Special prosecutor orders closure of websites selling counterfeit products

Thanks to the Special Prosecutor for Crimes against Intellectual Property and Computer Security, Panama has set a precedent regarding the country's position as to websites selling counterfeit and infringing products. Over the past months, the prosecutor has ordered that three websites be shut down for illegal activities.

Despite the lack of special legislation on the matter, such cases can be dealt with by the prosecutor due to the fact that many international websites hire hosting services from Panamanian companies. This clears the way for the use of Panamanian legislation, such as the Judicial Code - specifically Article 2178, which states that public offices can search an establishment and seize goods where there is serious evidence of illegal activity.

Actions are initiated by filing a complaint with the special prosecutor, which must evaluate the facts in order to determine whether there is "serious evidence" of illegal activity. The function of this office is to issue a preliminary report assessing the existence of a crime or violation, using established trademark law and the Criminal Code.

According to the Criminal Code, the act of counterfeiting is a crime punishable with two to four years' imprisonment. In addition, the Panamanian trademark law indicates that trademark infringement occurs where a party uses a trademark without the authorisation of the owner, including in domain names or email addresses.

Once the prosecutor has gathered sufficient evidence to determine that a criminal offence has occurred and that a connection exists with the person or persons committing the offence, it will order that a visual inspection, a search and precautionary measures take place in the company serving as host. First, an inspection and the seizure of evidence will be carried out on the premises of the company hosting the website. Then, an injunction will be issued to shut down the site in question. The host must provide a cancellation report and preserve the content for two years.

Marissa Lasso De La Vega, Alfaro Ferrer & Ramirez, Panama