ARGENTINA Law and Practice Contributed by: Santiago R O’Conor, Gisela M Russo, Gisela M Manrique and Ayelen Rocio Velaz, O’Conor & Power
• Exceptions: there are exceptions to the general rule that the losing party must reimburse the prevailing party for attorneys’ fees. For example, if the losing party is an individual or legal entity that does not have sufficient resources to pay the costs of litiga - tion, the judge may decide that fee shifting does not apply. 10.4 Ex Parte Relief The owner of a trade mark or copyright may seek relief without notice from the defendant in certain circum - stances, such as when injunctive relief is requested. However, in general, prior notification to the defend - ant is required, which may be in person, by mail or by telegram, and must contain the elements established in the National Civil and Commercial Procedure Code. • Precautionary measures: the owner of a trade mark or copyright may request precautionary measures without prior notice to the defendant, as long as the requirements established in the National Civil and Commercial Procedure Code are met. Injunc - tive measures may include suspension of produc - tion or distribution of products that infringe the trade mark or copyright, seizure of goods that infringe the trade mark or copyright, or prohibition of use of the trade mark or copyright. • Prior notification: generally, prior notice to the defendant is required before seeking relief. Prior notification must contain the following elements: (a) identification of the owner of the trade mark or copyright; (b) the description of the trade mark or copyright infringed; (c) the identification of the defendant and their address; (d) the description of the violation and the dam - ages caused; and (e) the request to cease and desist from the viola - tion. • Type of notification: prior notification can be: (a) personal notification – the notification is made personally to the defendant, through a judicial officer or a notary; (b) notification by email – notification is made by certified email, with return receipt requested; or (c) notification by telegram – notification is made by telegram, with acknowledgment of receipt.
• Circumstances for notification: prior notification is required in the following circumstances: (a) when reparation is requested for infringement of a trade mark or copyright; (b) when the suspension of the production or dis - tribution of products that infringe the brand or copyright is requested; or (c) when the seizure of merchandise that infringes the trade mark or copyright is requested. • Exceptions: there are exceptions to the general rule of prior notification, such as: (a) when the defendant is an unknown person or their address is not known; (b) when prior notification may cause irrepara - ble damage to the owner of the trade mark or copyright; and (c) when the violation is flagrant and immediate action is required to avoid irreparable damages. 10.5 Customs Seizures of Counterfeits or Parallel Imports Argentina provides for customs embargo on coun - terfeits and parallel imports. The relevant process is described below. • The Law on Trade Marks and Designations (Law No 22.362) establishes that the owner of a trade mark can request customs seizure of goods that infringe their trade mark. • The Customs Regulations (Decree No 1001/2018) establishes the procedures for the customs seizure of goods that infringe intellectual property rights, through the Customs Alert System. The Customs Alert System is a system implemented by the Customs Collection and Control Agency (ARCA) in Argentina, which allows registered trade mark own - ers to receive information about imported merchan - dise bearing their brand before they are released into the market by the customs officials. The latter grants the opportunity to anticipate the entry of counterfeit products and obtain valuable information on parallel imports of genuine merchandise. Once the trade mark is registered with the Custom Alert System, the merchandise identified with the trade mark is automatically blocked by Customs for three days to allow the trade mark owner to inspect it.
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