IP/N/6/PAN/1

Panama

In civil jurisdiction, Article 141 of Law 29 of 1996 establishes the following courts: 1.1 Three (3) civil circuit courts, known as the Eighth, Ninth and Tenth Courts, of the First Judicial Circuit of Panama; 1.2 a circuit court in Colón; 1.3 a civil circuit court in Coclé, known as the Coclé Second Court; 1.4 a civil circuit court in Chiriquí, known as Chiriquí Fourth Court; 1.5 a civil circuit court in Los Santos, known as Los Santos Second Court. For budgetary reasons, only the Eighth and Ninth Courts of the civil circuit of the First Judicial Circuit of Panama were actually established. But the additional paragraph to Article 141 of Law 29 of 1996 reads as follows: "Additional paragraph. The procedural rules established in this Law will take effect immediately. However, proceedings under paragraph 3 of this Article which have been initiated before the courts provided for in this Law are established, will be referred to such courts but will be governed by the law in force at the time they were initiated. Proceedings initiated after the establishment of the above-mentioned courts shall be governed solely by this Law. Accordingly, the above-mentioned courts have jurisdiction, among other things, to hear intellectual property-related disputes, including those pertaining to copyright and related rights, product or service marks and patents pursuant to paragraph 3 of above-mentioned Article 141. Such proceedings are brought before the Third Higher Court of Justice, First Judicial District, for appellate review, as specified in Article 143 of Law 29 of 1996.

A right holder protected by Law 35 of 10 May 1996, on industrial property, by Law 15 of 8 August 1994, on copyright and related rights, or by international agreements on such matters signed by the Republic of Panama, has standing to assert intellectual property rights. Again, Article 107 of Law 35 of 1996 establishes in connection with trademarks that "…anyone may submit an application to oppose registration of the trademark" and Article 77 states, in the case of industrial designs, that "any interested party may submit to the appropriate court an application opposing the registration applied for" (Articles 117, 127, 128, 129 of Law 15 of 1994). Such persons must be represented by a lawyer (Article 608 of the Judicial Code) except for informal participation to act without authority, as covered by Article 631 of the Judicial Code. There is no requirement for mandatory personal appearance before the court by the right holder, other than a court order issued on application by one of the parties for a sworn statement to be made by the other party, a situation that is covered by Article 890 of the Judicial Code, or when the party intends to present a power of attorney in person, and does not wish to do so before a notary (Article 614, (2) and (3) of the Judicial Code).

Further to Article 173 of Law 29 of 1996, "Any party may request the other to disclose information and supply documents, by any of the following means: 1. Sworn statements by means of oral or written questions; 2. written questions or questions directed to the parties; 3. production of documents and other objects; 4. permission to enter land and other premises for visual inspections and other purposes; 5. physical or mental examinations; 6. request for acknowledgement of facts, things and documents. They may also obtain assurance of evidence by the arrangements set out in the Judicial Code". (Articles 803-818 of the Judicial Code). Again, Article 174 of Law 29 of 1996 establishes that: "Unless the court has established limitations, any party may require the others to supply it with or show information, things or documents in connection with any non confidential matter that is conducive to the purpose of the dispute and is related to the claim or defence by any of the parties …". These rules do not apply to proceedings in connection with trademarks which are governed by Law 35 of 1996; they apply only to copyright proceedings, which are governed by Article 145 of Law 29 of 1996. Furthermore, under Article 880 of the Judicial Code, the court, ex officio or at the request of a party, may require any public office, state or decentralized body or any bank, insurance company or public utility to provide reports deemed relevant, for the purpose of verifying the statements by the parties. Under Article 189 of Law 35 of 1996, judicial inspections may be performed for places, documents or things with a bearing on points at issue in the proceedings.

Articles 175 and 176 of Law 29 of 1996 cover this matter. First, with regard to information on insurance contracts, it is established that information pertaining to the application for insurance which forms part of the contract cannot be obtained. Article 175: "… If broader information or further documents are requested, the court may order this to be done by other means that the court deems appropriate, subject to the restrictions on the scope of the disclosure and to the provisions on fees and expenditures" (Article 175, third paragraph, of Law 29). Again, Article 176 of Law 29 specifies that the court may issue decisions at the request of the party which has been asked to disclose information in order to protect the party against inconvenience, humiliation, unwarranted cost or any other abuse, including a decision that: "1. The disclosure should not be permitted in view of its manifestly outrageous nature, or a surety should be required by the court; 2. disclosure should be permitted only under specific terms and conditions, including date, place and time; 3. disclosure should be made only by a means different from the one requested; 4. certain matters should not be investigated or the scope of the disclosure should be confined to certain matters; 5. disclosure should be made only in the presence of persons appointed by the courts; 6. once a statement outside the proceeding has been sealed, it may be opened only by order of the court; 7. a trade secret or other commercial research, discoveries or information of a confidential nature should not be divulged; 8. the parties should submit to the court, at the same time, specific documents or information in sealed envelopes, to be opened only on the order of the court."

