COSTA RICA Trends and Developments Contributed by: Melissa Mora Martin, IDEAS IP
full normative efficacy in the absence of implement- ing regulations: without a properly structured regula- tory framework defining infractions, procedures and applicable sanctions, the Registry could not be said to possess the administrative sanctioning authority those provisions contemplated. The Administrative Registry Tribunal ( Tribunal Registral Administrativo ) confirmed this position in Vote No 373-2007, hold- ing that the Registry lacked competency to issue autonomous precautionary measures, and that any such measures had to be understood as accessory to subsequent judicial proceedings. More than 17 years have elapsed since that deter- mination, and the legal and factual context warrants fundamental reassessment. The normative landscape has evolved: comparative jurisprudence and interna- tional enforcement practice – including TRIPS, which expressly recognises the need for expeditious, pro- portionate enforcement mechanisms not confined exclusively to judicial channels – provide a stronger foundation for a regulatory solution than existed in 2007. The implementing regulations for Law No 8039 should address this gap directly. By defining, with the precision required by the principle of legality, the infractions subject to administrative action, the proce- dural guarantees applicable to Registry proceedings and the interim measures available, the regulations could restore the administrative enforcement function the legislature originally intended – providing rights- holders with an expeditious first-track remedy that complements, rather than replaces, the criminal and civil judicial pathways. A renewed formal consultation to the Procuraduría General de la República , account- ing for the time elapsed and the evolution of interna- tional enforcement obligations, is recommended as a precondition to any regulatory drafting in this area. Clarification of the importation definition A targeted amendment to Article 44 of Law No 8039 should clarify that goods bearing counterfeit marks are subject to the statute’s criminal provisions from the moment they enter Costa Rican customs terri- tory with commercial intent, regardless of whether nationalisation formalities have been completed. The amendment should focus on commercial intent, pos- session for distribution and entry into customs ter- ritory – and must be fully aligned with the CAFTA-
DR obligation for ex officio border enforcement. This reform would close the most exploited legal loophole
in current IP criminal enforcement. Reform of the General Police Law
Amendment of Article 2 of the General Police Law to expressly authorise municipal police participa- tion in IP enforcement operations would immediately expand operational capacity for raids, improve logis- tics in multi-premises operations and reduce the bot- tleneck currently created by exclusive dependence on the OIJ. This reform should be paired with targeted training protocols for municipal officers on evidence handling, chain of custody and the scope of their role in IP operations. Recognition of large - scale IP crimes as organised crime The formal recognition of large-scale trade mark coun- terfeiting operations within the scope of Costa Rica’s Ley contra la Delincuencia Organizada – with threshold criteria calibrated to the scale and sophistication of the operation – would unlock enhanced investigative tools, including undercover operations, communica- tions interception and extended pre-trial detention. It would also activate the more robust asset-tracing and confiscation mechanisms available in the organised crime framework and elevate the prosecutorial prior- ity assigned to serious IP cases. The factual and legal basis for this reform is established; the political will to implement it is what remains to be mobilised. Digital enforcement framework Counterfeit goods are increasingly sold through social media platforms, messaging applications and e-com- merce marketplaces – channels for which Costa Rica’s current enforcement infrastructure was not designed. The implementing regulations for Law No 8039 should include protocols for the collection, preservation and admissibility of digital evidence in IP proceedings. Legislative reform should further establish a frame- work for co-operation with online platforms operating in or accessible from Costa Rica, drawing on the EU’s notice-and-action model as a reference point.
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