Amendment to Criminal Code introduced

Law 3440/08, which amends certain provisions of the Paraguayan Criminal Code, was promulgated on July 16 2008.
Among other things, the new law amends Article 184 of the code, which concerns the violation of IP rights. Article 184 is now divided into the following three subsections: 
  • Violation of authorial and related rights - this subsection prohibits, among other things: 

    • the unauthorized reproduction of protected works;
    • the unauthorized introduction on the market, possession, distribution, commercialization and lease of protected works;
    • the unauthorized communication of protected works to the public;
    • the unauthorized retransmission of protected works (eg, phonograms, artistic interpretations, translations and arrangements); and
    • the avoidance, modification or transfer of technical security measures without authorization.
  • Violation of trademark rights - under this subsection, it is prohibited to: 

    • falsify, adulterate or imitate a registered trademark;
    • possess, commercialize or circulate trademarked goods without the authorization of the trademark owner; and
    • attempt to violate trademark rights (previously, 'criminal attempt' was not included in the law).
  • Violation of design and industrial rights - under this subsection, it is prohibited to: 

    • manufacture infringing goods or have them manufactured;
    • possess, put on the market, commercialize or circulate protected goods without authorization; and
    • attempt to violate design and industrial rights (which was not previously included in the law).
In addition, the key features of the new law include the following:
  • At present, the penalties for infringement of IP rights are: up to three years' imprisonment and a fine. Under the new law, the court will be able to impose a prison term of up to five years;
  • If the court finds that infringement has occurred, the plaintiff or the Prosecutor’s Office may request that the court order the publication of the decision; and
  • In special circumstances, the court may impose a sentence of up to eight years' imprisonment.

'Special circumstances' are defined as follows:

  • producing or commercializing infringing goods on an industrial scale;
  • producing infringing goods with a high economic value;
  • causing considerable financial damage to the rights owner; and
  • using minors under the age of 18 in the commission of the infringement.
Arguably, these amendments constitute a significant step in the protection of intellectual and industrial property rights in Paraguay. The new law is expected to enter into force in July 2009 (ie, one year after its promulgation).
Mirta Miyasaki, Berkemeyer Attorneys and Counselors, Asuncion

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