The following situations may arise in connection with intellectual property: (a) Injunctions As far as misuse of intellectual property rights is concerned, Article 165 of Law 35 of 1996 establishes penalties to be applied by the court or anyone engaging in the kinds of conduct enumerated in Article 164 of Law 35 of 1996. These measures include a fine of B 100,000 to B 200,000; suspension of the right to engage in trade for a period of three months; and suspension or cancellation of the operating permit. Article 164 of Law 35 of 1996: "The manufacturer, introducer, retailer and anyone who, in one way or another, has taken part in the marketing, shall be held responsible for misuse of a patent, utility model, industrial design, trademark, trade name or advertising slogan or sign. Consequently, the appropriate penalties shall apply to the following: 1. Anyone manufacturing or processing goods covered by a patent or a registered utility model now, without the consent of the right holder or without the relevant licence; 2. Anyone offering for sale or circulating products covered by a patent or by a registered utility model, in the knowledge that they were manufactured or processed without the consent of the patent owner or without the relevant licence; 3. Anyone using patented processes without the consent of the patent owner or without the relevant licence; 4. Anyone offering for sale or circulating products which are the result of the use of patented processes, in the knowledge that they were used without the consent of the patent owner or a person with a licence; 5. Anyone reproducing industrial designs protected by a register, without the consent of the right holder or without the relevant licence; 6. Anyone counterfeiting or altering in any way a trademark or trade name; 7. Anyone who, with his own trade products or articles or in services, labels or trade notices, uses a trademark or trade name identical or substantially similar to one belonging to someone else; 8. Anyone who, in any way, uses trademarks or trade names which clearly manifest an intent to imitate in some way a trademark or trade name registered in someone else's name; 9. Anyone selling, offering for sale or consenting to sell or circulate goods or services bearing counterfeit or fraudulently applied marks, and anyone who distinguishes his trade establishment or factory by using labels, paper and other signs bearing counterfeit or fraudulently applied trademarks or trade names; 10. Anyone marking or causing to mark goods with counterfeit names or labels in connection with their nature, quality, quantity, number, weight or measurement or the country of origin or manufacture or using registered trademarks or equivalent initials, i.e. M.R. or R, when the mark does not fall under the preceding paragraphs; 11. Anyone who knowingly sells or offers to sell goods or services with false particulars, as referred to in the preceding paragraph; 12. Anyone who, in any way, uses a mark for the purposes of comparison with another mark for which the products or services are similar or identical, solely to diminish or destroy the value of the sign or trade value of the said mark, thereby prejudicing the owner. Similarly, the court may, in proceedings for infringement of protected intellectual rights, order the cessation of acts infringing the right, compensation for damage suffered (Art. 117 of Law 15 of 1994), measures to avoid continuation of the infringement, and publication of the ruling in the Official Gazette. It may order prompt precautionary measures, which are detailed in Article 172 of Law 35 of 1996, for industrial property purposes, and Articles 117, 118, 119 and 120 of Law 15 of 1994 for intellectual property. In the preliminary investigation, the official conducting it may provisionally seize the goods under investigation and the means used to commit the punishable act. The court may order the Directorate-General of Customs, whenever it learns in any way of goods customs that possibly infringe the law, to inspect and even retain such goods. Such an order may also be issued to the authorities of the Colón Free Zone and other State-administered free zones or processing areas. (b) Damages, including recovery of profits, and expenses, including attorney's fees: Those pertaining to claims by the parties: the claimant on the basis of Article 169, paragraph 2, of Law 35 of 1996, and the defendant, if prejudiced by any measure adopted under Title VII of Law 35 of 1996 or Law 15 of 1994, for which a security has previously been posted for such purposes. In rulings on civil actions brought under Article 167 of Law 35 of 1996 or Law 15 of 1994, payment of costs may be ordered for the party against which the ruling is handed down. (c) Destruction or other disposal of infringing goods and materials/implements for their production.

In the preliminary investigation referred to in Article 173 of Law 35 of 1996, the identity of third parties presumed to have participated in the unlawful act may be revealed. As specified in Article 175, the right holder protected in the Republic of Panama can play an active part in the preliminary investigation and in the criminal proceedings if he fulfils the appropriate conditions.

The laws regulating this matter include a number of securities to be posted by the allegedly affected right holders in order for them to take action. For example: (a) Article 177 of Law 35 of 1996 establishes that: " … The right holder shall contest in writing if he is opposed to the introduction or transit of the goods retained … but he is opposed, he shall be required to post a security." (b) Article 175 of Law 35 of 1996 establishes the requirement of a surety of not less than B 2,000 and not more than B 5,000 for the protected right holder to act informally in connection with a preliminary inquiry and criminal proceedings. (c) Article 172 of Law 35 of 1996 stipulates that "The court may order appropriate precautionary measures to ensure enforcement of the judgement in the case", and goes on to say that "If the action for infringement is not brought within ten days following the introduction of a precautionary measure, such measure shall automatically be without effect and the actor shall be subject to payment of compensation for any damage he has caused." (d) Again, Article 171 of the same law establishes a requirement to post a security before bringing any action for infringement of an industrial property right. (e) Intellectual property is governed by the parameters of the Judicial Code (Article 117, Law 15 of 1994), which requires that a security be posted before a precautionary measure is taken, so as to answer for any damage and costs occasioned, and this is also done in Article 119 of Law 15 of 1994. As for remedial measures applicable to public authorities or officials that have wrongfully enjoined defendants, the provisions of the Judicial Code, namely Articles 441 to 455, concerning judicial ethics, apply.

