RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/SLV/1
IP/Q2/SLV/1
IP/Q3/SLV/1
IP/Q4/SLV/1
18 August 2000
(00-3340)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
EL SALVADOR1
This document reproduces the introductory statement by the Deputy Minister for the
Economy of El Salvador, Mr. Edua rdo Ayala Grimaldi, together with the questions put to the
Permanent Mission of Panama and the corresponding replies for the purposes of the review
undertaken at the Council meeting held from 26 to 29 June 2000.2
_______________
I. INTRODUCTORY STATEMENT
The Government of El Salvador attaches considerable importance to the protection of
intellectual property rights.  Our presence here today underlines the importance accorded to this
subject and provides the Member countries of the WTO with the assurance that El Salvador, despite
its limitations as a developing country, has complied with and will continue to respect its international
undertakings in this area, as well as those under the other WTO Agreements, in accordance with our
international tradition.
Since 1860, El Salvador has protected intellectual property rights through a provision in its
Constitution;  this provision has since been ame nded and recently, in 1993, following an examination
of the agreements that were being finalized for signature in the Uruguay Round, a law compatible
with the provisions of the TRIPS Agreement was drafted.
This Law regulates copyright, patents, utility models, industrial designs and trade and
industrial secrets.  It was accompanied by amendments to the Penal Code in order to provide penalties
for infringement of intellectual property rights.
In addition, underscoring still further the importance our Government attaches to this
question, in 1994, through its Legislative Assembly, El Salvador ratified the Berne and Paris
Conventions.  It had already ratified the Geneva and Rome Conventions, inter alia , and had signed
bilateral agreements on intellectual property with Germany, Mexico, France and Spain, inter alia .
In 1998, the Legislative Assembly ratified two im portant WIPO treaties:  the first, known as
the WPPT, concerns performances and phonograms, and the second, known as the WCT, covers
copyright.  These will enter into force when the minimum number of ratifications required has been
reached.
                                                     
1 For further information concerning the laws and regulations relating to the subject-matter of the
review, notified by El Salvador under Article 63.2 of the Agreement, refer to documents IP/N/1/SLV/1;
IP/N/1/SLV/C/1, 2 and 3, IP/N/1/SLV/I/1-5 and IP/N/6/SLV/1.
2 The minutes of this meeting were circulated in document IP/C/M/27.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 2
In order to ensure compliance with the Law, a specialized intellectual property unit has been
set up within the Office of the Attorney General of the Republic, which is responsible for prosecuting
all offences, in order to devote special attention to this subject and to be able to combat piracy, as well
as any other act infringing intellectual property rights.
The Ministry of the Economy has made strenuous efforts to coordinate all the institutions
dealing with intellectual property matters, including the judicial authorities, which are responsible for
administering justice through the courts, the national civilian police force, the Directorate-General of
Customs Revenue, the National Registration Centre and the Office of the Attorney General of the
Republic, and the results have been extremely encouraging.
I should like to draw attention to an important constitutional provision in El Salvador relating
to international agreements and treaties;  unlike other countries, in El Salvador international
agreements have full, automatic and direct effect without the need for any supporting legislation at the
domestic level.  Consequently, treaties become laws of the Republic as soon as they are ratified and
enter into force and, if secondary legislation contains any contrary provision or conflicts with those in
the international treaties, El Salvador's Constitution prescribes that the international treaties prevail.Consequently, any inconsistent secondary legislation becomes inapplicable.
In the area of intellectual property, our legislation takes into account the basic principle
underpinning all the Agreements of the World Trade Organization, namely, the principle of non-
discrimination.  There is no discrimination whatsoever in national treatment or most-favoured-nationtreatment that places a foreigner on a different footing to a Salvadoran citizen.  El Salvador thus
applies national treatment and the most-favoured-nation principle.
The legislation implemented by El Salvador since 1993 has led to fundamentally important
changes in the area of intellectual property:  firstly, the previous copyright law required priorregistration before rights could be granted.  The 1993 Law eliminated this requirement, which has
been replaced by simple filing of the works, and ownership of a work is recognized as of the time of
its creation, without any registration requirement or any formality before any national administrative
authority.
The term of five, ten or 15 years for patents under the previous law has been replaced by a
period of 20 years, with the exception of pharmaceutical products, which are protected for 15 years.
Nevertheless, as of 1 January 2000, in El Salvador pharmaceutical products have been protected for
20 years, as required by the TRIPS Agreement, which is a law of the Republic.
For the first time in El Salvador's history, patents are specifically governed by the principle of
reversal of the burden of proof, in accordance with the TRIPS Agreement.
Also for the first time, trade and industrial secrets have been regulated, which was not the
case prior to adoption of the Law, with the exception of an offence in the Penal Code which provided
for sanctions for violation of trade and industrial secrets, although there was no supporting legislation
to indicate what should be considered a trade or industrial secret.  The 1993 Law completes thesubstantive regulatory framework and penal sanctions in this respect.
Regarding copyright, the previous law allowed a term of protection of 25 years after the death
of the author and 25 years in general for companies or legal persons or anonymous authors;  the 1993
Law extended this protection to 50 years.
The Law also provides for precautionary measures to give owners of legitimate rights the
authority to act promptly if there is any infrin gement of their rights, including the following:
attachment or preventive seizure of unlawfully reproduced goods, attachment or seizure of profitsIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 3
realized by the infringer of the intellectual property rights, destruction of the goods unlawfully
reproduced inter alia.
Concerning judicial procedures and appeals, the legislation provides for summary civil
proceedings, that is to say flexible procedures to deal with any request by the legitimate owners ofcopyright and, for this purpose, El Salvador has courts with jurisdiction in commercial matters, as
well as appellate courts and, at the highest level, the Civil Chamber of the Supreme Court of Justice.
The legislation on criminal matters has recently been amended and more flexible procedures
applicable to all offences have been established, including offences against intellectual property
rights;  lastly, in the administrative sphere, El Salv ador has made far-reaching changes in the structure
of the competent administrative body, namely the National Registration Centre, giving it substantial
authority to settle intellectual property disputes and to act as an arbitrator in order to reach an
administrative settlement of any problem that mi ght arise between owners of copyright and users.
Regarding the legal rights of owners of copyright, El Salvador's legislation allows the owner,
either himself or through an attorney, to initiat e any proceedings before the commercial or criminal
courts or the administrative authority.
Measures at the border have also been provided, establishing precautionary measures such as
the possibility of preventing the import or export of products that infringe intellectual property rights;
this measure can only be ordered by the courts of justice in El Salvador through an order sent by the
courts to the Customs authority in order to prevent the entry of products that infringe intellectualproperty rights.
As far as plant varieties are concerned, El Salvador provides for their protection through
patents;  nevertheless, we are drafting special legislation on plant varieties and we hope that, after
ratification by the Legislative Assembly, it will soon enter into force.
