ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants The merely declaratory action is designed as the means to obtain the court’s declaration on: • whether there is a right on the part of the plaintiff (positive declaratory action); or • whether there is no right on the part of the defend - ant (negative declaratory action). The legal system requires three elements for the action to be admissible: • uncertainty regarding the existence, scope, or nature of a legal relationship; • that such a lack of certainty may cause damage or injury; and • that there is no other useful tool or way to imme- diately put an end to the indicated state of uncer - tainty. For reasons of equity and contrary to the precau - tionary measures that the plaintiff may request, the defendant is not liable for damages when, once the merits of the matter are decided, it is determined that there was no violation of another person’s intellectual property rights. The TRIPS Agreement, which is applicable in Argenti - na, provides that in cases where interim measures are instigated or expire by the action or omission of the complainant, or in those cases where it is subsequent - ly determined that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall be empowered to order the complainant, at the request of the respondent, to give the defendant adequate compensation for any damage caused by these measures. The post of a bond or an equivalent guarantee that is sufficient to protect the defendant and prevent abuse is provided. 7.7 Small Claims There are alternative ways to resolve small trade mark or copyright claims, namely mediation and arbitration. The fora hearing these cases are the Mediation and Arbitration Centre of the Buenos Aires Chamber of Commerce and small claims courts.
The legal bodies hearing the claims are: • trial judges – these courts are responsible for resolving trade mark and copyright disputes in the first instance; • court of appeals – these courts are responsible for resolving appeals from decisions of first instance; and • the Supreme Court of Justice – the highest court that is responsible for resolving appeals from the decisions of the lower courts. 7.8 Effect of Trade Mark and Copyright Office Decisions Decisions by trade mark or copyright offices can have significant effects on infringement actions, as follows: • effects on the validity of the trade mark or copy - right; • effects on the admissibility of the infringement action; • effects on the determination of the infringement; and • effects on the amount of compensation. In Argentina, civil courts may consider the decisions of trade mark or copyright offices as evidence in the infringement action. However, civil courts are not bound by these decisions and can make their own decisions based on the evidence filed in the case. 7.9 Counterfeiting and Bootlegging In Argentina, a counterfeit trade mark or copyright counterfeit refers to the reproduction, distribution, or commercialisation of products or works that infringe the intellectual property rights of a trade mark or copy - right owner, without their authorisation or consent. Trade mark and copyright counterfeiting is a criminal offence in Argentina, and is regulated by the Trade Marks and Designations Law (Law No 22.362) and the Copyright Law (Law No 11.723). In Argentina, there are several procedures and rem - edies to address trade mark and copyright counter - feiting, including: • criminal complaint;
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