Industrial property proceedings are reckoned to last approximately five months, a period which depends, among other things, on the following: (a) Delays accumulated in each court; (b) the file has not been initiated by a party acting on an informal basis; (c) there is no need to waste time in issuing a summons for the defendant; (d) there are no new grounds for hearings or requests to suspend proceedings; (e) there are no associated lawsuits; (f) evidence from abroad is not required. It is difficult to determine the duration of other cases in these courts, since each particular case may depend on a series of circumstances relating, among other things, to cooperation from the parties and from law officials. As for the provisions on the periods to be set in intellectual property proceedings - provisions that affect the duration of this kind of case - Articles 183, 185, 187 and 188 of Law 35 of 1996 establish a period of referral within five days, and under Article 191 it is possible to issue a ruling at the hearing, failing which it is issued within a period of 20 working days. In all other matters, the provisions of the Judicial Code are followed. Intellectual property proceedings are governed by Article 145 of Law 29: they are oral proceedings, with an expeditious preliminary hearing. Article 145: Procedural rules. The proceedings referred to in Article 141, except for special proceedings, shall be governed by the following rules: 1. The proceedings shall be oral. The order of referral shall indicated the date of the hearing, which shall be notified in person; 2. The period for transmittal of the claim is ten (10) days. In the order transmitting the claim, the court shall indicate the date of the preliminary hearing, in order to consider (a) the desirability of specifying and simplifying the points at issue; (b) the necessity or desirability of correcting the written submissions by the parties; (c) the possibility of the parties acknowledging the facts and documents and thereby making it unnecessary to produce specific evidence; (d) limiting the number of experts; (e) indicating the date and time for the parties, together with their evidence, to appear at the regular hearing; (f) other matters, consideration of which may help to expedite the proceedings. All of the above shall determine the facts to be examined; 3. The parties may, up to three (3) days before the hearing on the merits, ask the court to summon witnesses, specifying their place of residence or office, in which case the court shall use the requisite compulsory measures; 4. The hearing shall be held with the parties in attendance; if none appears, despite a second summons, a reasoned ruling shall be issued on the evidence adduced or accompanying the complaint and the challenge or any evidence the court deems appropriate to add. If the evidence cannot be considered on the day indicated for the hearing, it shall be examined on the next working day; 5. The court may consider evidence ex officio and, in any event, shall summon the parties for an inter partes check of the proceedings, in accordance with the rules of the Judicial Code; 6. Preliminary issues shall be decided in the judgement, except where the Judicial Code expressly authorizes a special procedure or where, by their very nature, they can and should be resolved immediately they are formulated. In the first instance, once they are formulated, they shall be transmitted for three (3) days to the adverse party, and in the second instance, they shall be resolved summarily and without any appeal; 7. The judge must be present during the whole of the hearing, failing which his superior shall automatically or at the request of the party or of the Department of Public Prosecutions, fine him not less than 25 Balboas (B 25) and not more than 100 Balboas (B 100); 8. Postponement of the hearing shall be allowed only once and on reasonable grounds invoked by each party before the hearing starts. Otherwise, the hearing shall be held on the date indicated, with any of the parties in attendance; 9. Only a ruling ending the case, a ruling making it impossible to continue the proceeding or a ruling ordering provisional relief or precautionary measures is open to appeal. An appeal against the judgement shall be granted with suspensive effect and a ruling ordering provisional relief or precautionary measures with devolutive effect, and orders putting an end to, or making it impossible to continue with, the proceeding, with deferred effect; 10. The procedure for appeals shall be in keeping with Section 8 of Chapter I, Title XII, Book II of the Judicial Code.

