COSTA RICA Trends and Developments Contributed by: Melissa Mora Martin, IDEAS IP
The reform agenda: legislative priorities The following legislative reforms address the most critical statutory gaps and would, if implemented, sub- stantially transform the effectiveness of trade mark enforcement in Costa Rica. Implementing regulations for Law No 8039 The enactment of comprehensive implementing regu- lations is the foundational reform. These regulations must: • standardise enforcement procedures across all institutional actors; clearly delineate institutional competencies; • establish binding evidentiary protocols for authenti- cation evidence; • harmonise customs detention and notification procedures; • define inter-institutional co-ordination mechanisms; and • regulate the management and disposal of seized counterfeit merchandise. Simultaneously, the Public Ministry, OIJ, Dirección General de Aduanas and PCF should jointly develop an operational investigation protocol consolidating the requirements and responsibilities of each entity into a single binding reference document. Enabling administrative precautionary measures : revisiting the 2007 Procuraduría Opinion A consequential and underappreciated dimension of the implementing regulations agenda concerns the potential activation of administrative precautionary measures by the Industrial Property Registry ( Reg- istro de Propiedad Industrial ). Under Articles 3 and 5 of Law No 8039, the Registry was conceived as a first-instance administrative enforcement authority with the capacity to adopt expeditious interim meas- ures – including the provisional withdrawal of infring- ing products and the suspension of allegedly harmful commercial acts – without requiring the rights-holder to initiate or await judicial proceedings. In practice, this administrative enforcement pathway has been effectively inoperative since 2007. Through Opinion C-034-2007, the Procuraduría General de la República concluded that Articles 3 and 5 lacked
Operational constraints Enforcement operations face recurring operational difficulties: • insufficient OIJ personnel for simultaneous multi- premises raids; • inadequate storage facilities for seized counterfeit goods; and • the restriction, under Article 2 of the General Police Law, on the participation of municipal police forces in IP enforcement operations – a restriction that creates acute bottlenecks given that municipal police are the most readily available law enforce- ment resource in the urban commercial zones where counterfeiting is concentrated. The organised crime nexus: a paradigm shift The most consequential development in Costa Rica’s enforcement landscape over the past decade is the documented connection between trade mark coun- terfeiting and organised criminal activity. Enforce- ment operations have repeatedly uncovered the co- presence of counterfeit merchandise with significant quantities of undeclared cash, illegal firearms, narcot- ics and – most recently – synthetic opioids, includ- ing fentanyl. These are not coincidences: they reflect the structural reality that the logistics infrastructure, money-handling systems and distribution networks of large-scale counterfeiting operations are readily adaptable to other criminal commerce. Despite this operational evidence, IP offences con- tinue to be processed through conventional criminal channels without the investigative powers, inter-agen- cy co-ordination or prosecutorial priority that organ- ised crime cases command. The resistance to formally classifying large-scale counterfeiting as organised criminal conduct – within the framework of the Law against Organised Crime ( Ley contra la Delincuencia Organizada ) – is a strategic obstacle of the first order. Organisations including INTERPOL, Europol and the OECD have extensively documented the organised crime dimensions of counterfeit trade at the global level. Costa Rica’s enforcement policy must align with this international consensus.
77 CHAMBERS.COM
Powered by FlippingBook