Geographical indications are regulated through the Central American Convention for the
Protection of Industrial Property, which contains provisions against unfair competition.
Despite all the efforts made by El Salvador in recent years in this area and, I repeat, with the
limitations that countries such as ours face in being able to implement legislation in support of the
WTO Agreements rapidly, I must emphasize that El Salvador has made significant progress in legal
regulation of this area and we are making all the additional efforts needed to be able to improve
domestic legislation so as to make it more effective and better able to protect intellectual property
rights, which we undertook to protect when we signed the WTO Agreements.
II. REPLIES TO THE QUESTIONS FROM CANADA
1. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61?
Right holders have the following recourse:
(a) Civil action dealt with in summary proceedings before courts with jurisdiction in
commercial matters;  according to Article 184 of the Law on the Promotion and
Protection of Intellectual Property and Article 2 of the Law on Commercial
Procedures.
Right holders who are natural persons may act on their own behalf, subject to the
signature and stamp of the Chief Attorney, Articles 98 and 104 of the Code of CivilIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 4
Procedure, or through a legal representative who must be a lawyer, in accordance
with Articles 99 and 101 of the Code.
Right holders who are legal persons may act through their legal representatives,
subject to the signature and stamp of the Chief Attorney, according to Article 104 ofthe Code of Civil Procedure, or through an attorney, who must be a lawyer, in
accordance with Articles 99 and 101 of the Code.
Article 59 of the Law on Commercial Procedures lays down the way in which
summary proceedings must take place, referring back to Articles 975, 976 and 977 of
the Code of Civil Procedure.
(b) Criminal action is at the request of a private person and requires the intervention of
the holder of the right infringed.
The holder of the right infringed must l odge the complaint with the Office of the
Attorney-General of the Republic, either personally or through his legalrepresentative, who must be a lawyer.
The following are the legal provisions in the Penal Code which lay down penal
sanctions for infringement of copyright and related rights and for infringement of the
distinctive commercial signs that are the subject of the question:
Infringement of distinctive commercial signs
Article 229 of the Code of Penal Procedure establishes the following:
Any person who, for industrial or commercial pu rposes and without the consent of the owner,
reproduces, imitates, modifies or in any other way uses a trademark, trade name, expression
or advertising slogan or any other distinctive commercial sign which infringes industrial
property rights registered in accordance with the law shall be punishable by a term of
imprisonment of one to three years.
The same penalty shall apply to any pers on who knowingly possesses for the purpose of
selling or placing on the market products or services bearing distinctive commercial signs
which, in accordance with the preceding paragraph, constitute an infringement of the
exclusive rights of the holder.
Infringement of copyright and related rights
Article 226 of the Code of Penal Procedure establishes the following:Any person who reproduces, copies, distributes or communicates publicly all or part of a
literary, artistic, scientific or technical work or its artistic transformation, interpretation orperformance fixed on any type of medium or communicated through any medium without the
authorization of the holders of the corresponding intellectual property rights or their assignees
shall be punishable by a term of imprisonment of one to three years.
The same penalty shall apply to any person who does not make a deposit with theCommercial Registry, or who imports, exports or stocks copies of the said works, productions
or performances without the aforementioned authorization.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 5
Aggravated infringement of copyright and related rights
Article 227 of the Code of Penal Procedure provides the following:
Any person who carries out any of the acts mentioned in Article 226 above shall be
punishable by a term of imprisonment of three to five years if any of the following
circumstances apply:
1. The status of author of a work or part thereof or the name of an artist in a
performance has been usurped;
2. the work's integrity has been significantly altered without the author's authorization;
and
3. the quantity or the value of the unlawful copy is of special economic importance.In addition to the aforementioned offences, the following measures apply:
∙ Civil liability, Articles 114 and 115 of the Penal Code, which lay down the following:
Carrying out any act deemed by the law to be an offence or misdemeanour shall give rise to
civil liability.  The civil liability consequences of the offence shall be specified in the judgement and
include:
- Restitution of the objects obtained as a result of carrying out the punishable offence
or, failing that, payment of the value thereof;
- compensation for the injury caused;- indemnification of the victim or his family for the prejudice caused by the material or
moral injury;  and
- the cost of the proceedings.
∙ Loss of the product, revenue and advantages obtained as a result of the offence, Article 126 of
the Code of Penal Procedure provides that, without prejudice to any payments or
compensation due for the damage and prejudice caused by the offence, judges or courts mayorder the forfeiture to the State of the product, profits and advantages obtained by the
convicted person as a result of the offence.
The forfeiture shall include the assets, rights and objects obtained under any title for the
purpose or as a result of the offence by the person convicted or by any other natural or legalperson on whose behalf he or she acted.
∙ Seizure, Article 127 of the Penal Code
Without prejudice to the rights of persons who purchased in good faith against payment or to
improvements introduced or contributions made free of charge by the purchasers, judges orthe courts shall order the seizure or forfeiture to the State of the objects or instruments used
by the person convicted to prepare or facilitate the act.
2. What protection does El Salvador's copy right legislation afford to foreign works?IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 6
Pursuant to Articles 11, 12, 13 and 14 of the Law on the Promotion and Protection of
Intellectual Property, any literary, scientific or artistic work published by a foreigner in El Salvador is
protected.
In addition, works published abroad enjoy protection in El Salvador in accordance with
Article 5(1) of the Berne Convention.  Furthermore, through Articles 3 and 4 of the TRIPS
Agreement, national treatment and most-favoured-nation treatment are granted without any
exceptions that would place a Salvadoran citizen in a situation different to that of a foreigner.
El Salvador recognizes the principle of copyright protection without the need for any
formalities.  Article 96 of the Law on the Promotion and Protection of Intellectual Property, in
accordance with Article 5(2) of the Berne Convention, provides that the formalities for filing works
protected by the law shall not be constitutive of rights but have mere declaratory character in order to
give owners better legal security and a means of proving their rights.  Consequently, failure to deposit
does not prejudice the enjoyment or exercise of the rights recognized by the law.
III. REPLIES TO THE QUESTIONS FROM THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain how the limitations on copyright in Article 45 of the Law on the
Promotion and Protection of Intellectual Pr operty (Decree No. 604 of 15 July 1993) are
interpreted and justified in relation to Articles  9 and 13 of the TRIPS Agreement and in relation
to the Articles of the Berne Convention.
Article 13 of the TRIPS Agreement states that Member States of the WTO may impose
limitations on or exceptions to exclusive rights in certain special cases provided that the limitations or
exceptions do not conflict with the normal exploitation of the work and do not unreasonably prejudice
the legitimate interests of the right holder.
Article 9(2) of the Berne Convention states that countries of the Union may permit the
reproduction of literary and artistic works in certain special cases, provided that such reproduction
does not conflict with a normal exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author.