The National Copyright Directorate, part of the Ministry of Education of Panama, established in 1995 under Law 15 of 8 August 1994, on copyright and related rights, is the authority with jurisdiction over cases of infringement of copyright and related rights in the administrative context (Article 2(2) and Article 109 of Law 15 of 8 August of 1994, on copyright and related rights). 9.2 Which persons have standing to assert IPRs? How may they be represented? Are there requirements for mandatory personal appearances before the court by the right holder? The persons having standing to assert copyright and related rights are the owners and right holders who have legal capacity to engage in such proceedings. Authors, as natural persons may, in their personal capacity or through legally appointed proxies, make complaints to the National Copyright Directorate, about administrative infringements by users of protected works, interpretations and productions. National companies or corporations holding copyright and related rights, or foreign companies or corporations domiciled in another country but with permanent business or establishments in Panama, must establish in the place or places where they have such business proxies or agents able to represent them under the terms of Article 589 of the Judicial Code, for which purpose they shall comply with the legal provisions on companies or corporations. Mandatory appearance by the right holder before the National Copyright Directorate is not required. 9.3 What authority do the judicial authorities have to order, at the request of an opposing party, a party to a proceeding to produce evidence which lies within its control? Neither the copyright law nor any other legal provision enables the National Copyright Directorate to order a party to a proceeding to produce evidence which lies within its control. However, in this case Article 43.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is applied, since this Agreement, like the others that go to make up the Marrakesh Agreement, was adopted under Law 23 of 15 June 1997 and is immediately applicable, pursuant to the procedures established by the Constitution in Articles 4 and 153 (3). 9.4 What means exist to identify and protect confidential information brought forward as evidence? Neither the Copyright Law nor any other legal provision contains rules pertaining to identification and protection of information brought forward as evidence in administrative proceedings. However, in this case Article 43 of the TRIPS Agreement, approved under Law 23 of 15 July 1997, applies. Moreover, the Regulations to the Copyright and Related Rights Law, establish that the Directorate shall preserve the confidential nature of computer programs. However, the authors or holders may be required to provide the requisite information to access the computer program's sequence of instructions, contained in the magnetic support, in cases of arbitration submitted to the Directorate or on a court order (Article 66, (10), of Executive Decree 261 of 3 October 1995). Article 837 of the Administrative Code establishes that anyone is entitled to copies of documents in public offices, provided they are not confidential. It also stipulates that no employee may give an ordinary copy of a document of a confidential nature or an authentic copy of any document, without an order by the chief of his office. 9.5 Describe the remedies that may be ordered by the judicial authorities and criteria, legislative or jurisprudential, for their use. Pursuant to Article 75 of the Regulations to the Copyright and Related Rights Law, adopted under Executive Decree 261 of 8 of August 1995, an order may be issued for precautionary measures, as established in Article XII of the Inter-American Convention on Copyright on Literary, Scientific and Artistic Works, signed in Washington in 1946, namely, seizure, ex officio or at the request of the injured right holder, of all publications or reproductions, and suspension of any public performance of theatre works or musical compositions in breach of copyright, at the request of the injured right holder. These measures may be adopted without prejudice to any relevant civil and criminal actions. The Third (Administrative) Chamber of the Supreme Court of Justice, in an administrative claim to declare Article 75 of Decree 261 of 1995 null and void on the grounds that it is unlawful, recently handed down a judgement of 22 October 1997 stating that the provision is not illegal inasmuch as Article 4 of the Constitution requires the Republic of Panama to abide by the rules of international law and, consequently, it does not infringe provisions of Law 15 of 1994 on Copyright and Related Rights. Moreover, the Supreme Court recognized that Article 128 of the Law establishes a special regime of protection for foreign works whereby international agreements and copyright and related rights take preference over the Panamanian legal regime. Furthermore, Article 114 of Law 15 of 1995 stipulates that the National Directorate, either ex officio or at the request of an interested party, shall proceed to suspend any kind of works or interpretations protected by the Law in question when the person responsible fails to demonstrate in writing that he is an assignee or licensee of the relevant right and method of utilization, without prejudice to the interested party's power to request the judicial authorities to take definitive measures falling within their competence. The National Directorate has powers, among other things, to impose fines of B 1,000 to B 20,000 (equivalent to US$) for infractions which "do not constitute offences" (in other words, administrative fault). In the event of repetition, namely repetition of an act of the same kind within a period of one (1) year, the fine may be doubled, as specified in Article 109 (7) and Article 113 of Law 15 of 8 August 1994. The National Copyright Directorate may also impose sanctions on companies, ranging from a warning (Article 109 (5) and (6) of Law 15 of 1994 and Article 72(5) of Decree 261 of 1995), whether public or private, a fine of B 1,000 to B 20,000 (equivalent to US$), suspension of the operating permit and cancellation of the operating permit. The National Copyright Directorate may also intervene for the purpose of conciliation and arbitration in disputes concerning utilization, by ex parte request, and monitoring and inspecting activities that arise in connection with the use of copyright and related rights (Articles 109(5) and (6) of Law 15 of 8 August 1994 and Article 72(5) of Decree 261 of 3 October 1995). 9.6 In what circumstances, if any, do judicial authorities have the authority to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the goods or services found to be infringing and of their channels of distribution? The National Copyright Directorate does not have the authority to exercise the powers established in Article 47 of the TRIPS Agreement, inasmuch as this rule applies in the event of criminal infringements and the Directorate has jurisdiction only over administrative infringements. 9.7 Describe provisions relating to the indemnification of defendants wrongfully enjoined. To what extent are public authorities and/or officials liable in such a situation and what "remedial measures" are applicable to them? Neither the Copyright and Related Rights Law nor any other legal provision authorizes the National Copyright Directorate to order indemnification of the defendant in the cases provided for in Article 48 of the TRIPS Agreement. However, it can impose disciplinary sanctions such as transfer or removal of officials for proven incompetence in a period of not less than a year in the performance of their duties or in acts inconsistent with the ethics to be observed by an official, pursuant to the procedure established in Law 47 of 1946, as supplemented and amended by Law 36 of 6 July 1995, on the organization of the Ministry of Education, and Executive Decree 618 of 9 April 1952. Abuse of the enforcement procedure by officials of the National Copyright Directorate, since it forms part of the Ministry of Education, is covered by the above-mentioned faults, except in cases of acts carried out in good faith in the administration of the Law, as stipulated in paragraph 2 of the Article. Without prejudice to this, an official who commits a disciplinary fault may also incur criminal liability for abuse of authority, pursuant to the terms of Article 336 of the Criminal Code. 9.8 Describe provisions governing the length and cost of proceedings. Provide any available data on the actual duration of proceedings and their costs. Neither the Copyright Law nor any other legal provision regulates the duration and cost of administrative proceedings. It is not possible to determine accurately the real length, for in connection with an administrative claim against Article 75 of the Regulations to the Copyright and Related Rights Law (Executive Decree 261 of 3 October 1996, under which the National Copyright Directorate may order precautionary measures) the Third (administrative) Chamber of the Supreme Court of Justice decided to suspend the effects of the provision in an Order dated 12 July 1996 (the year in which the Directorate started actions against pirated goods) and, consequently, all proceedings were suspended. Recently, the Supreme Court of Justice, in Judgement 22 of October 1997, declared that Article 75 of Decree 261 of 1995 is not illegal and it revoked the precautionary suspensive measure, a step which has made it possible to resume the cases before the Directorate. However, since the Supreme Court's recent decision, no claim has been made to the Directorate and hence the real length of proceedings cannot be determined accurately. However, it can be estimated as five (5) to six (6) months. As to costs, it should be noted that the National Copyright Directorate has not so far established any rates or charges for its services in connection with administrative proceedings.

