To ensure the enforcement of intellectual property rights, both the Industrial Property Law and the Law on Copyright and Related Rights provide for the holder of the corresponding rights to initiate legal proceedings, whether civil or criminal, in order to protect his rights against infringement or prevent infringements from being committed or avoid their consequences. There is no provision for such remedies under administrative procedures. These civil proceedings follow the trial procedure laid down in the Code of Civil and Commercial Procedure (Articles 182 of the Industrial Property Law and 133 of the Law on Copyright and Related Rights), without prejudice to the possibility of the parties involved resorting to alternative means of dispute settlement, such as conciliation and arbitration which are governed by a special law. In the case of criminal proceedings, it is for the public prosecutor to prosecute those responsible, although the right holder or licensee may initiate the prosecution by filing a complaint for violation of his rights or by joining proceedings initiated ex officio (Articles 206 of the Industrial Property Law and Article 128 of the Law on Copyright and Related Rights). There is also provision for applying, including before the initiation of any of the above-mentioned actions, provisional or precautionary measures to protect rights, prevent infringements or obtain and preserve evidence (Articles 186 and 207 of the Industrial Property Law and 128bis and 133bis of the Law on Copyright and Related Rights). In addition there is the possibility of requesting border measures to obtain an order suspending the importation or exportation of goods that impair or infringe the rights of a trademark proprietor or copyright or neighbouring right holder (Articles 190 of the Industrial Property Law and 129 of the Law on Copyright and Related Rights). and preserve evidence (Articles 186 and 207 of the Industrial Property Law and 128bis and 133bis of the Law on Copyright and Related Rights). In addition there is the possibility of requesting border measures to obtain an order suspending the importation or exportation of goods that impair or infringe the rights of a trademark proprietor or copyright or neighbouring right holder (Articles 190 of the Industrial Property Law and 129 of the Law on Copyright and Related Rights).

In accordance with the relevant provisions of the Code of Civil and Commercial Procedure and the Code of Criminal Procedure, an appeal, which is heard by the higher court, may be made against any judgement pronounced in any proceeding conducted in accordance with these Codes.

Neither the Industrial Property Law nor the Law on Copyright and Related Rights contains such provisions. However, Article 182 of the Code of Civil and Commercial Procedure, which applies residually, does provide for this authority, although limited to documentary evidence. This Article stipulates that when one of the parties to a proceeding needs to use a document which, it alleges, lies in the control of the opposing party, it must produce a copy thereof or, at least, all the information available to it concerning its contents and, moreover, prove that the document is or was in the possession of the opposing party. According to the same provision, in these circumstances the court may order that the opposing party be warned to hand over the document within the time-limit fixed by the court itself and if it does not hand over the document or produce contrary information, the court may decide to accept the text of the document provided by the party requesting disclosure or declare that the information supplied concerning its content is to be considered accurate for the purposes of the proceedings. If the evidence concerning the existence of the document in the control of the opposing party is contradictory, the court will reserve the aforementioned ruling for the definitive judgement, on which occasion it will, in its wisdom, draw the appropriate conclusions from the statements of the parties and the evidence submitted. There are various provisions in the Guatemalan legislation for the protection of confidential information. In principle, while fundamentally guaranteeing that administrative acts, like judicial proceedings, will be public, the Constitution provides, as an exception, for the case in which someone may have supplied data under a guarantee of confidentiality. In Article 194 of the Industrial Property Law there is an express reference to the obligation to protect confidential information, where the judicial authorities, having ordered a border measure, authorized the person granted the measure free access to the goods or products detained in order that he may inspect them and obtain further evidence in support of his claim. Likewise, Article 199 of the Industrial Property Law, which enunciates the principle of reversal or the burden of proof in cases of claims for infringements of a patent-protected process, recognizes that in the submission of any evidence to the contrary, account must be taken of the legitimate interest of the defendant regarding protection of his trade secrets, although this does not relief him of the burden of proving that he uses a process different from the one protected by patent. Again, Article 129 of the Code of Civil and Commercial Procedure sets out the general rule that evidence can be submitted confidentially when, on account of the nature of the evidence, the judicial authority deems it appropriate. Finally, Article 63 of the Judicial Organization Law, while enunciating the principle that acts and proceedings of the courts of the Republic are public, admits as exceptions to that principle cases where, by legal order or on grounds of public morality or security, they must be kept confidential. Thus, this provision authorizes the court to declare, in very special cases and under strict responsibility, acts or proceedings confidential.