In accordance with the foregoing, Article 45 of the Law on the Promotion and Protection of
Intellectual Property provides for exceptions that do not affect the normal exploitation of a work and
do not cause unjustified prejudice to the legitimate interests of the owner in respect of works disclosed
lawfully in the following cases:
- Production of one copy of the work for the personal and exclusive benefit of the user,
provided that the normal exploitation of the work is not affected and that the
legitimate interests of the user are not unjustifiably prejudiced;
- photomechanical reproduction for exclusive personal use, provided it is confined to
small parts of a protected work or to works that are out of print;
- reproduction by reprographic means, of articles, brief extracts or lawfully published
short works for teaching or the holding of examinations at educational institutions,
provided that there is no gainful intent and that such use is in accordance with fair
practice;IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 7
- production of single copies of works by libraries or archives that do not pursue profit-
making purposes, where the copy forms part of the permanent collection, with a view
to preserving that copy and replacing it in case of need, or for the replacement, in the
permanent collection of another library or archive, of a copy that has been mislaid,
destroyed or rendered unusable, provided that it is not possible to acquire anotheroriginal in a reasonable time or on reasonable terms;
- reproduction of a work for the purpose of judicial or administrative proceedings, to
the extent justified by the purpose;
- reproduction of a work of art on permanent display in a street, square or other public
place in an artistic medium different from that used for the making of the original.With regard to buildings, this right shall be limited to the outer walls;
- production of a single copy of a computer program, exclusively for security or back-
up purposes;  and
- storage of the computer program in the internal memory of the computer hardware for
the sole purpose of its operation by the user.
B. P
ATENTS
2. Please explain how the principle of non-discri mination in Article 109 of the Law on the
Promotion of Protection of Intellectual Property (Decree No. 604 of 15 July 1993) is applied in
relation to Articles 27 and 33 of the TRIPS Agreement.
As of the entry into force of the TRIPS Agreement on 1 January 2000, the provision in the
second paragraph of Article 109 of the Law on the Promotion and Protection of Intellectual Property
ceased to have effect;  consequently, protection for patents in general, including those forpharmaceutical products, will be for a non-renewable term of 20 years, as of the date of filing of the
application at the Commercial Registry.
Because of this and in order to ensure that the provision does not give rise to confusion, it will
be repealed by an amendment to the Law on the Promotion and Protection of Intellectual Property.
IV. RESPONSES TO THE QUESTIONS FROM JAPAN
A. C
OPYRIGHT
1. Please explain how the protection is provide d for works, phonograms, performances and
broadcasts from other WTO Members and the Law on Copyright and Neighbouring Rights of
El Salvador (hereinafter referred to as the "Cop yright and Neighbouring Rights Law").  Please
describe the provisions of the Copyright and Neighbouring Rights Law which provide for thenational treatment and most-favoured-nation treatment required by Articles 3 and 4 of the
TRIPS Agreement, as well as Article 9.1 of the Agreement which incorporates Article 5.1 of the
Berne Convention.
Protection of works
The Law on the Promotion and Protection of Intellectual Property protects all literary, artistic
and scientific works, irrespective of their mode or form of expression, their merits or their purpose,
provided that the works are original.  Translations, adaptations, transformations or arrangements of
works, as well as anthologies or compilations of various works or data or other material, includingIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 8
databases in machine-readable or any other form, are also protected.  Where the author is a natural
person, the term of protection comprises that person's lifetime and 50 years counted from the day of
his/her death, for the benefit of the heirs or successors in title;  in the case of an anonymous or
pseudonymous work, whose author has not disclosed his/her identity, the term of protection shall be
50 years counted from the first publication;  where the holder of rights in a work is a legal person, theterm of protection is 50 years counted from 1 January of the year following that of first publication, or
failing that, of the year following the making or disclosure of the work (Article 86(a), (b) and (c) of
the Law on Promotion and Protection of Intellectual Property).
Protection of performances
This Law also protects contracts for theatrical or musical performances to be given over a
specified period or for a fixed number of public performances.  The protection of the rights of
performers is 50 years counted from 1 January of the year following that of the performance in the
case of unrecorded performances, or that of publication, where the performance is recorded on a
sound or audiovisual medium (Article 86(f) of the Law).
Protection of phonograms
Contracts for the inclusion of phonograms under which the author of a musical work gives a
producer of phonograms a non-exclusive authorization against payment to record or fix a work in
order to reproduce it are also regulated.  Such an authorization does not include the right to publicperformance of the work.  Phonogram producers authorized pursuant to a phonographic inclusion
contract have the right to authorize or refuse reproduction of their phonograms, as well as the import,
rental, circulation to the public or other use of copies of their phonograms in any form or medium.
The term of protection of the rights of producers of phonograms is 50 years counted from 1 January of
the year following that in which the sounds incorporated in the phonogram were first recorded(Article 86(e) of the Law).
Protection of broadcasting organizations
Pursuant to the Law on the Promotion and Protection of Intellectual Property, broadcasting
organizations are radio or television companies which transmit programs to the public and their rights
are protected for 50 years counted from 1 January of the year following that in which the broadcast
was transmitted (Article 86(g) of the Law).
National treatment and most-favoured-nation treatment
El Salvador has ratified the Berne Convention and the Rome Convention and, pursuant to
Article 144 of its Constitution, these have automatically become laws of the Republic and prevail over
domestic secondary legislation.
These Conventions were ratified without any reservations whatsoever, consequently the
principles of national treatment and most-favoured-nation treatment established therein are fullyapplied in El Salvador, thus respecting the obligations contained in Articles 3 and 4 of the TRIPS
Agreement, which are also laws of the Republic.
Article 11 of the Law on the Promotion and Protection of Intellectual Property grants national
treatment to "works" published by foreigners in  El Salvador and to works published abroad, in
accordance with the applicable international treaties ratified by El Salvador.
The principles of national treatment and most-favoured-nation-treatment in Articles 3 and 4
of the TRIPS Agreement also have full and automatic effect without any reservations whatsoever, inIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 9
accordance with Article 65 of the Agreement;  accordingly, any right granted by El Salvador to a
Salvadoran citizen or to a citizen of another country must immediately and unconditionally be
extended to the other Members of the WTO.
2. Please explain exceptions or exemptions from the national treatment and most-
favoured-nation treatment under the Copyright and Neighbouring Rights Law, if any, as
permitted by Articles 3 and 4 of the TRIPS Agreement.
El Salvador has not established any exceptions or exemptions from national treatment for
foreigners who publish their works in El Salvador.  The law applies indiscriminately to both
Salvadoran citizens and foreigners.
3. Please explain whether and how El Salvador  provides retroactive protection for works,
phonograms, performances from other WTO Members, as required by Articles 9.1, 14.6 and
70.2 of the TRIPS Agreement, which apply mutatis mutandis  Article 18 of the Berne
Convention.  Please indicate the date to which su ch protection extends back with respect to each
category of subject-matter.
