Since it is not a historical tradition, nor is it popular knowledge, as are other areas of law with classic tendencies, the intellectual property area, specifically regarding trademarks and other distinctive signs, still finds itself in early stages of spreading and development within the population in general, even within legal professionals. As a result of this shortage, duly registered rights holders are generally lack of the professional means or basic knowledge of the prerogatives granted by law in terms of the preponderance and exclusivity enjoyed by the registration of their originality.
Law No. 380, together with its incorporated reforms, is the normative body applicable to Nicaraguan territory for the purposes of the subject inside this article. Said compendium establishes that the owner of a trademark may prevent third parties without prior consent or authorization from using signs or trademarks that do not have sufficient differences or that are completely identical with the owner’s, within the scope of their commercial operations, having the possibility of exercising legal actions in civil or criminal courts. Prior to the legal actions, it is advisable to hold friendly written conversations with the offender in order to invite him to depose the unauthorized use of the duly registered trademark sign, engage in a surcease of use agreement and avoid entering the court.
Within our practice, we have even agreed to the granting of licenses between the owner and the one that was once an infringer, since this would mean an economic benefit for both and, a control of guarantee and quality on the part of the transferor to the transferee, proliferating in this way, the presence of the brand or distinctive sign in the region or in our country. In case of failure to reach fruitful agreements prior to the courts, there are mechanisms that would facilitate compensation for the economic damage caused by the offender, which can be requested before the civil judge, without prejudice to the criminal sanctions applicable to both natural persons and companies.
I do not omit to state, that exclusivity, as well as any other right, ends where the rights of others begin, and it is the same law that provides the limitations to the duly registered proprietor. The registration of a trademark does not give its holder the right to prohibit a third party from using its trademark when it has entered the country through the holder itself or through a natural person or company economically linked to it, in other words, may not be urged against someone who performs resale operations, given that they are mere trade activities and not intends to prove either proclaim distinctiveness within the consumer and / or producer market.
As we could see the exclusivity in the law N ° 380 gives eye-catching and pleasant prerogatives for those who hold ownership over a registered right, without prejudice to their limitations or interpretations that may be provided through law.
Senior Associate
García & Bodán
Nicaragua