Provisionally, the Court may order the following precautionary measures, on the basis of Article 172 of Law 35 of 1996: "1. Immediate cessation of infringing activities; 2. Retention or depositing of the infringing articles and of the means exclusively intended to carry out the infringement; 3. Suspension of imports or exports of articles or means, as referred to in the previous paragraph; 4. Posting, by the alleged infringer, of a security or other guarantee, for payment of any damages; 5. Suspension of the operating permit issued by the administrative authorities of the Colón Free Zone, a free zone or an export processing zone in Panama. Such suspension shall be lifted by a bank, monetary, insurance or State public debt security. The amount of the security shall be in proportion to the estimated damage caused; 6. Retention or depositing by the competent customs authorities of the infringing goods or articles when they are in customs or in transit in any part of Panamanian territory." In addition, the precautionary measures under the Judicial Code and Law 15 of 1994, summarized in reply No. 5, apply.

Article 171 of Law 35 of 1996 establishes that: "… Precautionary measures shall be arranged inaudita altera parte, in a separate file, and the court shall proceed promptly; it may also order that the party requesting the measure post a security, …". Article 523 of the Judicial Code states: "To prevent the effects of the proceeding from being ineffectual and the defendant from transferring, alienating, hiding, impairing, encumbering or removing any moveables or immoveables in his possession, the claimant may, before or after the claim is submitted, request at any stage in the proceedings, whether regular or special, that they be placed in the hands of a depositary to be designated by the court. Once the request for seizure is received, the court shall, at its discretion, establish the amount of the security, in light of the value and nature of the goods and the property to be seized, the sum for which the seizure is requested and possible damage, so that the security is neither derisory or excessive. The security shall cover any damage or prejudice that may be caused

Measures of this kind are adopted in an action for infringement brought under Article 171 of Law 35 of 1996, Article 117 of Law 15 of 1994 and Article 523 of the Judicial Code, in an application made to the court by the allegedly affected right holder. The court shall enforce them immediately and without further formalities and may order the posting of a security by the relevant party.

The duration of each proceeding is determined by each particular case. There is no fixed period. Similarly, the proceeding's cost and the lawyers' fees vary from case to case, (the minimum rates for trademark proceedings B 500; intellectual property proceedings B 350, approved by law.)

The provisional measures that may be ordered by the administrative authorities consist of the precautionary measures referred to in the reply to question 9.5. 14.1 In what circumstances may such measures be ordered inaudita altera parte? The National Copyright Directorate has the authority, ex officio, to order the precautionary measures described in the reply to question 9.5 above. Similarly, it may make inspections of users of protected works, interpretations and production. 14.2 Describe the main procedures for the initiation, ordering and maintenance in force of provisional measures, in particular relevant time-limits and safeguards to protect the legitimate interests of the defendants. In order to initiate the process of adopting provisional measures in the event of administrative infringements consisting of the use of protected works and productions without first obtaining authorization from the right holder, either by a licence or by written assignment of rights, it is necessary for the author or copyright-holder, through a legal representative in the case of a legal person, to first make a claim to the National Copyright Directorate against the alleged infringer, except when the Directorate acts ex officio. When the claim is accepted, an inspection is ordered of the place where the infringing activity is carried out. An order is issued for any precautionary measures and in the case of foreign works and productions, as established in Article 75 of Decree 261 of 1995. These measures consist of seizure of unlawful reproductions or publications. If evidence is available that the act referred to in the claim has been committed, the Directorate shall notify the alleged infringer, summoning him to appear within fifteen (15) days to submit evidence in his own defence. After evaluating the burden of evidence brought forward, the Directorate may decide in a substantiated decision to impose a fine of one thousand to twenty thousand balboas (equivalent to US dollars) depending on the seriousness of the wrongful act. An appeal for review against this decision lies with the National Copyright Director and final appeal with the Minister of Education. In each case, the interested party shall have five (5) working days as from notification. Once the ruling is final, an authentic copy is forwarded to the Directorate-General of Revenue of the Ministry of Finance for effective collection of the fine. The Directorate shall maintain the provisional measures throughout the proceeding and, if it acquires evidence or proof of the alleged commission of the offence against copyright it shall forward all the relevant data and report the matter to the Department of Public Prosecutions so as to proceed with the preliminary investigation and subsequent judgement of the guilty party or parties, as stipulated in Article 2026 of the Judicial Code. Consequently, where appropriate it will suspend the effects of the preventive measure and also forward all the material gathered to the Department of Public Prosecutions. If any official of the National Copyright Directorate abuses any of these measures to the detriment of the person against whom the claim is laid and does not act in good faith in discharging the law, the Director shall impose the sanctions described in the reply to question 7. 14.3 Describe provisions governing the length and cost of proceedings. Provide any available data on the actual duration of proceedings and their cost. The information on the duration and cost of proceedings is given in the reply to question 9.8.