Salvadoran legislation recognizes the principle of copyright protection without the need for
any formality.  Article 96 of the Law on the Promotion and Protection of Intellectual Property
provides that the formalities for the deposit of protected works pursuant to the Law are not
constitutive of rights but are merely of a declaratory nature for the better legal security of the owners
and as a means of proving their rights.  It also states that failure to deposit with the Registry does not
prejudice either the enjoyment or the exercise of the rights recognized by the Law.
Owners of rights therefore enjoy the terms of protection laid down in the Law on the
Promotion and Protection of Intellectual Property in accordance with its Article 86, with the exception
of works which, pursuant to the Law, have become part of the public domain.
Article 183 of the Law on the Promotion and Protection of Intellectual Property also states
that copyright registrations and patents granted under the earlier legislation are governed by the
provisions of that legislation, with the exception of the provisions on action for infringement of rights
contained in the aforementioned Law.
Article 185 of the Law prescribes that the rights regulated in Title II relating to artistic,
literary or scientific property which were not protected under earlier laws because they were not
registered, automatically enjoy the protection granted by the Law on the Promotion and Protection of
Intellectual Property, without prejudice to the rights acquired by third parties prior to the entry into
force of this Law, provided that they relate to uses already made or in the process of being made on
the date on which the Law was enacted.
4. Please explain whether protection of "computer programs" under the Copyright and
Neighbouring Rights Law covers computer programs in both source and object code, as
required by Article 10.1 of the TRIPS Agreement.  Are those computer programs protected as
literary works in accordance with Ar ticle 2(1) of the Berne Convention?
Article 32 of the Law on the Promotion and Prot ection of Intellectual Property states that
computer programs both in source and object codes are protected as literary works, and so enjoy
protection for 50 years as of the date of their first publication or, failing that, of their completion,
pursuant to Article 86(d) of the aforementioned Law.  This is consistent with Article 10.1 of the
TRIPS Agreement.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 10
5. Please clarify whether " database" under the Copyright and Neighbouring Rights Law
includes the compilation of da ta in machine-readable form.  Please explain how the Law
complies with Article 10.2 of the TRIPS Agreement in this respect.
Article 14 of the Law on the Promotion and Prot ection of Intellectual Property states that
compilations of various works, data or databases in machine-readable or any other form constituteoriginal creations and are protected by the Law, thus complying with Article 10:2 of the TRIPS
Agreement.
B. T
RADEMARKS
6. Please explain how the legislation of El Salvador complies with Article 16.1 of the TRIPS
Agreement, which provides that the exclusive right covers use of identical or similar signs for
goods and services that are similar to those in respect of which the trademark is registered.
The Central American Convention for the Protection of Industrial Property, currently in force,
states that the owners of trademarks, trade names and indications or advertising slogans that have
been registered may use, enjoy and dispose of them exclusively and their ownership is acquired in
respect of the products, goods or services for which they have been requested (Articles 5 and 23 of theCentral American Convention).
As a result, Article 10.p of the Convention provides the following:  a ban on registering marks
which, because of their graphical, phonetic or ideological similarity, might be misleading or give rise
to confusion with other marks already registered or in the process of being registered, if it is intended
to use them to distinguish products, goods or services of the same kind.
In addition, Article 9(a) and (b) of the preliminary draft of the Law on Trademarks and Other
Distinctive Signs prohibits the use or registration of an identical sign or a sign similar to a registered
trademark or in the process of being registered in order to distinguish products or services of the same
kind.
Consequently, El Salvador's legislation meets the requirements of Article 16:1 of the TRIPS
Agreement.
7. Please explain how the legislation of El Salvador provides protection of well-known
marks when goods or services are not similar to those in respect of which a trademark has been
registered, as stipulated in Article 16.3 of the TRIPS Agreement.
Neither the Central American Convention for the Protection of Industrial Property nor any
domestic secondary law specifically protects well-known marks;  nevertheless, when the Paris
Convention was ratified it became a domestic law, as provided in Article 144 of the Constitution, and
Article 6 bis of the Paris Convention protects well-known marks, thus complying with the obligation
laid down in the TRIPS Agreement.
Furthermore, the preliminary draft of the Law on Trademarks and Other Distinctive Signs
specifically guarantees full protection of well-known marks.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 11
C. ENFORCEMENT
8. Please indicate the remedies which the judi cial authorities order regarding intellectual
property rights, including injunctions, damages, expenses, destruction or disposal of infringing
goods, materials or implements for their producti on.  Please explain the criteria for and the way
of calculation for deciding the amount of the damages which judicial authorities order theperson who infringes intell ectual property rights to pay to the right holder.
In the case of industrial property (trademarks, trade names and indications or advertising
slogans), precautionary measures can be ordered on the basis of Article 68 of the Central American
Convention for the Protection of Industrial Property, which establishes that once an action for unfair
competition has been initiated the judge or authority before which it is brought may, as long as the
complainant provides security, order the precautionary measures it deems appropriate, including
preventive seizure or confiscation of the infringing goods.
In the case of copyright, Article 91 of the Law on the Promotion and Protection of Intellectual
Property provides that the owner of a right that has been infringed may, upon prior deposit of security
to the infringer, request a judge to take the necessary precautionary measures.  The calculation of
damages for loss of earnings is covered by Article 90, which specifies the criteria to be taken intoaccount.
Any person seeking precautionary measures must make the relevant application within eight
days following the day on which any such measures were ordered, failing which he will be liable for
any damages or prejudice caused.
Article 174 of the Law covers industrial designs and grants similar rights.  Article 173 sets the
criteria to be taken into account when calculating compensation for damages and prejudice resulting
from loss of earnings.  Any person seeking precautionary measures must make the relevant
application within ten days following the day on which any such measures were ordered, failingwhich he will be liable for any damages and prejudice caused.
Judges are empowered to order an infringer to compensate for damages and prejudice caused
by the infringement of intellectual property ri ghts (Articles 2065, et seq. of the Civil Code and
Article 439 of the Code of Civil Procedure, and it includes payment of the cost of the proceedings bythe losing party, whether the complainant or the defendant, and payment of the attorney's fees).  This
is based on Articles 26 and 70 of the Central American Convention in the case of infringement of a
trademark, trade name or indication or advertising slogan, and Articles 90, 172 and 173 for the
infringement of copyright, patents or industrial designs.
