What are the causes of counterfeiting and piracy in Argentina?
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.
Which are the goods that most often face counterfeiting and piracy in Argentina?
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.
Does Argentina have a well-established framework for the enforcement of Intellectual Property Rights (IPRs)?
What are the specific laws/orders/rules laid down in Argentina for the enforcement of Intellectual Property Rights?
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
What are the different types of IPRs protected by IPR enforcement in Argentina?
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.
What are the general IPR enforcement obligations 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.
What are the essential to-dos before an IP rights holder initiates the enforcement proceedings?
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.
Is there any limitation period for filing an infringement action?
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.
Which of the following IPR enforcement channels is/are available in Argentina?
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Are civil actions available for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in civil litigation?
Which of the following types of civil remedies is/are available in Argentina?
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Are there any other civil remedies available in Argentina than the ones mentioned above? If yes, then kindly explain in brief.
What is the approximate timeline of civil litigation related to IPR enforcement in Argentina?
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.
What happens if an IP rights holder abuses the enforcement measures in civil litigation?
Are there any disadvantages of civil litigation in Argentina? If yes, then kindly give 2-3 points?
Is criminal prosecution available in Argentina for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in criminal prosecution?
Which is the responsible authority in Argentina corresponding to the types of criminal remedies available? Also, mention the imprisonment term and the monetary fine.
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.
Are there any other criminal remedies available in Argentina than the ones mentioned above? If yes, then kindly explain in brief.
What happens if an IP rights holder abuses the enforcement measures in criminal prosecution?
Are there any disadvantages of criminal prosecution in Argentina? If yes, then kindly give 2-3 points?
Are there any alternative dispute resolution mechanisms which allow parties to resolve their dispute out of court?
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.
Are border control measures (customs) available in Argentina for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to the customs authority/department to support his claims of infringement against the opposing party/importer of counterfeit goods?
What are the remedies available under border control measures (customs) in Argentina?
The remedies available under border control measures (customs) in Argentina include destruction of goods.
Who must bear the costs of customs intervention during enforcement?
The applicant pays the costs of customs intervention during enforcement.
What happens if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs?
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.
Which are the best practices for enforcement of IPRs in Argentina?
Are there any risks involved in the enforcement of IPRs in Argentina? If yes, then kindly give 2-3 points.
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.