Is Custom Recordal of Intellectual Property Rights (IPRs) available in Guatemala?
Yes
Is Custom Recordal of IPRs compulsory in Guatemala?
No
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Guatemala?
Yes
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Guatemala?
The Law on Copyright and Related Rights (Decree No. 33-98, as amended up to Decree No. 11-2006 of the Congress of the Republic) - forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Guatemala.
Is Custom Recordal of IPRs effective on import or export of goods or both?
Customs recordal of IPRs is effective on imports, exports, and also on goods in transit.
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 intellectual property rights holder to deter the influx of goods of infringing nature being imported to or exported outside of Guatemala. 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 an IP rights holder believes that an import or export of products might infringe upon his or her rights, he or she may:
a) Request the relevant customs authorities to suspend the import or export in question for a period not exceeding 10 working days; or
b) Request the competent judge to order the customs authorities to suspend the release of that that import or export.
Notwithstanding the foregoing, the customs authorities must apply ex officio border measures before the competent judicial authorities if they suspect that there are goods imported, exported, or in transit infringe a right protected by this law.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
The holder of the right looking forward to requesting border measures of this law needs to provide the customs authorities or the competent judge, sufficient evidence that, at first glance, there is infringement, and must provide sufficient information to reasonably expect a right to be held by the holder to the goods suspected to be recognized easily. The requirement to provide sufficient information shall not unreasonably discourage the use of 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?
Yes
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?
When the customs executed the suspension of the import or export of the goods in question infringing the said IPR, they shall immediately notify the importer or exporter of the same and the applicant of the measure.
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Guatemala by land, sea, and air?
Yes, the customs have a centralized system.
Is there an online system for Custom Recordal in Guatemala?
No, a written request has to be filed with either the customs or competent court authorities.
What is the official fee for Custom Recordal in Guatemala?
What is the term of Custom Recordal of IPRs? Can it be further renewed?
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Guatemala?
Yes
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?
Yes
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?
Yes
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?
Yes
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?
Yes
If the answer to the above question is 'Yes,' then what is the deadline to do so?
The IP rights holder has 10 working days to produce an injunction order or 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?
Yes
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
The competent judicial authority shall be entitled to require the rights holder, who has initiated a process of suspension, pay a guarantee or surety sufficient to protect the accused and the competent authorities and to prevent abuses. Such warranty or guarantee may not be unreasonable so as to discourage the use of such procedures. This guarantee can be an instrument issued by a service provider financial to leave the importer, exporter, or owner of the goods imported or exported safe from damages resulting from the suspension of the release of the articles if the competent authorities determine that the item is non-infringing.
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 effect of the 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 Guatemala? If yes, then kindly give 2-3 points?
No
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?
As per Article 132 bis on Copyright and Related Rights Decree, if the competent authorities determine that the goods are pirated, they will be destroyed in accordance with a warrant, unless the rights holder approves an alternative arrangement. In no case may the competent authorities allow export of pirated goods to allow it see subject to other customs procedures except in exceptional circumstances.
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?
