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Enforcement of IPRs in Argentina


Enforcement of IPRs
One of the major causes of counterfeiting and piracy in Argentina is that the police officials are not proactive; they do not take ex-officio actions. Prosecutions can stall and languish in excessive formalities, and when a criminal case does reach some final judgement, criminal infringers rarely receive deterrent sentences. IP enforcement online in Argentina consists mainly of the rights holders trying to convince the cooperative Argentine Internet service providers (ISPs) to agree to take down specific infringing works, as well as attempting to seek injunctions in civil cases.
Lastly, the Tri-Border Region of Paraguay, Argentina, and Brazil, has a long-standing reputation as the hotbed of piracy and counterfeiting of many products.
Unlicensed software, hard goods counterfeiting, and optical disc piracy are widespread. Moreover, online piracy continues to grow as criminal enforcement against online piracy is nearly non-existent.
They are as follows:
  • The Law No. 11.723 that regulates the legal intellectual property regime (copyright and related rights)
  • The Law No. 24.481 that regulates patents and utility models
  • The Law No. 22.362 that regulates trademarks and designations
  • The Law No. 25.380 that regulates the legal regime for geographical indications and appellations of origin of agricultural and food products
  • The Law No. 25.163 establishing general rules for designation of wines and spirits derived from wine (GI/AOs)
  • The Decree-Law No. 6673 on industrial designs
Copyright and related rights, patents and utility models, trademarks and designations, geographical indications and appellation of origin, designation of the wines and spirits derived from wines, and industrial designs are the different types of IPRs protected by IPR enforcement in Argentina.
Pre-filing investigation necessary to ensure that the facts and evidence are sufficient to start the proceedings should be pursued.
Also, mediation is mandatory in the City of Buenos Aires before filing any court action, including trademarks cases.
In Argentina, registration is not always enough to duly protect your IPRs. According to a recent report from the European Commission, IPR enforcement remains a source of serious concern in Argentina. Once the IPR is registered, it is necessary for the owner to be proactive in the defence of the registered IPR, namely by monitoring the market for potential infringements and enforcing the IPR in question before courts. Consequently, the owner may need to use some economic resources to effectively enforce his or her IPRs and benefiting fully from his or her IPR ownership.
Other good practices include:
  • Registering IP rights before commercialising in Argentina;
  • Registering trademarks with the customs service;
  • Communicating with the public authority, such as police and customs agents, to help improve decision-making and obtain more detailed information;
  • Considering other alternatives before winning a claim to the quotes; for example, sending a cease and desist letter may be enough to stop infringement, especially in the cases where the infringer is a small retailer; and
  • Monitoring repeat infringers/offenders.
Yes, the Trade Mark Law establishes that the right to all claims by way of civil action becomes statute-barred after 03 years from the commission of the infringement or after 01 year from the date on which the owner of the trademark became aware of the infringement.
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
From the filing of a lawsuit to the rendering of a final decision, litigation proceedings usually take around 02 to 03 years in civil courts (but may take even longer). The length depends on the different pleadings and defences that the parties submit during the litigation and the nature of the evidence offered.
A) Responsible Authority - Criminal and Correctional Federal Courts
B) Imprisonment Term - Patents: 06 months to 03 years; Trademarks: h 3 months to 2 years of imprisonment; Copyrights: 1 month to 6 years of imprisonment
C) Monetary Fine - The amount of fine payable depends on the facts and circumstances of each case.
The Civil Code includes a general provision that Argentine courts have exclusive jurisdiction to decide the matters related to registration and validity of trademarks. Arbitration is valid concerning enforcement of rights and damages, but not concerning the validity of registered rights. Mediation is mandatory in the City of Buenos Aires before filing any court action, including trademark cases.
The duration of the mediation proceedings depends on the parties' willingness to negotiate and reach a settlement. If a settlement is not possible, the mediation proceeding is closed, the claimant can proceed with the court action, and what was discussed at mediation remains confidential. If the parties reach a settlement, the agreement has the same binding effect of a court ruling and can be directly enforced in case of breach through an executory proceeding.
The remedies available under border control measures (customs) in Argentina include destruction of goods.
The applicant pays the costs of customs intervention during enforcement.
If an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs, the customs can release the goods from detention into ordinary channels of commerce.
Administrative measures
Enforcement of intellectual property rights in Argentina continues to be a challenge, and stakeholders report widespread and fair competition from sellers of counterfeit and pirated goods and services. La Salada in Buenos Aires remains the largest counterfeit market in Latin America. Argentine police officially generally do not take ex officio actions. Prosecutions can stall and languish in excessive formalities, and when a criminal case does reach some final judgment, criminal infringers rarely receive deterrent sentences.