ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
• common defences; • delays; • equity issues; • lack of proof; and • abuse of rights. As for specific defences, the defendant may argue: • failure to register;
• the lost sales method; • the reputation decline method; • the loss of business opportunity method; and • the profit accounting method. 10.3 Attorneys’ Fees and Costs The responsibility to pay the costs of litigation for trade mark and copyright claims is determined in accordance with the rules of the National Civil and Commercial Procedure Code and the Trade Mark and Designation Law. • Litigation costs: litigation costs include court fees, expenses and attorneys’ fees. Generally, the party that loses the litigation is responsible for paying the costs of the litigation, including the prevailing party’s attorneys’ fees. • Reimbursement of attorney fees: in Argentina, the losing party is required to reimburse the prevailing party for attorneys’ fees, as long as the prevailing party has demonstrated that it has incurred reason - able and necessary expenses to defend its rights. • Transfer of fees: fee transfer is granted when the prevailing party has demonstrated that it has incurred reasonable and necessary expenses to defend its rights, and the losing party has failed to demonstrate that the expenses incurred by the winning party are excessive or unjustified. • Circumstances for the transfer of fees: fare transfer is granted in the following circumstances: (a) when the winning party has demonstrated that it has incurred reasonable and necessary expenses to defend its rights; (b) when the losing party has not been able to demonstrate that the expenses incurred by the winning party are excessive or unjustified; (c) when the losing party has acted in bad faith or with negligence in the litigation; and (d) when the winning party has obtained a favour - able ruling in the dispute. • Rate transfer amounts: the amounts of the fee transfer are determined in accordance with the rules of the National Civil and Commercial Proce - dure Code and the Trade Mark and Designation Law. Generally, fee transfer amounts are calculated as a percentage of the judgment amount or claim value.
• lack of use; • priority; and
• exceptions provided by law. 10.2 Monetary Remedies
Trade mark or copyright holders can seek various monetary remedies to be compensated for damages caused by the infringement of their rights. Some of the monetary remedies available are: • actual damages; • accounting and/or restitution of profits; • increased damages for intentional infringement; • damages enhanced by the use of a counterfeit trade mark; and • statutory damages. The judge has the authority to order remedies. Please refer to 10.1 Injunctive Remedies . In Argentina, there are specific rules and restrictions on the type and amount of damages awarded in trade mark or copyright infringement cases. Damages are calculated based on the actual loss suffered by the trade mark or copyright owner, and different methods are applied to calculate damages, such as lost sales, reputational decline, and lost business opportunities. Some of the most important rules and restrictions are: • actual damages; • damages; • limits on damages; • interests; and • costs. As for the way in which damages are calculated, dif - ferent methods are used, such as:
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