The battle against trade mark piracy in Argentina is being fought on two major fronts: 1) the marketing of counterfeit merchandise in fairs that do not comply with legal formalities, and 2) the import of counterfeit products through the borders.
It is very difficult to carry out legal actions – especially preliminary injunctions – against those who market counterfeit merchandise in informal fairs for several reasons, including the aggressiveness of the persons occupying such premises with their illegal sale stands.
One alternative could be to analyse the possible judicial application of the so-called landlord liability doctrine, whereby, upon notice to the owner of the premises, legal actions can be carried out against such owner.
According to Law Nº 25,986 (Article 46), enacted in 2004, Customs agents are empowered to determine actual or potential infringements to IP rights, and may block the entry of any goods into the country. The legislation sets out that merchandise may be stopped at Customs while the authorities conduct investigations to determine potential infringements.
Complementing such law, the Argentine Customs Authority issued Resolution Nº 2216/07, whereby a new Registry of Intellectual Property Rights, or warning registry, was created within Customs. The purpose of the resolution is to provide tools for trade mark and copyright owners against the circulation of counterfeits.
The warning registry discourages trade mark fraud, as it simplifies the detection and detention of counterfeit products at Argentina's borders, before any such goods can leave Customs and be distributed throughout the country's territory.
In conclusion, it is pertinent to note the importance of the Customs' current role and the proper operation of its warning registry in the battle against piracy, wherein trade mark owners are always at a disadvantage.
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| Daniel R Zuccherino |
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