The Consumer's Protection Law No 22,240, originally enacted in 1993, has been recently amended by Law No 26,361 (March 2008).

Pursuant to both the previous and current Law, a trade mark owner is liable if his activity falls within the scope of what the law calls a "supplier", or in the case set forth in Section 40 of the Law (joint and several liability of the party providing the trade mark in the case of injuries to consumers).

In a recent judgment related to the topic of trade mark owners' liability, the Court ordered IVESS, the controlling entity of Soda Siphon Manufacturing, the payment of damages – jointly with the manufacturer – for the injuries caused to a consumer resulting from the explosion of two soda siphons. Although IVESS had explained that it did not elaborate, manufacture nor market products, the Court found it liable since the cited Section 40 expressly refers to anyone providing the trade mark to the thing or service, regardless of its condition of manufacturer.

The court determined that in order to be relieved of liability, the trade mark owner shall take all the necessary measures to prevent the improper use of the trade mark by a third party, which could injure the consumer's confidence, or at least properly advertise the termination of the trade mark use authorisation.

It is important to mention that in the amended Law, the concept of "supplier" has been expanded in order to expressly include the case of trade mark use authorisation to a third party.

Given this new scenario, trade mark owners must be especially cautious as judges begin to construe and enforce the amended Law.

Daniel R Zuccherino

Obligado & Cia
Paraguay 610, 17th Floor
C1057AAH, Buenos Aires
Argentina
Tel: +54 11 4114 1100
Fax: +54 11 4311 5675
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