Enforcement

Defend your rights

Intellectual property rights can be defended through civil and penal proceedings. Moreover, the law establishes specific means to prevent the products infringing upon intellectual property legislation from entering the market or to remove them from the market.

Other Means

Legal proceedings (Civil and Criminal)

The titleholders of intellectual or industrial property rights can request the enforcement of their rights through civil actions that can stop the violation of their rights and seek reimbursement for damages. For this, it is always necessary to seek the services of a lawyer.

At the same time, intellectual and industrial property infringements are subject to criminal penalties established in Law No. 19,039 and Law No. 17,336. Intellectual property infringements are subject to fines or imprisonment according to the severity of the offense, while industrial property infringements are subject to fines.

Intellectual property criminal proceedings

Requirements for criminal proceedings

Products or goods that are the subject of certain types of industrial property rights must clearly and visibly be identified as being protected by industrial property laws. The omission of this requirement does not affect the validity of the registration nor the possibility of initiating civil proceedings, but those who do not fulfill these requirements cannot initiate criminal proceedings established in Law No. 19,039.

Commercial trademarks

Registered commercial trademarks used in the market must visibly bear the Spanish phrase “Marca Registrada” (Registered Trademark), the initials “M.R.”, or the letter “R” in a circle, in accordance with Article 25 of Law No. 19,039.

Patents

Any patented object must carry the patent number either on the product or the packaging and it must visibly bear the Spanish phrase “Patente de Inveción” (Invention patent) or the initials “P.I.” followed by the registration number, in accordance with Article 53 of Law No. 19,039.

Industrial designs and drawings

Any industrial design or drawing should visibly bear the Spanish phrase “Dibujo Industrial” (industrial drawing), “Diseño Industrial” (industrial design), or the initials “D.I.” followed by the registration number. These labels can be placed on the packaging, as long as the product is presented in a sealed fashion to the consumer, in a way that requires destroying the packaging in order to access the product, in accordance with Article 66 of Law No. 19,039.

Utility models

Every utility model should visibly bear the Spanish phrase “Modelo de Utilidad” or the initials “M.U.” followed by the registration number. These labels can be placed on the packaging, as long as the product is presented in a sealed fashion to the consumer, in a way that requires destroying the packaging in order to access the product, in accordance with Article 59 of Law No. 19,039.

Civil proceedings

The Civil Code states, in Article 2314, that “any person who has committed a crime or technical offense causing another to suffer damages, is liable to provide compensation ...”.

Thus, an intellectual property right titleholder can demand that the person who infringes their rights compensate him or her for the economic damages caused.

At the same time, Article 106 of Law No. 19,039 states that rightsholders whose industrial property rights have been infringed may bring a civil action seeking the following:

• a) The cessation of the acts infringing the protected right.
• b) Compensation for damages.
• c) Adoption of the measures necessary to avoid the continuation of the offense.
• d) The publication of the decision, at the expense of the party found guilty, by means of inserts in a newspaper to be chosen by the plaintiff. This measure shall apply where the decision expressly so determines.

The aforementioned actions, in accordance with Article 107 of Law No. 19,039, shall give rise to a summary judgment, expediting their processing.

With regard to compensation, Article 108 provides the means for the plaintiff to determine damages according to general rules or according to one of the following rules:

• a) The profits that the rightsholder would have ceased to earn as a consequence of the infringement.
• a) The profits that the infringer would have earned as a consequence of the infringement.
• c) The price that the infringer would have paid to the rightsholder for the granting of a license, taking into account the commercial value of the infringed right and contractual licenses that have already been granted.

On the other hand, Article 85B of Law No. 17,336 on Intellectual Property states that “[t]he holder of the rights recognized by this Law shall permit, without prejudice to other types of action he is entitled to take, action to request:

• a) the cessation of the infringer’s unlawful activity.
• b) compensation for the economic and moral damage suffered.
• c) the publication of an extract of the verdict, at the defendant’s cost, by means of an announcement in a commercially circulated newspaper in the corresponding region of the injured party’s choice.”

Article 85F adds that in the process of compensation for damages, the court may order, at the request of one of the parties and without prejudice to any rights that may be claimed by third parties, the seizure and delivery to the rightsholder of the proceeds from the recital, performance, reproduction or any other form of unlawful exploitation.

Other means of protection

1. Precautionary measures

Article 112 of Law No. 19,039 on Industrial Property establishes precautionary measures for the protection of industrial property rights. Among these are:

• The immediate cessation of the acts constituting the alleged infringement
• Seizure of the products involved in the alleged infringement
• The appointment of one or more receivers
• A ban on advertising or promoting the products involved
• The withholding of assets held by a third party

The measures contained in the Civil Procedure Code can be requested in addition to these. All these measures can be requested by way of preliminary ruling, as long as all requirements for it are met.

2. Border measures

Law 19,912 establishes the border measures for the enforcement of industrial property rights, in order to prevent the entry and exit from the country of products infringing on intellectual property.

According to this law, any person can request the measure before a court; additionally, the Customs Service can apply ex officio measures in cases involving goods with falsified registered trademarks or goods infringing on copyright.

How can I avoid purchasing counterfeit products?

Remember that purchasing a counterfeit product exposes you to the risk that the product fails or contains toxic material, in which case the money paid cannot be refunded and it is very difficult to make the producers take responsibility for damages.

Buying from authorized retailers..

When buying online or via television, pay special attention to the origin of the products.

Evaluate the price of the product. If the price is very different from the normal market price, the product probably has an illicit origin..

Inspect the product label before purchase..