In addition, in accordance with Articles 65-71 of the Central American Convention and
provided that commercial proceedings have been initiated, judges may remove from the market the
materials and implements used to produce the infringing goods.  Likewise, for copyright, Article 90
states that the owner of a right may request the removal from the market of the unlawful materials, the
disablement of moulds, plates, printing blocks, negatives and other materials used mainly for the
unlawful reproduction and the removal or keeping under lock and seal of the equipment used for
unauthorized public communication, as well as the destru ction of the unlawful copies.  With regard to
the infringement of patents and industrial designs, Article 172 of the Law provides for requests for the
transfer of the ownership of the objects or means mainly used to commit the infringement and for the
measures needed to prevent the continuation or r ecurrence of the infringement, including destruction
of the means seized.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 12
9. Please indicate titles of laws and regulations and their provisions in which the
suspension of the release of counterfeit tradem ark or pirated copyright goods are prescribed, as
stipulated in Article 51 of the TRIPS Agreement,  please explain types of intellectual property
rights about which the suspension can be ma de upon an application by a right holder.
Article 91 of the Law on the Promotion and Prot ection of Intellectual Property provides that
judges have the power to order a precautionary measure so as to prevent customs clearance of goods
that infringe the copyright of a third party.  Furthermore, Article 174 of the Law provides that an
order may be given for the preventive seizure, withholding or deposit of the infringing goods and of
the means mainly used to  commit the infringement.
Similarly, the Central American Convention currently in force grants the owner of a
trademark the right to require the competent authorities to prohibit the importation or entry of themerchandise or goods involved as long as they continue to display that mark (Article 26(c)).
Article 91(c) of the preliminary draft of the Law on Marks and Other Distinctive Signs gives
the power to prevent customs clearance of goods that infringe a registered mark.
10. Please explain the kind and amounts of crim inal penalties, including imprisonment and
fines, regarding intellectual property rights.  In particular, are the crimes prosecuted only when
the injured party has made a formal accusation?  Please also explain whether penalties are
consistent with Article 61 of the TRIPS Agreement, which requires the penalties to be sufficient
to provide a deterrent, consistently with the level of penalties for crimes of a correspondinggravity.
In accordance with the terms of Articles 90 and 184 of the Law on the Promotion and
Protection of Intellectual Property, right holders are entitled to seek termination of the infringement of
their rights and also compensation for damages in the commercial courts, without prejudice to any
corresponding criminal proceedings.
Furthermore, in criminal terms, offences relatin g to the protection of intellectual or industrial
property are classified as offences that give rise to public action at the request of a private person,
requiring the intervention of the holder of the infrin ged right.  The latter must lodge a complaint with
the Office of the Attorney-General of the Republic  (Article 193.4 of the Constitution) and when the
Office brings the case before the criminal court the interested party must appear as the complainant
before that court (Article 26(9) and (10) of the Code of Criminal Procedure).  Without the
authorization of the injured party, the corresponding criminal action cannot proceed.
Category of Offence and Penalty
Article of the Penal Code Offence Penalty
226 Infringement of copyright and
related rights1-3 years' imprisonment
227 Aggravated infringement of
copyright and related rights3-5 years' imprisonment
228 Infringement of patents 1-3 years' imprisonment
229 Infringement of distinctive
commercial signs1-3 years' imprisonment
230 Commercial breach of trust 6 months' to 2 years'
imprisonmentIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 13
Category of Offence and Penalty
Article of the Penal Code Offence Penalty
231 Revealing or disclosing
industrial secrets6 months' to 2 years'
imprisonment
238 Unfair competition 6 months' to 2 years'
imprisonment
V. REPLIES TO QUESTIONS FROM SWITZERLAND
A. PATENTS
1. The Law on the Promotion and Protection of Intellectual Property of El Salvador
provides in Article 109 that the term of protection for patents for inventions in the field of
pharmaceuticals shall be 15 years only, contrary to a 20-year term of protection for patents for
all other inventions.  Please explain how this provision complies with Article 27.1 of the TRIPS
Agreement providing for patent rights to be enj oyable without discrimination as to the field of
technology and with Article 33 of the TRIPS Agr eement requiring a minimal term of protection
of 20 years.
With the entry into force of the TRIPS Agreement in January of this year, the provision in
Article 9.2 of the Law on the Promotion and Protec tion of Intellectual Property has ceased to be
operative, therefore the term of protection for patents in general will be a non-renewable period of
20 years beginning from the date of filing of the application with the Commercial Registry.
In view of the above and to ensure that this provision does not give rise to confusion, it will
be repealed by an amendment to the Law on the Promotion and Protection of Intellectual Property.
B. PROTECTION OF UNDISCLOSED INFORMATION
2. and 3.  Does your legislation ensure that undisclosed and confidential test data or other data
submitted by an applicant to the responsible State agency in the procedure for market
authorization of a pharmaceutical product is protected against disclosure and against unfair
commercial use by a competitor, for example, by prohibiting a second applicant from relying on
or from referring to the original data of the first applicant when applying subsequently for
market authorization for his own product?  Does  your legislation provide for exceptions to this?
If yes, under what conditions would such exceptions apply?
Article 177.2 of the Law on the Promotion and Protection of Intellectual Property ensures
protection for data submitted to the authorities as confidential under the following conditions:
information that is within the public domain is not regarded as an industrial or commercial secret, but
information furnished to any authority by a person who holds it as an industrial or trade secret is notconsidered as coming within the public domain or disclosed by legal provision when it is supplied  for
the purpose of obtaining licences, permits or authorizations, registration or any other official
documents, and it therefore enjoys legal protection under Article 178 of the Law.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 14
Supplementary question:
Please explain in detail how Articles 177 and 178 of the Law on the Promotion and
Protection of Intellectual Property of El Salv ador grant adequate and effective protection that
corresponds to the special situation and requirements set out in Article 39.3 of the TRIPSAgreement, protecting any undisclosed information against any unfair commercial use and
disclosure in the context of the procedures pres cribed for approval of the marketing of new
pharmaceutical or agricultural products.
Concerning Article 39:3 of the TRIPS Agreement relating to pharmaceutical or agricultural
chemical products, undisclosed information furnished to any Salvadoran authority for the purposes of
approval of the marketing of a pharmaceutical or ag ricultural chemical product by a person who holds
it as an industrial or trade secret is not considered as coming within the public domain and is legally
protected, irrespective of whether or not it is fixed on any physical medium, in accordance with the
second paragraph of Article 177 of the Law on the Promotion and Protection of Intellectual Property,
which specifically provides that:
"Information that is public property, that is obvious to a person skilled in the art or that has to
be disclosed by legal provision or court order shall not be considered an industrial or trade
secret.  Information that is supplied to any authority by a person possessing it as an industrial
or trade secret shall not be considered public property or disclosed by legal provision where
the purpose in supplying it is the securing of licences, permits authorizations, registrations or
any other official enactments."
