Importer guilty even though infringing goods were not sold in Chile

The Criminal Court of Iquique has found that Sociedad Importadora Mi Casa SA, the importer of containers of toothpaste bearing the trademark COOLMATE TOTAL 12, was guilty of infringing the registered trademark COLGATE TOTAL 12 (Case 0610017199-4, July 11 2007).

Sociedad Importadora brought into the Chilean free port of Iquique approximately 200,000 containers of toothpaste. The goods had not been distributed to Chilean consumers and were allegedly bound for a neighbouring country. The importer declared the goods to the customs authorities as 'glue'.

The importer was sued by:

• the public prosecutor;
  
  
• the customs authorities for smuggling;
  
  
• the Tax Revenue Service for unlawful commerce affecting the fiscal interest of the state; and
  
  
• the owner of the infringed trademark, Colgate Palmolive Company, for trademark infringement and misuse of its name.

In its defence, the importer claimed that the infringing goods had not been sold in Chile and were intended for another country.

The court found the importer guilty of trademark infringement, misuse of name, smuggling and unlawful commerce. It found that although the goods had not been sold in Chile, they had been introduced into the national territory with the purpose of selling them in Chile or other countries.

The decision is significant in that it:

• defines the type of acts that can be viewed as the commercialization of illegal goods;
  
  
• recognizes that the importer's illegal acts constituted a group of offences; and
  
  
• states that unlawful commerce, as defined in the decision, contravenes the fiscal interest of the state, as protected by the Tax Revenue Service.

Sociedad Importadora has appealed the decision.

Sergio Amenábar V, Estudio Federico Villaseca, Santiago