ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
another person’s trade mark without authorisation or marketing of counterfeit products. Thus, Argentine jurisprudence has generally adopted the criterion of international exhaustion. This implies that when the owner of the trade mark has marketed goods in Argentina and abroad, said owner cannot prevent the entry and circulation of genuine merchan - dise identified as legitimate merchandise introduced by third parties outside the official distribution net - work. There are certain circumstances that entitle the owner of a trade mark to take legal action when the interme - diary subject performs acts that are incompatible with the functions of the trade marks, such as that guaran - teeing origin and quality. In these cases, exhaustion does not occur, even if the product has been placed on the market by the trade mark owner or through a third party with their authorisation. These circum - stances include: • the removal of the original trade mark by another mark that did not originally distinguish the product, including cases of repackaging or repacking of a foreign trade mark; • the removal or deletion of the original trade mark; • the sale of products with an original brand, in the case of second-hand, used or defective products, without due disclosure of these conditions; and • the sales of products with an original trade mark, which have undergone alterations, modifications or manipulations of any degree without the consent of their owner.
• freezing of bank accounts; • confiscation of goods; and • inspection of premises. The judge has the authority to order injunctive relief, but must consider the following factors: • the probability of success; • irreparable damage; • the defendant’s interests; and • warranties. Precautionary measures will be granted where there is: • urgency; • probability of success; • irreparable damage; and • the posting of a bond. The judge will consider the following factors when evaluating the request for injunctive relief. • The seriousness of the infringement: the judge will consider the seriousness of the trade mark or copyright infringement. • The amount of damage: the judge will consider the amount of damage that has been caused or that can be caused. • The defendant’s conduct: the judge will consider the defendant’s conduct and whether they have demonstrated an intent to infringe the trade mark or copyright. • The plaintiff’s ability to comply with the injunctions: the judge will consider the plaintiff’s ability to com - ply with the injunctions and whether they have the necessary resources to do so. To receive an injunction in Argentina, the owner of a trade mark or copyright must demonstrate irreparable harm, a likelihood of success, urgency and a balance of difficulties. On the other hand, the defendant may oppose the injunction on the grounds of common defences, delays, issues of fairness, lack of evidence, or abuse of rights. A trade mark or copyright defendant may object to an injunction on the following grounds:
10. Remedies 10.1 Injunctive Remedies
In Argentina, precautionary measures are legal instru - ments that allow the owner of a trade mark or copy - right to request the judge to order measures to prevent or avoid irreparable or irreversible damage while the main dispute is being resolved. The following precau - tionary measures are available:
• interim actions; • advertisements;
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