a lengthy trial we were able to obtain a favourable ruling at first. However, the opposing party filed an appeal before the Industrial Property Court. On the understanding that our main objective was for Mapuche entrepreneurs to take advantage of the benefits of the certification mark, we were able to reach an agreement after an extensive process of negotiation.

By delivering pro bono legal services, Albagli Zaliasnik has concluded one of the largest projects intended to enhance the entrepreneurial dignity of an ethnic origin of a native people in Chile. The Mapuche community case is one of the most important pro bono projects our firm has undertaken in matters of intellectual property and is probably also one of the most important and representative cases in our firm’s history.

Therefore, after years of work, we were able to finalise the project, which ended with the official launch of the ‘SELLO MAPUCHE’ certification mark in Araucanía, southern Chile. Albagli Zaliasnik took part in the event, chaired by Jaime Huenchuñir, president of the CEM. The main ‘Lonkos’ or chiefs of the Mapuche communities participated in the event, along with representatives of the Chilean government and public institutions.

Jaime Huenchuñir, president of CEM commented: ‘As an organisation we are tremendously grateful for the support given to this project. We are happy to be able to make it known, together with Albagli Zaliasnik’s team of lawyers.’

The certification mark will allow Mapuche entrepreneurs to compete in national and international markets, ensuring through an objective procedure that the products identified by the mark are of high quality and have been made directly by people who belong to the native community. This enhances and respects their culture and traditions, both in the acquisition of materials from which the product will be made, in the manufacture itself, and even in the packaging. Consequently, for example, all products must come from the Mapuche territory in Chile and the human involvement of a Mapuche person must predominate over an industrial process.

This project is just one example of the many ways in which pro bono work gives lawyers the opportunity to understand the struggle and difficulties, as well as the heritage and intricacies, of different cultures and traditions in a single country; while serving a social cause which has the potential to create an inspirational economic impact for an entire community.