Unfair Competition Regarding Intellectual Property in Nicaragua 

March, 2004 - Pastor Lovo Castellón

Nicaragua currently has an exclusive legislation in Intellectual Property, Law num. 380 "Trademarks and other Distinctive signs Law" and its Bylaw (Published in Daily Official Gazette, num. 70 on April 16, 2001; and num. 183 on September 27, 2001). This regulation has been sustained and fortified by the establishment of the necessary mechanisms for the effective protection of the acquired rights, complemented with treaties and international conventions.
In addition, the parallel use of civil and criminal laws in case of infringement allows a better protection of the rights.

All the legal benefits obtained on Intellectual Property include the exclusive control, possession and use of the protected rights.

For the defence of unfair competition, the referred trademark legislation establishes that the holder of a trademark previously registered or in process of registration, will have the right to demand to the competent authority the establishment and declaration of the illicit character of a presumed act of unfair competition against his right. However, this holder will have to prove the continuous and uninterrupted use of his trademark.

Such requirement is met when the products or services protected by the trademark are in the commerce and available under that trademark, according to the amount, way, nature and dimension that correspond and the modalities under which its commercialisation takes place.
The natural or artificial person who violates an exclusive right of Intellectual Property, without being authorized to use it, besides to commit an illicit act, leads the public into confusion or risk of association with respect to other people's products, services, companies or establishments. This is the reason that induces the new legislation to establish a greater degree of differentiation in the market, by granting rights to those who really have acquired them, without harming the right acquired by a third party and without having obtained illicit benefit; therefore, law sanctions acts opposite to the fair and free competition between the rivals.

Still in the case that in first instance the holder of the acquired right who had alleged unfair competition, had a resolution in his against, he will later have a series of recourses in which he will be able to prove his priority right, with good and founded allegations. The priority right will be demonstrated arguing the initial date in which the registry of his trademark appeared for the first time and mentioning the continuous and uninterrupted use aforementioned. These recourses are "revisión" (petition for review), "reposición" and "reforma" (petitions for the court to reconsider its own decision), appeal and cassation.

The Nicaraguan law incorporates within its articles different forms of interlocutory indemnities or precautionary measures, among others, indemnification for damages, immediate suspension of the damaging acts, the seizure of products that cause violation, prohibition of their import or export, including containers, packages, labels, printed material or publicity, the publication of the condemnatory sentence and the destruction of all products or services in relation.

All the previous measures will only proceed if who requests them proves his representation and the existence of the infringed right. He must also present proofs that evidence the commission of the infraction and that the delay in applying the measure will cause an irreparable or greater damage.

The right to exercise an action against another person for unfair competition prescribes in two years from the date the holder of the right had knowledge of the violator act, or in five years from the date the act was committed for the last time. The term that expires first its applicable


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