Directorate-General of Customs In Executive Decree 123 of 26 November 1996 regulating the powers of the Directorate General of Customs of the Republic of Panama in the field of intellectual property, no specification is made as to the goods for which release into free circulation can be suspended. Similarly, non-application of the procedure is not specified for any import. The Decree in question establishes the possibility of an appeal in order to secure broad protection in respect of imported goods which infringe any provisions of the laws on industrial property rights, copyright and related rights. There is no rule under which the procedure can be applied to goods for export. Administration of the Colón Free Zone It does not have authority to suspend release of goods in the free zone. This falls under the jurisdiction of the customs authorities. However, the Intellectual Property Department does have the authority to prevent subsequent traffic in the goods which have entered the Colón Free Zone. The goods retained by the Free Zone Intellectual Property Department include all those which have violated intellectual property rights, meaning industrial property rights and copyright.

Directorate-General of Customs The principal features of the customs procedure for retaining imported goods consist of: (a) Action by order of the competent authority: A document is drawn up showing the name of the authority issuing the instruction, the date, the description of the goods, the inventory, and particulars of the consignee. Once the goods have been retained, they are made available together with the documents and the file, to the authority issuing the order. The goods will be placed where the authority indicates for such purposes. A period or time-limit for which the authority orders suspension or release is not established. Requirements: Appropriate identification of the authority ordering the precautionary measure, and adequate description of the goods and the customs post involved. (b) Action on complaint by a private party: The right holder or his legal representative may ask the customs authorities to retain goods. For such purposes, they shall supply sufficient data to locate the goods, such as a description, port of entry, container, etc. An initial security of B 2,000 shall be attached to the application. If the information proves false, the security will be held for a period of three months, for the purpose of possible damages. If the information is correct, the complaint shall be notified to the consignee by an order issued for five working days and it shall be published in a national newspaper for two consecutive days. On completion of the notification formalities, the file and the goods shall be forwarded to the Department of Public Prosecutions. Requirements: An application submitted to the customs by the right holder or his legal representative, the posting of an initial security of B 2,000 before the goods are retained, notification to the consignee and the parties. (c) Ex officio action: The Industrial Property Law stipulates that, when they learn in any way that the suspect goods are in breach of the rules concerning intellectual property rights, the customs authorities shall act ex officio. To this end, the regulations specify that, once the goods have been retained, five working days shall be available from the date of the retention order for the purpose of notifying the owner of the protected right and the consignee. Notifications shall be made by a public summons for five working days at the offices at which the goods have been retained, at the Intellectual Property Department, at the Directorate-General for Industrial Property Registration, or at the offices of the National Copyright Directorate, depending on the nature of the right infringed. Interested third parties shall be notified by publication of the public summons for two consecutive days in a national newspaper. On completion of the notifications, samples of the articles shall be given to the right holder if he so requests. The amount of the security to be posted shall be established and the samples requested will be provided where appropriate. In a period of five working days following receipt of the samples the person concerned shall submit a document in writing to the customs office at which the goods are retained, opposing release of the goods. Failing opposition, the goods shall be released immediately. The security shall be not more than 50 per cent of the value of the goods retained. Requirements: The customs authority detects the possible infringement of intellectual property rights of its own accord, notification to the right holder, consignee and third parties, submission of a written document to oppose release of the goods, posting of a security in accordance with the value of the goods. Where samples have not been requested, the period of five days shall be reckoned from the completion of the notification. Once the security and the written opposition have been submitted, the file with the goods and the security shall be forwarded to the Department of Public Prosecutions for the preliminary investigation. Administration of the Colón Free Zone (a) Action by order of the competent authority: Any authority which, in accordance with the law, is entitled to order the retention of goods passing through the Colón Free Zone, on a report of an infringement of intellectual property rights, may order the Colón Free Zone to inspect and/or retain the goods. Once they are retained, the Colón Free Zone shall make them available to the competent authority together with the file and a copy of the order. The goods shall be deposited at the place indicated by the authority for such purposes. (b) Action on complaint by a private party: The Colón Free Zone shall inspect and/or retain goods in such cases after the complainant provides information containing a description of the goods, particulars of the consignee or holder, container, port of entry and departure and/or any other data facilitating inspection of the goods. The complaint as such does not require any formalities. The complainant shall post a security of B 2,000 payable to the Treasury when the application is made and before the goods are retained. (c) Ex officio action: The Administration of the Colón Free Zone, provided it has good grounds for concluding that intellectual property rights are being violated, may order inspection and/or retention of goods passing through the area in which it operates. If, after the inspection or retention had been carried out, no news is received from the holder of the protected right within a period of five (5) working days for the public summons (itself lasting five days) it shall notify interested third parties by publication for two (2) consecutive days. If no interested person appears, the goods may not be retained for more than thirty (30) days. In the event of opposition to goods, the owner of the protected rights shall post a security payable to the Treasury of not more than 50 per cent of the valuation of the retained goods and/or the means used to carry out the infringement.

