Specify the (courts) administrative offices which have jurisdiction over IPR infringement cases.
The administrative authorities are:
- The Ministry of Industry and Trade through the Directorate General for Intellectual Property;
- the Ministry of Agriculture, Seed Certification Department of the Directorate General of the National Agricultural Health Service (SENASA);
- the Executive Revenue Directorate (DEI);
- the State Prosecution Service;
- the Ministry of Security;
The applicable provisions are Article 156 of the Law on Copyright, Articles 158 to 173 of the Industrial Property Law and Article 45 of the Law on New Plant Varieties.
9.2 Which persons have standing to assert IPRs? How may they be represented? Are there requirements for mandatory personal appearances before (the court) an administrative office by the right holder.
Which persons have standing to assert IPRs?
Natural and legal persons with a legitimate interest may apply to the competent authorities.
How may they be represented?
Through their legal representative or authorized agent.
Are there requirements for mandatory personal appearances before (the court) an administrative office by the right holder?
There is no mandatory requirement for the right holder to appear in person before the court, as this can be done by his/her legal representative or agent.
Articles 54 to 56 and 59 of the Law on Administrative Procedure are applicable.
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?
The competent authorities may require the parties and third parties to produce evidence which lies within their control, provided that such evidence serves to clarify the matter at issue.
When the injured right holder or the alleged infringer denies access to evidence or does not produce relevant evidence under his/her control within a reasonable period, or substantially impedes the proceeding.
Articles 69 and 72 of the Law on Administrative Procedure are applicable.
9.4 What means exist to identify and protect confidential information brought forward as evidence?
In any judicial or administrative proceedings where an interested party is required to reveal a secret, the authority dealing with the case shall adopt the necessary measures to prevent its disclosure to third parties unconcerned by the dispute.
Articles 69 and 150 of the Law on Administrative Procedure are applicable.
9.5 Describe the remedies that may be ordered by the judicial authorities and criteria, legislative or jurisprudential, for their use:
- damages, including recovery of profits, and expenses, including attorney's fees;
- destruction or other disposal of infringing goods and materials/implements for their production;
- any other remedies.
Administrative injunctions take the form of decrees, decisions, resolutions and rulings.
Administrative injunctions concerning the violation of any of the rights protected by the intellectual property laws may:
- Order the withdrawal from circulation of infringing goods;
- prohibit, with immediate effect, the marketing of products serving to violate any of the rights protected (seizure, attachment, deposit);
- order the confiscation of goods;
- order suspension of service provision or closure of the establishment.
The applicable provisions are Article 13 of the Law on Administrative Procedure and Articles 116 to 118 of the General Law on Public Administration.
Damages, including recovery of profits, and expenses, including attorney's fees
Anyone injured by a violation of intellectual property rights may claim damages and compensation for material injury from the person or persons responsible for the violation.
If the seized goods are insufficient to cover the amount stipulated, the measure may be extended to other goods and the costs shall be borne by the obligor in accordance with the procedure.
The applicable provisions are Article 102 of the Code of Administrative Procedure, Article 47 of the Law on New Plant Varieties, Article 175 of the Law on Copyright and Articles 159, 164 and 165 of the Industrial Property Law.
Destruction or other disposal of infringing goods and materials/implements for their production
Where such material exists, it shall be handed over to the judicial authorities for use as evidence, and the competent authority may order its destruction in a final decision.
Article 163, subparagraphs 3 and 7, of the Industrial Property Law is applicable.
Any other remedies
Fines, closure of establishments and seizure of goods.
The applicable provisions are Article 110 of the Code of Administrative Procedure, Articles 156 and 157 of the Law on Copyright and Article 167 of the Industrial Property Law.
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 administrative authorities have no authority to order the infringer to provide information about the identity of third persons involved in the production of infringing goods or services, except through judicial organs.
The administrative authorities may order the suspension of service provision or closure of the establishment if the measures specified in the previous reply are not sufficient to forestall or prevent violation of the rights protected by the industrial property laws.
Articles 338, 340 and 343 of the Code of Civil Procedure and Articles 22 to 235 of the Code of Criminal Procedure are applicable.
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?
The administrative authorities are responsible for the measures ordered.
Article 124 of the Law on Public Administration is applicable.
See the reply to question 7 above.
9.8 Describe provisions governing the length and cost of proceedings. Provide any available data on the actual duration of proceedings and their cost.
The duration and cost of proceedings vary according to the complexity of the case concerned.