In keeping with the classification of infringing conduct set forth in Articles 274 and 275 of the Criminal Code, infringements affecting all intellectual property rights recognized under the relevant laws are subject to the prescribed criminal procedures and penalties.
Article 274 of the Criminal Code determines the following types of conduct as offences against copyright and related rights:
(a) The false attribution of the status of author and/or copyright holder, performer, phonographic producer or a broadcasting entity;
(b) the deformation, mutilation, modification or any action that causes injury to the integrity of the work or to the honour and reputation of the author;
(c) the reproduction of any work, interpretation or performance, phonogram or broadcast, without the authorization of the author or relevant right holder;
(d) the adaptation, arrangement or transformation of a protected work or part thereof, without the authorization of the author or the right holder;
(e) the communication to the public by any means or procedure of a protected work or a phonogram, without the authorization of the relevant right holder;
(f) the distribution of unauthorized reproductions, total or partial, of a protected work or a phonogram, whether by means of sale, rental, lease, rental with the option to buy, loan or in any other form;
(g) the sound fixing, reproduction or communication to the public, by any means or procedure, of an artistic performance without the authorization of the performer or the right holder;
(h) the sound fixing, reproduction or retransmission of a broadcast, transmitted by satellite, broadcasting or by wire, cable, fibre optics or any other procedure, without the authorization of the owner;
(i) the communication to the public of a broadcast or transmission in a place to which the public can gain access by the payment of an admission fee, or otherwise, for the purposes of consuming or purchasing products or services without the authorization of the relevant right holder;
(j) the publication of a protected work with the title changed or removed, with or without being altered;
(k) the decodification of programme-carrying signals of any kind transmitted by satellite or any other means of telecommunication, without the authorization of the legitimate distributor;
(l) any act that circumvents or attempts to circumvent a technological measure implemented by the author or the holder of the relative right or the holder of a related right to avoid the unauthorized use of any kind of work, phonogram, artistic performance or a broadcast;
(m) any act that induces, permits, facilitates or conceals an infringement of any of the exclusive rights pertaining to the authors, copyright holders, performers, phonogram producers or broadcasting organizations;
(n) the unauthorized removal or alteration of any electronic information concerning the collective management of copyright or related rights;
(o) the unauthorized distribution, marketing, promotion, importation, broadcasting or communication to the public of works, artistic performances, phonographic productions or broadcasts, in the knowledge that the electronic information concerning the collective management of any of those rights has been removed or altered without authorization;
(p) the transportation, storage or concealment of reproductions or copies, in any physical medium, of protected works, phonograms, artistic performances or broadcasts, made without the consent of the author or relevant right holder concerned;
(q) the collection of financial benefits for the use of protected works, artistic performances, phonograms or broadcasts belonging to broadcasting organizations, or engaging in any other activities proper to a collective management company, without being authorized to do so;
(r) the publication of an unpublished work without the consent of the author or relevant right holder;
(s) the full or partial translation of a work without the authorization of the author or relevant right holder;
(t) the unauthorized distribution of original or legitimate reproductions of a protected work or a phonogram, whether by means of sale, rental, rental with the option to buy, loan or in any other way; and
(u) the importation or exportation of the original or reproductions of any protected work for their commercial exploitation, in any type of medium, or of phonograms, without the authorization of the relevant right holder.
As regards industrial property, Article 275 of the Criminal Code establishes that the following types of conduct are offences against those rights:
(a) Introducing into commerce, selling, putting up for sale, storing or distributing products or services covered by a registered distinctive sign or by an imitation or counterfeit thereof in connection with products or services identical or similar to those protected by the registration;
(b) using in commerce a protected trade name, advertising emblem or slogan or sign;
(c) introducing into commerce, selling, putting up for sale, storing or distributing products or services covered by a registered distinctive sign, after having totally or partially altered, replaced or removed it;
(d) using, putting up for sale, storing or distributing products or services that carry a registered mark that is similar enough to be confused with another registered mark, after a decision has been issued ordering cessation of the use of that mark;
(e) manufacturing labels, containers, wrappings, packaging or other similar materials that reproduce or contain the registered sign or an imitation or counterfeit thereof, as well as marketing, storing or possessing such materials;
(f) refilling or re-using for any purpose, containers, wrappings or packaging bearing a registered distinctive sign;
(g) using in commerce any labels, wrappings, containers and other means of packaging or packing of products or of identifying the services of a trader, or copies, imitations or reproductions thereof that could prove misleading or create confusion as to the origin of the products or services;
(h) using or exploiting another person's business secret, as well as any act of marketing, disclosure or improper acquisition of such secrets;
(i) revealing to a third party a business secret obtained through one's work, position, post, profession, business relationship or by virtue of a licence of use, after having been advised of the confidential nature of that information;
(j) procuring a business secret, by any means, without the permission of the person who keeps it or of its authorized user;
(k) manufacturing, processing, marketing, putting up for sale, placing in circulation, storing or possessing products covered by a patent belonging to another person;
(l) using a procedure covered by a patent belonging to another person or engaging in any of the actions set out in the preceding subparagraph, in connection with a product obtained directly by that procedure;
(m) manufacturing, processing, marketing, putting up for sale, placing in circulation, storing or possessing products which in themselves or in their presentation reproduce a protected industrial design;
(n) in connection with a product or service, using in commerce, a false geographical indication or one that could mislead the public as to the origin of that product or service or the identity of the product, the manufacturer or the trader who distributes it; and
(o) in connection with a product, using in commerce, a false or misleading appellation of origin, even when the true origin of the product is indicated, a translation of the appellation is used, or is used in conjunction with expressions such as "type", "kind", "manner", "imitation" and the like.
Articles 274 and 275 of the Criminal Code prescribe one to four years' imprisonment for persons committing offences against various intellectual property rights and, moreover, specify monetary penalties in the form of a fine to be set by the court, ranging from a minimum of 1,000 quetzales to a maximum of 500,000 quetzales.
Furthermore, Article 358 of the Criminal Code states the following: "anyone perpetrating an act described as one of unfair competition, shall, pursuant to the provisions in that regard set forth in the Industrial Property Law, incur a fine of 50,00 to 100,000 quetzales, except where the act is one of the industrial property right infringements classified under Article 275 of this Code."
In both cases, in criminal proceedings, in addition to the penalties already indicated, the aforementioned provisions of Article 185 of the Industrial Property Law and 134bis of the Law on Copyright and Related Rights apply. These Articles provide, without distinction as to the right protected, for the possibility of the judgement ordering the confiscation, seizure or destruction of the infringing goods and any materials or accessories predominantly used for committing the offence.
