New border measures now in force

Decree 4540 of 2006, which implements a number of customs border measures to protect intellectual property, came into force in Colombia on January 26 2007. The measures have been introduced as part of Colombia's obligations under various multilateral agreements, particularly the Agreement on Trade-Related Aspects of Intellectual Property Rights.

The decree empowers the Colombian customs authority, known as the National Direction of Taxes and Customs (DIAN) to suspend provisionally the import, export or transit of supposedly counterfeit merchandise while the competent authority decides as to whether the products are indeed counterfeit.

IP rights owners can initiate the new procedure with a petition to DIAN, requesting the provisional suspension of the import, export or transit of goods which the IP rights owner suspects of infringing its rights. Parallel to this, the IP rights owner must file a criminal complaint or a civil action for infringement to the relevant authority.

The petition for provisional suspension must be filed by the owner of the right or by its legal representative. Among other things, the petition must contain:

• the name of the owner of the IP right, including its company name and the address of the authorized user of the IP right in Colombia;
  
  
• documentary proof of the IP right itself (ie, a certificate of registration, in the case of a trademark); and
  
  
• a detailed description of the genuine product covered by the IP right at issue and its place of manufacture.
  

The DIAN will admit or reject a petition by means of a writ. If the petition is admitted, the writ will:

• order the suspension of the import, export or transit of the suspect goods;
  
  
• order the IP rights owner to post a bond;
  
  
• provide notification to the relevant warehouse; and
  
  
• authorize the IP rights owner to examine the merchandise, in the presence of Customs.
  

During the infringement investigation, the goods will remain in a warehouse or free trade zone, and the DIAN will be in charge of their administration and safe-keeping. If the merchandise is found not to be counterfeit, the goods will be released. On the other hand, if they are found to be counterfeit, the DIAN will not deliver them up directly to the IP rights owner, instead it will continue to keep them in storage in a warehouse pending further procedures.

Fernando Triana, Triana Uribe & Michelsen, Bogota