Is Custom Recordal of Intellectual Property Rights (IPRs) available in El Salvador?
Is Custom Recordal of IPRs compulsory in El Salvador?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in El Salvador?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in El Salvador?
The Legislative Decree No. 913 or 2005 on Trademarks forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in El Salvador.
Is Custom Recordal of IPRs effective on import or export of goods or both?
It is effective on imports, exports, and transit of goods.
What is the role of the customs department/authority? (Kindly give 2-3 points)
The role of the customs department is to oblige and consider the request made by the IP rights holder to deter the influx of goods of infringing nature being imported to or exported outside of El Salvador. While acting in furtherance of such a request, it is the duty of the customs department to ensure that the goods detected of suspicious activities are forfeited and detained with the customs. It is also the role of the customs to receive and hold any payments in the form of bonds, guarantee, or security.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
If the IP rights holder has suspicion that a certain import, export, or goods in transit may have presumably counterfeit or confusingly similar marks, he or she may request the competent court to suspend the same by adducing sufficient pieces of evidence alongside the request.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
As mentioned under article 96, the IP rights holder should provide adequate evidence to satisfy the competent court that there is prima facie case of infringement of his or her IP rights. This includes a sufficiently detailed description of goods that would be reasonably known by the IP rights holder, but he or she needs to make them readily recognisable. It is also cautioned that the requirement to provide sufficient information should not discourage the parties from having recourse to these procedures.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
There is no such timeframe; however, any intimation of such sort shall be made at the earliest.
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in El Salvador by land, sea, and air?
Yes, the customs department has a centralized system.
Is there an online system for Custom Recordal in El Salvador?
It is not possible to make a request of recording the intellectual property rights with the customs through an online medium. A written request has to be made.
What is the official fee for Custom Recordal in El Salvador?
What is the term of Custom Recordal of IPRs? Can it be further renewed?
The intellectual property rights are recorded with the customs only concerning a particular import or export of goods, which might be infringing the proprietor’s rights. They are not generally applicable for a particular period of time rather for specific occasions only.
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within El Salvador?
In which scenario does the customs department/authority suspend the clearance of imported goods?
If certain goods are found to be of infringing nature as per the request of the rights holder, the customs may suspend the clearance of such goods until a final determination by the court is made.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The applicant bears the liabilities and expenses related to the suspension of the release of infringing goods.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
10 working days
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
An IP rights holder has 10 working days to produce an injunction order or an evidence of court proceedings to detain the goods. If due justification is provided, that period maybe extended by a period of 10 additional working days.
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
The competent court may require the rights holder initiating suspension proceedings to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures. The said deposit may take the form of an instrument issued by a provider of financial services to keep the importer or owner of the imported goods free from any loss or damage resulting from any suspension in the dispatch of goods in the event of the competent court determining that the item does not constitute an infringement.
In the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
If the goods detained are found to be of infringing nature, the customs inform the parties to the dispute of the same for them to prepare for the course of action to be taken. They allow taking of samples, which can be helpful in establishing the case and defending the counterparts against any adverse court orders.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
Yes, the customs authority invites the rights holder and the importer to join the proceedings at the court to resume the effect of provisional measures and later facilitate an order in favour of either of the two parties depending on the facts and circumstances of each case. If the action is not brought within 10 working days following the imposition of the measure contained in the previous paragraph, it shall automatically become invalid.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
Are there any disadvantages of Custom Recordal of IPRs in El Salvador? If yes, then kindly give 2-3 points?
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
The court may require the submission of other documents and pieces of evidence to establish whether or not the goods are counterfeit.
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
The competent court shall order the destruction of merchandise that it has determined to be counterfeit, unless the rights holder agrees for them to be disposed of in another way. Goods with counterfeit marks may be donated to charity for use outside the market when the removal of the mark eliminates the infringing characteristics of the goods and they are no longer identifiable with the mark removed. The mere removal of the illegally acquired mark shall not be sufficient to authorize the entry of the goods in the markets.
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?