Border seizure law comes into force

Chile

Law 19.912, which prevents the importation into Chile of goods that may infringe rights protected by Industrial Property Law 19.039 and Intellectual Property Law 17.336, has come into force. The law also brings Chilean legislation in line with some of the obligations assumed under the Agreement on Trade-Related Aspects of Intellectual Property Rights and the Free Trade Agreement with the United States (see Congress ratifies trade agreement promoting trademark rights). The new act's main provisions are as follows:

  • Any trademark or copyright owner is entitled to file a petition before the competent civil court to prevent goods suspected of being counterfeit from entering into the country. The same petition can be made before a criminal court, provided, however, that there is a pending criminal trademark or copyright infringement proceeding.

  • The petitioner has to prove that it is the owner of the trademark or copyright, and briefly explain the grounds of the petition. It must also provide evidence to support its suspicion of infringement. In addition, it must include a description of the alleged infringing goods, information about their point of arrival (either by road, rail, air or sea), the place of storage or their destination, the name and address of the importer, and the country of origin.

  • The court can accept the petition outright or require the petitioner to provide reasonable assurance for the protection of the owner of the goods and the importer - in the event that the petitioner's suspicions prove to be incorrect. Once granted, the petition has to be served on the importer, the owner, the petitioner and the customs authorities.

  • The petition is valid for 10 days, counted from the formal service of the notice. To be kept in force thereafter, the petitioner will have to file a formal infringement complaint within the specified period of time. If it fails to do so, the petition will automatically be revoked.

  • Customs authorities always have the right to suspend ex officio the entrance into the country of goods that evidently infringe a registered trademark or copyright. However, they cannot do so with respect to small amounts of goods that may be considered to form part of a traveller's personal luggage.

This law will fill an important gap in Chilean legislation and constitute an effective tool to deter the infringement of copyrights and trademarks - particularly in sectors traditionally plagued with infringements, such as sport accessories, cigarettes, watches, electronic devices, CDs and DVDs.

José M Gana, Sargent & Krahn, Santiago

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