There is no rule regulating the duration of such proceedings, except for the fact that the goods may not be retained for more than thirty (30) days if no interested party presents itself. Apart from the posting of the security, no further cost is specified.

Please refer to the reply to question 16

The answer to this question is set out in the replies to questions 15 and 16.

Cases of criminal infringement of intellectual property rights have to be divided into "Offences against Copyright and Related Rights" and "Offences against the Rights of Others", and the latter should be taken as pertaining to industrial property. Pursuant to Articles 159 and 174 of the Judicial Code, the courts which have jurisdiction over cases of "Offences against Copyright and Related Rights", involving 30 days to 18 months' imprisonment, are the criminal municipal courts of the relevant geographical areas. Pursuant to the same legal provisions, the courts which have jurisdiction over cases of "Offences against Copyright and Related Rights", involving two to four years' imprisonment, are the criminal circuit courts for the relevant area of the country. Under Article 159(15) of the Judicial Code, the courts which have jurisdiction over cases of "Offences against the Rights of Others", regardless of the penalty, are the criminal circuit courts of the relevant territorial sectors.

In regard to what are known as "Copyright and Related Rights", Articles 121, 122 and 123 of the Law 15 of 8 August 1994 establish the types of conduct which are characterized as criminal and entail criminal proceedings and penalties. In regard to what is known as "industrial property", Articles 383, 384 and 385, contained in Chapter IV ("Offences against the Rights of Others") of Title XII ("Offences against the Economy"), of Book II ("Offences") of the Criminal Code (Law 18 of 22 September 1992) describe the activities which are classed as offences and entail criminal proceedings and penalties.

Under the Constitution and the Judicial Code, the public authorities responsible for initiating criminal proceedings are the Agents of the Department of Public Prosecutions, depending on the jurisdictional area. The Agents of the Department of Public Prosecutions institute criminal proceedings in the Republic of Panama. All matters pertaining to offences against intellectual property rights are liable to prosecution ex officio, even without a complaint, if the Agent of the Department of Public Prosecutions learns, by any means whatsoever, that a wrongful act of this type has been committed. This is in conformity with the second paragraph of Article 173 of Law 35 of 10 May 1996.

Under the second paragraph of Article 173 of Law 35 of 10 May 1996, criminal proceedings for offences against intellectual property rights are instituted ex officio, for which reason no accusation by a private person (through a lawyer) or complaint (formulated by the person affected) is required. However, a private accusation or complaint does not nullify or hinder the criminal proceeding; it simply is not an essential requirement.