In addition to the foregoing and in order to ensu re the complete confidentiality of undisclosed
information, Salvadoran legislation lays down the following penalties:
A. Article 180 of the Law on the Promotion and Protection of Intellectual Property states
that any person who, by reason of his work, employment, responsibilities or position,
or in the conduct of his profession or in business dealings, has access to an industrial
or trade secret of whose confidentiality he has been informed must not use it for
commercial purposes of his own or disclose it without any grounds and without theauthorization of the person in possession of the said secret or the authorized user
thereof, otherwise he will be liable for the DAMAGES AND PREJUDICE caused.
B. Article 181 of the aforementioned Law, states that any person who comes into
possession of industrial or trade secrets by reason of contracts with a worker who is
working or has worked, or with a professional, an adviser or a consultant who is
providing or has provided his services, for the benefit of another person shall bejointly liable with the person furnishing the information for the payment of
DAMAGES AND PREJUDICE caused to that pers on.  He shall also be liable for
DAMAGES AND PREJUDICE caused to another person who, by any unlawful
means, obtains information that contains an industrial or a trade secret.
C. Without prejudice to compensation for the aforementioned damages and prejudice,
the Salvadoran Penal Code imposes terms of imprisonment on persons who disclose
undisclosed information by carrying out any of the following offences:
Revealing or disclosing industrial secrets
Article 231.  Any person who reveals or discloses an invention that is the subject of a patent
application or an industrial or trade secret when he is legally or contractually bound toIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 15
maintain its secrecy shall be punishable by a term of imprisonment of six months to two
years.
If he uses the secret for his own benefit, the penalty shall be increased by up to one third of its
maximum amount.
Where the author was an official or public employee and the fact occurred in exercise of his
functions, he shall also be barred from his respective post or employment for a period of six
months to two years.
In addition to the penalties prescribed in the preceeding paragraphs, Article 74 of
El Salvador's Constitution provides that rights of citizenship shall be suspended inter alia  if a
person is formally convicted;  Article 75 of the Constitution also establishes that "persons
convicted of offences" inter alia  lose their citizenship rights.
VI. REPLIES TO THE QUESTIONS FROM THE UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and
most-favoured-nation treatment are provided to nationals of other WTO Members and cite the
relevant provisions of law.
El Salvador's legislation provides adequate and effective protection of intellectual property
rights.  In general, the following are protected:
Law on the Promotion and Protection of Intellectual Property
- Copyright and related rights (artists, performers, phonogram producers and
broadcasting organizations).
- Inventions (including new plant varieties), utility models and industrial designs.
- Industrial or trade secrets.
Central American Convention for the Protection of Industrial Property
- Trademarks, trade names, advertising expressions or slogans, indications of
origin and denominations of origin, and unfair competition.
National treatment and most-favoured-nation treatment
El Salvador has ratified the Berne Convention and the Rome Convention and, pursuant to
Article 144 of its Constitution, these have automatically become laws of the Republic and
prevail over other domestic secondary legislation.
These Conventions were ratified without any reservations whatsoever, consequently the
principles of national treatment and most-favoured-nation treatment established therein are
fully applied in El Salvador, thus respecting the obligations contained in Articles 3 and 4 of
the TRIPS Agreement, which are also laws of the Republic.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 16
Article 11 of the Law on the Promotion and Protection of Intellectual Property grants national
treatment to "works" published by foreigners in El Salvador and to works published abroad,
in accordance with the applicable international treaties ratified by El Salvador.
The principles of national treatment and most-favoured-nation treatment contained in
Articles 3 and 4 of the TRIPS Agreement also have full and automatic effect without any
reservations whatsoever, in compliance with Article 65 of the Agreement;  accordingly, any
right granted by El Salvador to a Salvadoran citizen or to a citizen of another country must
immediately and unconditionally be extended to the other Members of the WTO.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain the manner in which the copyri ght and related rights law of El Salvador
complies with Article 9 of the TRIPS Agreement, which requires that Members comply with
Articles 1-21 of the Berne Convention (1971), except Article 6 bis, since Members do not have
rights or obligations relating to the latter Article under the TRIPS Agreement.
Both Article 9 of the TRIPS Agreement and the provisions of the Berne Convention,
including Article 6 bis, directly constitute laws of the Republic without any reservations whatsoever
and there is no need for additional legislation.
Pursuant to Article 144 of El Salvador's Constitution and Article 2 of the Law on the
Promotion and Protection of Intellectual Property, in the event of a dispute between international
treaties and domestic secondary legislation, the provisions of the former take precedence.
It is important to mention that the moral rights given by Article 6 bis of the Berne Convention
are guaranteed in El Salvador, not only because the Convention is a law of the Republic but also
because since 1993 these and other moral rights have been established and protected under Article 6
of the Law on the Promotion and Pr otection of Intellectual Property.
3. Please explain in detail the manner in which the copyright law of El Salvador protects
computer programs as literary works and provides protection for compilations of data, as
required by Article 10 of the TRIPS Agreement, and cite the appropriate provisions of law.
Article 32 of the Law on the Promotion and Pr otection of Intellectual Property protects
computer programs, both in source and object codes, as literary works with a term of protection of
50 years as of the date of their first publication or, failing that, of their completion, pursuant to
Article 86(d) of the aforementioned Law.
Compilations of various works or data or other materials, including databases in machine-
readable or any other form, which constitute or iginal creations, are protected under copyright,
pursuant to Article 14 of the Law on the Promotion and Protection of Intellectual Property, with thefollowing terms of protection:
- If the author is a natural person, throughout his lifetime and 50 years counted from
the date of his death;
- if the author is anonymous, 50 years from the date of first disclosure and, if
ownership is established, 50 years from the date of the author's death;
- if the author is a legal person, 50 years from 1 January of the year following that of
first publication or of the making or disclosure of the work.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 17
The foregoing is in compliance with Article 10 of the TRIPS Agreement.
4. Article 11 of the TRIPS Agreement require s that WTO Members provide rental rights
for computer programs and cinematographic works.  Please describe the way in which
El Salvador has implemented this obligation and cite the relevant provisions of law.
According to Article 89(g) of the Law on the Promotion and Protection of Intellectual
Property, the performance, dissemination, rental, communication or reproduction of works in any
form and by any means for profit-making purposes without the authorization of the author or his
successors in title constitute infringement of copyright.
Computer programs, audiovisual works, whethe r silent, spoken or musical cinematographic
works, are protected in general under Article 13, and specifically under Articles 25-31 (audiovisualworks) and Articles 32 and 33 (computer programs) of the Law on the Promotion and Protection of
Intellectual Property, in compliance with and without prejudice to the provisions of the TRIPS
Agreement and the Berne Convention.
5. Please describe any special decrees or admini strative orders that have been issued to
ensure that government agencies of El Salvador set an example by using only properly licensed
software in computers used by those government agencies.
The Government of the Republic of El Salvador, as a guarantee of compliance with the Law,
has for over a year been implementing a programme in every government institution under which
there are periodic inspections of all equipment which uses computer programs in order constantly toverify that government employees do not introd uce unauthorized programs.  The Government of
El Salvador ensures that every computer program is lawfully acquired and has the necessary licences.
