ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
confusion, and infringement by omission is charac - terised by non-use of the mark and the likelihood of confusion. Trade mark infringements take place upon: • fraudulently counterfeiting or imitating a trade mark or designation; • use of a counterfeit, fraudulently imitated, or third-party trade mark or designation without the owner’s authorisation; • the offer for sale or sale of a counterfeit, fraudu - lently imitated or belonging to a third-party trade mark or designation without the owner’s authorisa - tion; and • the offer for sale or sale, or otherwise marketing of the counterfeit or fraudulently imitated trade mark products or services. Copyright infringement takes place upon: • editing, selling or reproducing by any means or instrument, an unpublished or published work with - out the authorisation of its author or successors; • forging intellectual works, understood as the publi - cation of a work already published, falsely display - ing the name of the publisher authorised for that purpose; • editing, selling or reproducing a work by deleting or changing the name of the author, the title of the work or intentionally altering its text; and • editing, or reproducing a greater number of duly authorised copies. In order for an action for infringement of industrial or intellectual property to be successful, the following elements must be proven: • existence of the intellectual property; • infringement; • causality; • fraud or fault; and • legitimate property. In Argentina, the elements of the different types of infringement may be considered as follows.
• Direct infringement: use of the trade mark, brand identity, use in the same market and intent to con - fuse. • Indirect infringement: use of a similar trade mark, likelihood of confusion, use in a related market and intent to take advantage of the reputation and goodwill of the trade mark. • Contributory infringement: use of the trade mark in different markets, risk of confusion, intention to compete and use of the trade mark in an unfair manner. • Infringement by omission: non-use of the trade mark, risk of confusion, intent to take advantage and use of a similar trade mark. There are several trade mark claims that can be filed, in addition to direct and indirect infringement. • Dilution by blurring. The elements of this claim are: (a) widespread use of the trade mark by third par - ties; (b) loss of brand distinctiveness; and (c) damage to brand reputation. • Dilution by tarnishing. The elements of this claim are: (a) brand association with low-quality products or services; • Cybersquatting. The elements of this claim are: (a) occupation of an internet domain name identi - cal or similar to the registered trade mark; (b) intent to gain financial gain or cause harm to the brand; and (c) use of the internet domain name in a manner that may cause confusion or damage to the reputation of the trade mark. All of these claims are set forth in the following stat - utes: • Trade Marks and Designations (Law No 22.362); • Copyright Law (Law No 11.723); • Consumer Defence Law (Law No 24.240); and • Software Law (Law No 25.036). (b) decreased brand value; and (c) damage to brand reputation.
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