In accordance with Article 185 of the Industrial Property Law and Article 134bis of the Law on Copyright and Related Rights, in ruling that any of the actions for the protection of intellectual property rights is applicable, the judicial authorities must, in addition to determining the merits, depending on the case and in the light of the need of proportionality between the seriousness of the infringement, the remedies ordered and the interests of third parties, order the cessation of the infringing acts or acts of unfair competition and the adoption of the measures necessary to prevent their consequences and avoid a repetition thereof, as well as the award of damages. According to express provisions of both laws, in both civil and criminal actions the courts may also order, as a precaution, an immediate halt to the use, application and marketing of the infringing products and any measure necessary to avoid the continuation or repetition of the infringement.

Article 1645 of the Civil Code establishes the general rule that anyone causing harm or prejudice to another, whether intentionally or by neglect or carelessness is required to make good the act, except where it can be demonstrated that the harm or prejudice was a result of inexcusable negligence or fault on the part of the victim. The Judicial Organization Law also includes a general provision establishing that, in the event of an award of damages, the ruling shall specify the net amount. The provision adds that, if this is not possible, the ruling shall establish at least, in accordance with what has been requested, the basis for determining the assessment of the points at issue or for the fixing of the amount by experts. The Industrial Property Law establishes, in Article 185(e), that in a judgement declaring any of the actions provided for in the Law applicable the court must rule on the award of damages. A similar rule is set out in Article 134bis(d) of the Law on Copyright and Related Rights.

As to the matter of attorneys' fees, Article 572 of the Code of Civil and Commercial Procedure sets out the general rule that each party to the proceeding is directly responsible for the costs incurred for the acts carried out and requested by it. However, the rule also establishes that in the event of an order to pay costs, the losing party shall compensate the other for all the necessary costs it has caused. Indeed, Article 573 of the same Code sets out the general requirement that the Court, in the ruling concluding the proceeding, must sentence the losing party to payment of costs in favour of the other party. This requirement to pay costs entails exceptions in instances where judicial action has obviously been taken in good faith, where the claim or counterclaim involves exaggerated pretensions, where the judgement takes account solely of part of the fundamental pretensions of the claim or counterclaim, where defences of importance invoked by the losing party are admitted, where neither party wins or where the defendant accepts the claim. Furthermore, Article 578 of the Code of Civil and Commercial Procedures specifies the following as being part of the reimbursable costs: the fees of the chief attorney, notaries, attorneys, experts, depositaries and administrators; as well as costs incurred for seizures, injunctions, orders, publications, certifications, inventories, entries in registers and compensation of witnesses for their time and travel costs. This rule makes it clear that judicial orders shall not entail personal costs other than travel expenses, payments for vehicles, transport and communications and purchases of substances or other articles necessary to ascertain a fact.

The disposal of the infringing goods outside the channels of commerce may be ordered definitively (in the ruling that closes the proceeding) and/or provisionally. Article 185(a) of the Industrial Property Law stipulates that in a judgement declaring any of the actions provided for in the Law applicable, the Court must, as appropriate, order that the infringing goods be disposed of outside the channels of commerce or destroyed, principally when they affect or may affect human or animal or plant life or health or the environment. Similarly, Article 185(b) of the Industrial Property Law stipulates that, in the judgement, the court must also, where appropriate, order that materials/implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort for the owner, disposed of outside the channels of commerce or destroyed as articles of unlawful trade, in such a manner as to minimize the risks of further infringements. Moreover, Article 187(e) of the Industrial Property Law specifies that, among the measures designed to protect the rights of the plaintiff or petitioner, the court may order the immediate cessation of marketing of the infringing products, together with the seizure and removal to court warehouses of the infringing products and the materials used to commit the infringement, including their destruction where they are causing harm or constitute a risk to human, animal or plant life or health or to the environment.

Under Article 537 of the Code of Civil and Commercial Procedure, whoever obtains a protective measure or order will be obliged to pay the other party costs and damages in any of the following circumstances: - If the application is not made within the legal time-limit (15 days); - if the order is revoked; or - if the application is declared to be inadmissible. The Industrial Property Law (Article 195) and the Law on Copyright and Related Rights (Article 132) contains similar provisions for determining the liability of those who request border measures with respect to the importer, the consignee and the owner of the goods detained. In order to ensure that these provisions are effective, Article 186 of the Industrial Property Law and Article 133bis of the Law on Copyright and Related Rights stipulate that in the event of any application for a protective measure or order, the court may, if it deems it appropriate, include in the ruling in which such measures are decreed a requirement, that prior to their application, sufficient security or other assurance should be provided to prevent abuse and to protect the party affected by the measure and the authorities themselves against any damage or injury to which the measures might give rise. These provisions are applicable to border measures (Articles 191 of the Industrial Property Law and 130 of the Law on Copyright and Related Rights). The authorities who order a measure will be exempt from liability if they acted in good faith.

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.

According to Articles 190 and 191 of the Industrial Property Law, in cases of infringement of the rights of a trademark holder border measures must be requested from the judicial authority, and more specifically the court of first instance with jurisdiction over the territory in which the corresponding custom office is located. Under Articles 129 and 130 of the Law on Copyright and Related Rights, the right holder concerned may request the border measure from the judicial authority or directly from the customs authority, which can order the suspension of the importation or exportation in question for a period of not more than ten working days.

