In conformity with Article 530 of the Code of Civil and Commercial Procedure, which is residually applicable, whoever has good reason to fear that during the time necessary to enforce his right that right will be threatened by imminent and irreparable damage may request the court in writing to grant such urgent measures as would appear, according to the circumstances, to be most appropriate in order provisionally to ensure the effectiveness of the decision on the merits. This provision is also included in the first paragraph of Article 186 of the Industrial Property Law and in Article 133bis of the Law on Copyright and Related Rights.
Under the Guatemalan legislation, anyone initiating or intending to initiate an action relating to industrial property rights or acts of unfair competition may request the court to order protective measures. The court, provided it has been given proof of the ownership of the right infringed and evidence indicating a reasonable presumption of infringement or the imminence thereof, has the authority to order forthwith the measures requested within a period of not more than two days from the presentation of the application and, if it deems it advisable, can in the same ruling require that prior to the execution of such measures the applicant shall provide security or other assurance sufficient to protect the party affected by the measure and the authorities themselves and also to prevent abuse. In the latter case, the measure must be executed within 48 hours of security being given (Articles 186 of the Industrial Property Law and 133ter of the Law on Copyright and Related Rights).
When a protective measure is ordered before the main action is initiated, it will automatically lapse if the person obtaining it does not file a complaint within 15 days of the date on which it was executed (Articles 186 of the Industrial Property Law and 133ter of the Law on Copyright and Related Rights).
Among the measures that may be ordered to prevent an infringement, prevent infringing goods from entering channels of commerce or preserve evidence relating to an alleged infringement, Articles 187 of the Industrial Property Law and Article 133bis of the Law on Copyright and Related Rights stipulate that the judicial authorities may order:
- An immediate halt to the use, application, disposal and marketing of the infringing products and the unfair acts;
- an immediate halt to the infringement alleged by the right holder;
- seizure of the infringing products, including containers, packets, packaging, labels, printed or advertising materials, machinery or other materials connected with the infringement or used to commit it, and of the means principally used to carry out the infringement;
- prohibition of the importation of the aforementioned products, materials or means;
- confiscation and removal to court warehouses of the aforementioned products, materials or means;
- suspension or cancellation of registrations or sanitary licences or licences of any other kind necessary for the admission, distribution, sale or marketing of the infringing products;
- judicial inspection of places, documents or objects that have a bearing on the right infringed; and
- any other measure necessary to prevent the continuation or repetition of the infringement or acts of unfair competition.
The last paragraph of the above-mentioned Article 187 of the Industrial Property Law makes it clear that mere removal of the marks illegally used or affixed will not prevent the protective measures ordered from remaining in force and neither will it be sufficient for the goods or products to enter the channels of commerce.
It is important to note, that under Article 188 of the Industrial Property Law and Article 133 quater of the Law on Copyright and Related Rights, once a protective measure or order has been granted to ensure the results of a proceeding regarding a claim for restoration in a civil or commercial action, it cannot be deprived of its effect by means of a bond or security, which may only be lodged so as to lift measures to ensure a claim for compensation.
Again, in accordance with Article 189 of the Industrial Property Law, the petition for protective measures or the complaint itself may contain a request for a judicial inspection of places, documents or objects that have a bearing on the right infringed, or where it is alleged that acts leading to the infringement of industrial property rights or acts of unfair competition are being committed or prepared, in which case the court will order and execute it without requiring any security. In order to follow this up, according to the above-mentioned provision, the ruling ordering a judicial inspection will implicitly include the use of a search warrant.
Such judicial examination may be supplemented by the presence of experts designated by the applicant or by the court itself; likewise, the court may order that movables or documents be produced. On application by a party and at the court's discretion, scientific methods of obtaining evidence may also be used, photographs taken or audiovisual recordings made of the objects or places inspected, while documents may be examined and copied by any means.
In connection with the judicial inspection the court may order the protective measures that have been requested and, where appropriate, establish the amount of the corresponding guarantee, in accordance with the provisions of the above-mentioned Article 186 of the Law. If, within the next five days, the applicant has not provided or constituted the security fixed, the court will order the lifting of the measures decreed.