30 days to 18 months' imprisonment (Offences against Copyright and Related Rights, Article 21 of Law 15 of 8 August 1994) Improper use of the title of a work. Changing a work. Publicly communicating a protected work in contempt, by any method or procedure, in the original or in a changed form, either wholly or in part. Using examples of the work, including the distribution of unlawfully reproduced sound recordings. Retransmitting a radio broadcast by any wire or wireless means. Reproducing or distributing, as the assignee or licensee authorized by the respective right holder, a number of copies higher than permitted under the contract; or communicating, reproducing or distributing the work after expiry of the agreed period of authorization. Falsely attributing the original or derived status of holder of any of the rights recognized by law and, by such improper attribution, securing from the competent judicial or administrative authority the suspension of the communication, reproduction or distribution of the work, interpretation or production. Making false declarations of statements of income, the repertoire used in identifying authors, the authorization obtained, the number of copies or any other falsification of data likely to cause injury to any of the lawfully protected right holders. 2 to 4 years' imprisonment (Offences against Copyright and Related Rights) Reproducing, in original or modified form, wholly or in part, lawfully protected works (Article 122 of Law 15 of 18 August 1994). Bringing into Panama, storing, distributing, exporting, selling, renting, or placing in circulation, in any other way, unlawful reproductions of protected works (Article 122 of Law 15 of 8 August 1994). Registering in the Copyright and Related Rights Register, a work, interpretation or production belonging to other persons, as if they were one's own or as being of a person other than the true author, artist or producer (Article 122 of Law 15 of 8 August 1994). Reproducing or copying without authorization, by any means, the performance of a performer, a sound recording or radio broadcast, in whole or in part (Article 123 of Law 15 of 8 August 1994). Bringing into Panama, storing, distributing, exporting, selling, renting, or placing in circulation, in any way, reproductions or copies made without authorization (Article 123 of Law 15 of 8 August 1994). 6 months to one year's imprisonment (Offences against the Rights of Others) Manufacturing, importing or selling, without authorization, a product protected by patent or using the patented process without authorization (Article 382 of the Criminal Code). Using another's legitimate trademark for a product or article not of the other person's manufacture (Article 385 of the Criminal Code). One to three years' imprisonment (Offences against the Rights of Others) A public servant, who to his own advantage or that of another, uses scientific inventions or discoveries or new industrial applications which are known to him on account of his duties and must remain confidential (Article 383 of the Criminal Code) One to two years' imprisonment (Offences against the Rights of Others) Placing on sale or circulating on the national or on foreign markets, agricultural or industrial products with counterfeit or altered names, trademarks or distinguishing signs (Article 384 of the Criminal Code) (b) Monetary fines B 1,000 to B 20,000 For all offences against copyright and related rights, under Articles 121, 122 and 123 of Law 15 of 8 August 1994. A fine of 20 to 150 day units Manufacturing, importing or selling, without authorization, a patent-protected product or using a patented process without authorization. In this case the Criminal Circuit Court may choose between imprisonment of six months to one year or a fine (Article 382 of the Criminal Code). A fine of 50 to 200 day units For offences against rights of others entailing one to three years' imprisonment, under Article 383 of the Criminal Code. The fine is additional to the penalty of imprisonment. A fine of 100 to 200 day units For offences against the rights of others entailing one to two years' imprisonment, under Article 384 of the Criminal Code. The fine is additional to the penalty of imprisonment. A fine of 20 to 100 day units Using someone else's lawful trademark on a product or article that is not of one's manufacture. In this case the Criminal Circuit Court may choose between six months to one year's imprisonment or a fine (Article 385 of the Criminal Code). (c) Other possible fines Article 165 of Law 35 of 10 May 1996 establishes a number of monetary fines for anyone responsible for misuse of industrial property rights, as set forth in Article 164 of the Law, without prejudice to the penalties under the Criminal Code. The further fines are: B 10,000 to B 200,000 (for perpetrators, accomplices or accessories); if it is an undertaking in the Colón Free Zone, the fine will be the equivalent to 25 per cent of the undertaking's monthly turnover and may not be less than B 75,000; suspension of the right to operate an industry for a period of three months; and suspension or cancellation of an operating permit within the Colón Free Zone, for a minimum period of three months. In the event of a recurrence of the infringements, the fine shall be four times the maximum amount and the suspension shall apply for one year. There are no uniform criteria regarding the application of Article 165 of Law 35 of 10 May 1996 in connection with criminal offences, since there are very well substantiated opinions that Articles 164 and 165 of the Law fall within the civil-commercial area of the administration of justice. (d) Seizure, forfeiture and destruction of infringing goods and materials and implements for their production Under Panamanian criminal law, seizure and forfeiture are known under the one term "comiso". It is one of the accessory penalties set out in the Criminal Code. Under Article 5, it is "… loss and adjudication to the State of the instruments whereby the punishable act has been committed and of the results thereof, except those belonging to a third party not responsible for the act". The Article goes on to say that "… The results or instruments seized shall be sold off if they form part of lawful trade and the proceeds shall be used to cover the liabilities of the person penalized; those in unlawful trade shall be broken up or destroyed." With specific reference to industrial property, Article 166 of Law 35 of 10 May 1996 establishes that "… In any case of misuse of industrial property rights, the articles and the machinery used to usurp the property right shall be donated for charitable purposes, free of any tax, by the appropriate body, after eliminating any distinguishing signs". The Article goes on to establish that "… Where it is not possible to remove the distinguishing signs and the right holder does not grant express authorization for them to be donated, such articles shall be destroyed by the competent authority in the presence of a representative of the right holder". (e) Other In the case of a criminal verdict, indemnification of a civil nature may be required. This does not lie within the powers of the criminal courts because it relates to offences of a financial nature, but it is appropriate for the persons affected to request compensation for material and moral damage, with evidence in support of the amount or value of the indemnification.

The general rules of the Constitution and the Judicial Code clearly establish that the administration of justice is continuous and expeditious. Article 2060 of the Judicial Code specifies a period of two months to complete the preliminary investigation stage in a criminal proceeding. Such a period shall be extended to four months if more than two persons are under criminal investigation. When the period specified in the Judicial Code comes to an end, the file shall be transferred as such to the respective criminal court, which shall set the date for the preliminary hearing. The date must be set within 45 days of receipt of the file. After the preliminary hearing has been held and if it is decided to initiate a criminal case and summon persons to appear, evidence shall be requested within the five days following the court's decision and such evidence shall be provided at the full hearing. After the full hearing, the court has a period of not more than 30 days, except for substantiated exceptions on account of the scope of the proceedings, to issue a ruling. All these periods may be affected by requests for security, preliminary issues or action to declare the proceedings void, appeals, and so on. Generally speaking, most of these applications are made by the accused's lawyers and this is part of the defence. Preliminary and full hearings may be delayed because the accused has not been personally notified of the court order establishing the date and time, and as a result he would have to be declared "in default", defence counsel would have to be appointed by the court and notices would have to be published in the press. This is part of respect for everyone's guarantees as an individual. The preliminary investigation stage in a criminal proceeding can be completed efficiently, provided the intellectual property right holders play an active and direct part in collaboration with the Department of Public Prosecutions in furnishing evidence to establish whether the offence or offences have been committed and to determine the criminal link with the accused person or persons. The greatest delay in criminal proceedings consists essentially of incorporating documentary and expert evidence in the file, which almost always has to be supplied by the right holders or their successors. If it is not incorporated, the Agent of the Department of Public Prosecutions must request it abroad, which would make for greatly delayed and inefficient criminal proceedings. Obviously, the administration of justice is a system that lacks human, material and financial resources to cope with the increasing number of claims and complaints. Accordingly, priority must be attached to case files for offences involving some danger (hold-ups, robbery, rape, drugs, etc.) and proceedings in which persons have been deprived of their freedom. Hence the importance of direct and active participation by the intellectual property right holders.