ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
Appeals Appeals may be filed against court decisions in trade mark and copyright matters. The parties cannot directly influence the final decision of the court. There are several courts specialising in intellectual property, such as the: • National Courts of First Instance in Federal Civil and Commercial Matters; • the Competition Tribunal; and • INPI. 8.2 Effect of Registration In Argentina, when the owner of a trade mark or copy - right is the owner of a registration, they receive several judicial benefits, such as: • presumption of validity; • presumption of ownership; • presumption of use; • limitations on defences; and • use of the trade mark for the same products and services. Regarding the similarity of goods and services, Argen - tine law establishes that a trade mark will be consid - ered similar to another if: • it is used for identical goods or services to those listed in the trade mark registration; • it is used for similar goods or services to those listed in the trade mark registration, and it is shown that it is likely to cause confusion among consum - ers; or • it is used in a way that is likely to cause confusion among the public, regardless of whether it is used for identical or similar goods or services. As for the period of time after which certain defences are not available, Argentine law provides that: • after five years from the date of registration of the trade mark or copyright, the alleged infringer can - not claim that the trade mark or copyright is invalid or that it has not been used effectively; and
• after ten years from the date of registration of the trade mark or copyright, the alleged infringer can - not claim that the trade mark or copyright is not owned by the owner. 8.3 Costs of Litigating Infringement Actions The typical costs for bringing a trade mark or copy - right infringement action in the first instance can vary depending on several factors, such as the complexity of the case, the amount of evidence, and number of witnesses. Below are some of the typical costs and factors that significantly influence the expected costs. Typical costs: • attorneys’ fees; • costs of filing the lawsuit; • notification costs; • costs of evidence and witnesses; and • costs of expert reports. Factors that significantly influence the expected costs: • case complexity; • amount of evidence and number of witnesses; • experience and specialisation of the lawyer; • location of the court; • duration of the process; • level of opposition of the defendant; and • need for expert reports. 9. Defences and Exceptions to Infringement 9.1 Defences to Trade Mark Infringement There are several defences to trade mark infringement, which can be classified into two categories: absolute defences and relative defences. Some of the most common defences are as follows. Absolute Defences Priority The priority defence is based on the fact that the defendant registered their trade mark before the plain - tiff. In order for this defence to be valid, the defendant must show that their trade mark was registered prior to the plaintiff’s trade mark.
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