6. Please describe the terms of protection the copyright and related rights law of
El Salvador provides for various works and related rights, including photographic works or
works of applied art, and cite the relevant provisions of law.
Among the works protected under Article 13 of the Law on the Promotion and Protection of
Intellectual Property are photographic, three-dimensional, applied arts and other works.
Articles 35-38 of the Law also lay down special provisions on three-dimensional works.
Articles 78-85 protect the related rights of performers, phonogram producers and
broadcasting organizations, and the provisions of the Rome and Berne Conventions, together with the
TRIPS Agreement, which have all been ratified by El Salvador, have full effect.
7. Please describe the protection El Salvador's copyright and related rights law provides
for performers, including the term of protection  and the rights acquired, and cite the relevant
provisions of law.
Article 85 of the Law on the Promotion and Prot ection of Intellectual Property provides that
performers or their successors in title have the right to authorize or prohibit the fixing, reproduction or
communication to the public of their performances by any means or process;  they also have the moral
right to have their names or pseudonyms associated with their performance and to prevent any
distortion thereof that might be prejudicial to their honour or reputation.
The term of protection is 50 years as of 1 January of the year following that of the
performance in the case of performances that are not fixed or that of publication where the
performance is recorded on a sound or audiovisual medium, pursuant to Article 86(f) of the Law on
the Promotion and Protection of Intellectual Property.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 18
8. Article 14.2 of the TRIPS Agreement provides that producers of phonograms shall enjoy
the right to authorize or prohibit the direct  or indirect reproduction of their phonograms.
Article 14.2 requires that producers of phonograms have the right to authorize or prohibit the
commercial rental to the public of originals or copies of their phonograms.  Please clarifywhether and how El Salvador's copyright and related rights law implements these obligations.
Even though Article 14.2 of the TRIPS Agreement does not lay down any commitment
regarding the commercial rental of phonograms, we should point out that the right to authorize or
prohibit the reproduction of phonograms, as well as the right of import, rental, distribution to the
public or other use in any form or medium of copi es of phonograms is covered by Article 83 of the
Law on the Promotion and Protection of Intellectual Property.  The reproduction, import or export,
sale or rental of reproductions or copies, either in their entirety or in part, without the consent of the
owner of the rights, including phonograms, constitutes an infringement of rights pursuant to
Article 89(m) of the Law on the Promotion and Protection of Intellectual Property.
C. T
RADEMARKS
9. Please identify in detail the subject-matter that can comprise a trademark under
El Salvador's trademark law.
The Central American Convention for the Protection of Industrial Property lays down the
definition of a trademark and this is supplemented by Article 15 of the TRIPS Agreement, which has
direct and immediate effect in El Salvador.  The legislation protects industrial marks, manufacturer's
marks, trademarks and service marks.
10. Please describe in detail the procedure that must be followed to register a trademark in
El Salvador and describe the rights of the owner of a registered mark.
In Chapter II of the Central American Convention for the Protection of Industrial Property,
the procedure for registering a trademark in general terms is the following:
(a) Filing of an application.  This must meet the requirements laid down in Article 83 of
the Convention and be accompanied by the documentation specified in Article 84
thereof.
(b) Examination of form.  The Registry undertakes an examination of each application in
order to determine whether it includes any of the prohibitions in the law, as
established by Article 91 of the Central American Convention, and if a requirement
has not been met or a document not provided, the interested party is given a period of
15 days to make good the omission.
(c) Examination of novelty.  The Registrar undertakes this examination in order to
determine whether the mark effectively serves to distinguish a product, good or
service and whether it is identical or similar to another being processed, and hesuspends the procedure until the processing or registration of the application has been
completed.  Appeals may be made against the Registrar's decision at this stage of the
procedure.  Articles 94, 158 and 159.
(d) Entry in the Applications Register.  After the aforementioned examination has been
carried out without encountering any obstacle to registration, the Registrar orders theentry in the relevant Register, which constitutes acceptance of the application and
gives rise to priority.  Articles 19 and 95.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 19
(e) Publication.  The Registrar sends a notification to be published three times within a
period of 15 days in the Official Journal at the applicant's cost and in accordance with
the legal requirements.  Article 96.
(f) Opposition.  Following publication, a period of two months is allowed to give any
person who claims a legitimate interest an opportunity to contest the registration and
oppose its granting in accordance with the requirements laid down in Articles 97-100.
If the claim is allowed by the Registrar, it is notified to the applicant, who is given a
period of two months to contest the opposition in accordance with the legal
requirements.  Articles 101-103.  The Registrar accepts or rejects the opposition
within one month following the date on which it was lodged.  Article 104.
(g) Registration decision.  If the period specified expires without any opposition or the
opposition is rejected, the Registrar issues a decision that, subject to payment of the
registration fees, the registration will become effective.  Article 106.
(h) Extension of the registration certificate.  After the trademark has been registered, it is
entered in the Industrial Property Index in accordance with the legal requirements,
and the owner is given a certificate of registration that meets the requirements laid
down in Article 110.
(i) Entry in the Register.  The trademark must be entered in the aforementioned Register
so that it is available to third parties, without it being necessary to meet any other
publication requirements.  Article 111.
11. Please explain whether El Sa lvador's trademark law provides for a means to publish a
trademark either before it is registered or promptly after it is registered so that third parties
may oppose registration if a valid reason exists for doing so.
As part of the trademark registration procedure, the Central American Convention for the
Protection of Industrial Property provides for publication of a notification in the Official Journal three
times within a maximum period of 15 days so that any person who claims a legitimate interest maycontest the application and oppose the grant of the trademark registration, Articles 96-106.
12. Please explain whether El Sa lvador's trademark law presumes a likelihood of confusion
if an identical or similar mark is used on identical or similar goods and services without
authorization of the owner of the registered ma rk and cite the appropriate provisions of law.
The Central American Convention presumes that similarity may give rise to confusion both as
regards products and services, pursuant to the provisions of Article 10.p and Article 94.b.
13. Please describe in detail the manner in which well-known trademarks and service marks
are protected in El Salvador and cite the relevant provisions of law.
El Salvador protects well-known marks in accordance with the provisions of Article 6 bis of
the Paris Convention for the Protection of Industrial Property, which was ratified by El Salvador andhas been a law of the Republic since 19 February 1994, with full, automatic and direct effect.
14. For what period is a trademark registration valid and for what periods can it be
renewed?IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 20
The rights conferred by the registration of a trademark last for ten years and may be renewed
indefinitely for further ten-year periods pursuant to  Article 24 of the Central American Convention for
the Protection of Industrial Property.
15. Please explain whether use is required to maintain a trademark registration in
El Salvador and if cancellation is possible for non-use.  Please describe in detail the
circumstances under which cancellation is possible.