Both the Industrial Property Law and the Law on Copyright and Related Rights allow the holders of a registered trademark or a protected work or phonogram, or their licensees, to request the suspension of customs clearance and release of the goods or the export process, but only in the case of pirated goods may the suspension of clearance be requested directly from the customs authorities (Articles 190 and 191 of the Industrial Property Law and Article 129 of the Law on Copyright and Related Rights). In both cases, the procedure applicable is the same as that laid down in the two laws for requesting precautionary measures or orders, to which reference was made in the response to question 54.

Article 185(a) of the Industrial Property Law states that where the judgement declares any of the actions provided for in the Law to be applicable, the court shall, where appropriate, order that the infringing goods be destroyed as articles of unlawful trade, principally when they affect or may affect human, animal or plant life or health or may cause serious harm to the environment. Similarly, Article 185(b) of the Industrial Property Law stipulates that, in the judgement, the court shall also, where appropriate, order that the material/implements the predominate use of which has been in the creation of the infringing goods be, without compensation of any sort for the owner, disposed of outside the channels of commerce or destroyed as articles of unlawful trade, as a means of minimizing the risk of further infringements. As a precautionary measure, the Law provides for the possibility of the infringing products and materials and means used for producing them being confiscated and removed to court warehouses; or being destroyed if they are causing harm or constitute a risk to human, animal or plant life or health or to the environment (Article 187(b), (d), (e) of the Industrial Property Law). In similar terms, the Law on Copyright and Related Rights establishes in Article 134bis that, in a judgement declaring any of the actions provided for in the Law applicable, the court shall, in addition to determining the merits, order that the infringing goods be destroyed as articles of unlawful trade. Article 133bis of the same Law also establishes that the court may order as a protective measure any measure necessary to avoid the continuation or repetition of the infringement, including seizure of the infringing products and the materials and means for producing them, together with their destruction if they are causing harm or constitute a risk to human, animal or plant life or health or to the environment.

Under Article 190 of the Industrial Property Law, non-commercial articles imported as part of travellers' personal effects may not be suspended.

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.

Under the legislation currently in force Grenada is operating a patent re-registration system for patents registered in the United Kingdom under the Registration of UK Patents Act (Cap. 283) and does not itself grant patents for the territory of Grenada. The Registrar does have the authority to refuse the re-registration of a UK patent if its grant or its use would be scandalous or contrary to law or morality under the Patent Act (Cap 227). The draft Industrial Property Bill 2002 which had been prepared with the assistance of WIPO was notified to the WTO as IP/N/1/GRD/I/3 on 13 June 2002, and contained provisions for patentability and exclusions from patentability, and provided for exceptions. This draft did not pass into law. The present draft Patents Act (due to be tabled in 2010) contains provisions on patentability and exceptions in Section 2 which deals with matters excluded from patent protection and and Section 3 which gives the patentability criteria (Part II of the said Act).

The draft Industrial Property Bill 2002 which had been prepared with the assistance of WIPO was notified to the WTO as IP/N/1/GRD/I/3 on 13 June 2002, and contained provisions on the rights of the patentee. This draft did not pass into law. The present draft Patents Act (due to be tabled in 2010) contains provisions on the right of importation in Section 11(1) & 11(2).

The draft Industrial Property Bill 2002 which had been prepared with the assistance of WIPO was notified to the WTO as IP/N/1/GRD/I/3 on 13 June 2002, contained provisions on compulsory licenses. This draft did not pass into law. The present draft Patents Act (due to be tabled in 2010) contains provision on compulsory licenses in Section 13 (Part II of the said Act).

The draft Industrial Property Bill 2002 which had been prepared with the assistance of WIPO was notified to the WTO as IP/N/1/GRD/I/3 on 13 June 2002, and contained provisions on process patents. This draft did not pass into law. The present draft Patents Act (due to be tabled this year) contains provisions for the principle of the reversal of burden of proof on process patent litigation in Section 21.

The Grenada Pharmacy Council, operating under Cap 241, recognizes marketing approval from the regulatory authorities in the United States and the United Kingdom and does not itself require test data submission for marketing approval for pharmaceuticals or chemical entities. There is therefore no provision in the current law pertaining specifically to the protection of test data for pharmaceuticals or chemical entities. There is no general protetction for undisclosed information in the draft acts mentioned above.

There is no provision in the legislation currently in force that specifically addresses the protection of micro-organisms, non-essentially biological processes, microbiological processes and plant varieties. However, the present draft Plant Variety Act (due to be tabled in 2010) addresses the protection of plant varieties in Sections 5 to 9 (Part II).