COSTA RICA Trends and Developments Contributed by: Melissa Mora Martin, IDEAS IP
warrants, seizure, arrest and sanctions with genuine deterrent potential. Border measures, available under both domestic law and CAFTA-DR, allow customs authorities to detain suspected infringing shipments and notify rights-holders. The practical effectiveness of all three channels is, however, substantially con- strained by the structural challenges described in the following section. Principal structural challenges Regulatory vacuum The absence of implementing regulations for Law No 8039 means that the enforcement system operates without standardised procedures, harmonised eviden- tiary protocols, clear institutional competencies or co- ordinated prosecution criteria. Each case becomes, in effect, a negotiation about applicable standards – a situation that favours experienced infringers and penalises rights-holders seeking predictable out- comes. Collapse of prosecutorial specialisation Prior to 2019, IP criminal matters were centralised within the Prosecutor’s Office for Economic, Tax, and Customs Crimes ( Fiscalía Adjunta de Delitos Económi- cos , Tributarios y Aduaneros – FADETA) in San José, where a body of specialised expertise had been built over time. In 2019, cases were decentralised to regional prosecutors’ offices. The consequences have been severe. Regional prosecutors typically lack IP expertise, customs law knowledge and familiarity with counterfeit supply chain analysis. High staff turnover prevents the consolidation of specialist knowledge. The institutional memory and consistent prosecution criteria that FADETA had developed were dispersed. The decentralisation model has proven structur- ally incompatible with the technical demands of IP enforcement. Fragmented inter - institutional co - ordination Effective enforcement requires co-ordinated action among customs authorities, the Public Ministry, the Judicial Investigation Agency ( Organismo de Inves- tigación Judicial – OIJ) and the Fiscal Control Police ( Policía de Control Fiscal – PCF). No standing inter- institutional protocols govern the division of respon- sibilities, information sharing or procedures for joint operations. Communication is ad hoc and contin-
gent on individual relationships. The PCF’s role in IP enforcement is particularly opaque: its material com- petencies are not clearly delineated, making effective multi-agency operational integration difficult. Deteriorating border controls Border enforcement has experienced a marked and sustained deterioration. The frequency of customs notifications to trade mark owners upon detection of suspicious shipments has fallen significantly. Proac- tive ex officio enforcement – required under CAFTA- DR – is rare in practice. There is no centralised registry of IP rights-holders accessible to customs officers, no standardised notification protocol and no system- atic risk-profiling mechanism for counterfeit goods. Most concerning, recent enforcement operations have revealed counterfeit products entering Costa Rica through formal customs channels with appar- ently valid documentation – raising serious ques- tions about the integrity of the customs clearance process. Since October 2024, training co-operation programmes through which practitioners have histori- cally provided customs officers with product authen- tication resources have faced procedural obstacles imposed by the International Affairs Directorate of the General Directorate of Customs ( Dirección General de Aduanas ), with a deterrent effect that has effectively suspended these initiatives. The importation definition loophole A critical legal ambiguity concerns the interpretation of “importation” in Article 44 of Law No 8039. Certain authorities have applied the definition from the Gen- eral Customs Law, which treats goods as imported only once formally nationalised through payment of import duties. Under this reading, counterfeit goods intercepted before nationalisation may fall outside the criminal provisions of the law – allowing infringers to deliberately avoid completing customs formalities as a shield against criminal sanction. This interpreta- tion conflicts directly with Directriz DGA - 004 - 201 of the Dirección General de Aduanas , which does not condition customs intervention on the completion of nationalisation formalities. The unlawful nature of counterfeit merchandise exists independently of tax payment; legislative clarification is urgently required.
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