Antipiracy Actions through Border Measures in El Salvador
The Salvadoran legislation contemplates the “Border Measures”, as a mechanism to counteract the falsification of merchandise and other infringements to intellectual property rights. The objective of these actions, that precedes the start of judicial processes, both civil and penal, is to get the suspension of imports, exports and/or to stop the transit of the merchandise that allegedly falsifies original brands, or constitutes an object of infringement to the intellectual property rights of third parties.
As in other jurisdictions, these actions have the characteristics of a precautionary measure, with the purpose of:
- Suspending acts that injure the commerce and affects the rights acquired by third parties,
- Collecting evidence that could serve to sustain judicially the existent infringement; and
- Having parameters of the scope of the infringement for the estimation of the damages.
All these situations are fundamental when exercising the intellectual property rights, where the obtainment of evidence is primordial.
The Trademarks Law in El Salvador, in its article 96, establishes that the mentioned actions may start “ex officio,… without requiring the formal request from the right holder or from a particular”. This is also developed in the article 3 literally C) from the “Administrative Disposition of General Character DACG No. DGA 007.202”, issued by the General Directorate of Customs of our country.
Since its implementation, these measures have passed by several difficulties in order to succeed in the practice, for several factors: the workload in customs, the lack of a trademark registry in said instance and the lack of technical training to detect that it is in presence of allegedly falsified goods, among other reasons. Despite the above, recently there has been cases where the actions in the border had finish successfully, within the scope of the Criminal Law, against the piracy of footwear.
In these recent cases, a good coordination has been seen between the involved institutions: General Prosecutor of the Republic, Office of Customs and Courts, that with the impulse and technical support from the interested part, it has gotten an agile development of the measures, as a preamble for the start of the judicial processes against the different infringements. If this continues, without any doubt it will have a direct incident in the reduction of the piracy ratings, smuggling and disrespect of intellectual property rights at national level.
El Salvador may be a good place at the moment of monitoring the imports of this type of merchandise, having all the alerts and mechanisms to proceed, previous its arrival. We have seen recently penal actions based on tridimensional trademarks, which haven’t been seen time ago, that ended with the destruction of more than 50,000 pairs of shoes that infringed the intellectual property rights of a prestigious company, besides the economic compensation of the affected part and the appropriate measures imposed by the courts, that were able to stop the continuity of the infringement.
Our country inclusive may be a good coordination point of similar actions, through the entire Central American region, as it has been proven with the aforementioned recent cases.
Julio Vargas Solano
Managing Partner
García & Bodán
El Salvador