Enforcement Of IP Rights In Argentina

Author:Mr Andres Moncayo Von Hase
Profession:Bruchou Fernandez Madero & Lombardi
 
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As a result of the entry into force of the Agreement on

Trade-Related Aspects of Intellectual Property Rights

("TRIPS") within the framework of the World Trade

Organization (WTO) in 1995, Argentina began to amend its

legislation on enforcement of intellectual property rights (IPR) in

order to adapt them to the standards therein contained.

With regard to the enforcement of rights three recent

developments deserves attention, namely: I) the custom surveillance

system for trademarks and copyrights that started to operate in

2007; II) the amendment of the Argentine Patent Act in 2004 that

regulates preliminary injunctions in the field of patents; and,

(III) the proceedings initiated against downloaders of music on the

Internet.

I) Custom surveillance system for trademarks and copyright

Article 51 of TRIPS requires WTO Members to adopt procedures to

enable a right holder, who has valid grounds for suspecting that

the importation of counterfeit trademark or pirated copyright goods

may take place, to lodge an application with competent authorities

(administrative or judicial), for the suspension by the customs

authorities of the release into free circulation of such goods.

Members may extend such procedure to: (i) goods which involve

infringements of other IP rights like patents, and; (ii) infringing

goods destined for exportation from their territories.

Articles 52 to 60 of the TRIPS establish different procedural

standards to be followed by the relevant authorities within the

importation country and some procedural guarantees both with

regards to the rights of the IP owner and the importer or consignee

of the goods that are suspected to infringe IPR (e.g., right to

inspect the goods by the parties, security to be provided by the

applicant to prevent any abuse, etc.)

As a consequence of the above mentioned obligations, a special

provision was incorporated to the Argentine Custom Code in 2004

prohibiting any import or export through any custom destination

within Argentina if upon simple verification of the products it

follows that the goods bear a counterfeit trademark, are pirated

copies or violate any other intellectual or industrial property

right acknowledged under Argentine law1. Since then, no

further procedural rules implementing article 51 to 60 of TRIPS

were enacted. Due to Congress passivity, on February 26, 2007,

Argentina's Custom authority took the lead and issued

Resolution Nr 2216 (the "Regulation") that

entered into force in April 2007. The Regulation created a Warning

Registry in which trademark and copyright owners can voluntarily

register their ownership interests in IP rights at no cost. The

Warning Registry is confined to registered trademarks and

copyrights for the time being.

The registration is valid for two years and can be renewed for

similar periods upon request of the right holder. According to the

Regulation all importations...

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