Achievements of CAFTA Regarding Intellectual Property. 

April, 2004 - Darlis M Gordon Arana

An effective protection of Intellectual Property Rights.

Success is the word that better describes the achievements obtained from the negotiations of CAFTA for the protection of intellectual property rights. Without a doubt, the negotiators that acted on behalf of Nicaragua were exceptional representatives of the needs for a better protection of these rights before evident infractions that have been produced and remain without punishment.

As an inevitable general obligation, the Parties to this Treaty, are bound to observe the general principles of due process recognized as fundaments of the legal systems that rule for each country. The protection of intellectual property rights of the holder are now protected through effective civil, administrative and criminal resources; but at the same time, these rules do not affect the rights of those who have been accused as transgressors, creating the perfect balance between the right to demand protection and the right of defense.

In this way, judicial authorities are entitled to order the payment of indemnification for the damage that has been caused by the transgressor. Also, the retribution of the earnings obtained as a result of the commercialization of products object of the transgression, may be ordered when these exceed such indemnification. Piracy and falsification of products are firmly punished, since the judicial authority is entitled to order the destruction of merchandize considered as pirate or falsified and the destruction of material and inputs that were used in the manufacture or creation of such merchandise, in order to minimize the risk of further infractions. Finally, the transgressor may be obliged to furnish information regarding persons or entities involved, in any way with the infraction, either in the production or in channels of distribution of the product or service object of the transgression.

Nevertheless, as it was previously referred, the intention of this treaty is not to leave the defendant unprotected, on the contrary, it is established that in order for this measures to proceed, the right holder is obliged to prove his capacity as such, through the evidence that his product or service is already registered or in process of registration. The right holder is also obliged to prove that his right is object or could be object of an infraction. Additionally, the plaintiff must offer sufficient guarantee or caution in order to protect the defendant and therefore avoid abuses by the authorities.

Another important achievement of the CAFTA, with regards to the frontier measures is that the custom offices are impeded to allow the introduction and may forfeit ex officio (without formal request of a particular or from the right holder) merchandise that is presumed to be false or pirate, which violates the right of the author. Likewise, the custom office is authorized to communicate the right holder about the name and address of the consignor, importer and the consignee and the quantity of the merchandise involve in the infraction.

All the aforementioned will be possible after the modernization process of custom offices is concluded. Customs, will now serve as effective supervisors in a broad relation with the MIFIC (Ministry for Development, Industry and Commerce). It is probable that they will keep a parallel record to the one kept at the Intellectual Property Registry. Both the execution of ex officio measures, the reform of these institutions and the adaptation of the existing legislation, will be possible within a period of 4 years after the incorporation of this treaty in the Nicaraguan legal framework.



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