El Salvador's legislation does not contain any provision on use as a requirement or criterion in
order to maintain a trademark registration.
16. Please describe any other requirements that are imposed on the use of a trademark
under El Salvador's law and cite the relevant provisions of law.
As can be seen from the reply to question 15 above, El Salvador's legislation does not regulate
use of a trademark and, consequently, it does not contain any requirements on use.
17. Please describe any conditions imposed on the licensing and assignment of trademarks
and cite the relevant provisions of law.
Under Article 32 of the Central American Convention for the Protection of Industrial
Property, the owner of a trademark may by agreement grant a licence to use the trademark to one or
more persons and the licence may or may not be exclusive or for a particular territory or area;
pursuant to Articles 141-146 of the Convention, licences must be registered.
D. GEOGRAPHICAL INDICATIONS
18. Please describe in detail the manner in which geographical indications are protected
under the law of El Salvador, indicating differences , if any, in the protection given geographical
indications for wines and spirits and those for ot her products.  Provide citations to the relevant
provisions of law.
Geographical indications are protected in accordance with Articles 22 and 23 of the TRIPS
Agreement, Articles 10 and 10 bis of the Paris Convention, which have direct effect in El Salvador,
Articles 10 ñ, q and r, 69 b, g, y, k, 72 and 75 of  the Central American Convention for the Protection
of Industrial Property.
19. Please describe any provisions in El Salvad or's law that ensure that an owner of a
registered trademark or service mark or a we ll-known mark can prevent recognition being
granted to a geographical indication later in time.
Trademarks and geographical indications (indications of origin and appellations of origin) are
governed by the provisions of the Central American Convention for the Protection of Industrial
Property.
According to Article 73 of the Convention, any industrialist, businessman or service provider
established in a particular country, place or region has the right to use its geographical name as an
indication of origin for his products, goods or services.  This provision recognizes the fundamental
right of any producer or businessman to use truthfully and in good faith the geographical name of the
place of his establishment, production site or activ ity in respect of the products, goods or services he
produces or supplies.  This provision also recognizes that, by nature, geographical names have existed
for as long as the place they designate, so they usually existed prior to the adoption of signs by
businessmen for use as a trademark.  A firm may therefore adopt a pre-existing geographic name as aIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 21
trademark, but the trademark of a firm is not usually used as the name of a place, city, region or
country.
A businessman who uses a geographical name as a trademark may not prevent producers and
businessmen associated with that particular place fro m using the name in order to indicate truthfully
and in good faith the origin of their products (or services), in accordance with Article 73 mentioned
above.  Pursuant to trademark law, geographical names may only constitute trademarks when their
association with the product or service they distinguish is arbitrary or fanciful.  If the adoption of a
geographical name as a trademark is descriptive or misleading as regards the place of origin or the
characteristics of the product to which the trademark applies, the name may not constitute a valid
trademark.  It should be noted in this connectio n that Article 10, ñ and q of the Central American
Convention for the Protection of Industrial Property provide that simple indications of origin anddenominations of origin, signs which indicate a fals e origin, nature or quality, may not be used or
registered as trademarks nor as elements thereof.
E. 
INDUSTRIAL DESIGNS
20. Please describe in detail the protection provided for industrial designs under the law of
El Salvador, indicating the period of protection  granted and the procedure for obtaining rights.
Articles 123-131 of the Law on the Promotion an d Protection of Intellectual Property protect
industrial designs, meaning any two-dimensional or three-dimensional forms which, on being
incorporated in a utilitarian product, give it a special appearance and are capable of serving as a
reference or model for its manufacture.
The protection afforded to an industrial design does not exclude nor affect the protection to
which the same design might be entitled under other legal provisions, especially those relating to
copyright.
Protection is acquired by first disclosure of the industrial design in the country or its
registration.
An industrial design must be new and it gives the right to prohibit third parties from
exploiting it.  The owner may take action against any person who, without his consent, manufactures,sells, offers for sale, uses, imports or stocks for such purposes any product that reproduces or
incorporates the protected design or whose appearance gives the same overall impression as the
protected design.
The term of protection is five years from the date of filing of the application, renewable for a
further five years.
21. If there are any limitations on the rights provi ded for industrial designs, please describe
them in detail and cite the relevant provisions of law.
According to Article 127 of the Law on the Promotion and Protection of Intellectual Property,
industrial designs are not protected if they are not considered new, that is to say if they only show
minor or secondary differences in relation to other earlier designs or only refer or apply to anothertype of category of products;  industrial designs whose disclosure would be contrary to public order or
morality are not protected.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 22
F. PATENTS
22. Please confirm that the only exceptions to patentability are those under Article 107 of
El Salvador's Patent Law for discoveries, scientific theories, mathematical models;  surgical,
therapeutic and diagnostic methods, and for inventions that would be adverse to public order or
morality.
The only exceptions to patentability are specified in Article 107 of the Law on the Promotion
and Protection of Intellectual Property.
23. With respect to the exception of patentabil ity for inventions adverse to public order or
morality, please describe in detail the procedure that would be followed and the criteria that
would be considered in making a determination th at a particular invention would be adverse to
public order or morality.  Please provide examples, if possible.
Regarding procedure, all patent applications ar e subject to the same procedure for their grant.
This procedure is laid down in Articles 146, 149 and 152-156 of the Law on the Promotion and
Protection of Intellectual Property and mainly consists of the publication of the application so that
third parties may put forward observations concerning  it, together with an examination of substance.
Any third party may state before the Commercial Registry that the invention applied for is of such anature that its industrial or commercial exploitation would be contrary to public order or morality,
furnishing the arguments and evidence to substantiate the claim.  On the basis of these statements by
third parties or ex officio, the Commercial Registry may notify the applicant that there is an objection
to the patenting of the invention, giving the relevant grounds.  The applicant may contest the
notification, putting forward his arguments, comments and evidence.  The decision by theCommercial Registry granting or refusing the patent is subject to the administrative or judicial appeals
provided in the Law.
The criteria to be taken into account when deciding whether industrial or commercial
exploitation of an invention would be contrary to public order or morality are not in principle laid
down in the legislation.  Justification for refusal of  a patent must necessarily be assessed by the
competent authority on a case-by-case basis according to the particular circumstances, the technology
in question and the standards of morality or public order in the country at the time the case is
examined.
With regard to examples, to date there has been no case of practical application of this
provision so it is not possible to give any examples.  It can be assumed that this provision will not be
used to any greater extent in the future because it is a safeguard to be applied only where necessary to
preserve public order or morality in El Salvador.  It is maintained in the law as a preventive criterion
covered by Article 27:2 of the TRIPS Agreement.
24. Please describe in detail any protection El Salvador provides for plant varieties in
addition to the protection available under its Patent Law and cite the relevant sections of law.
Protection of plant varieties is solely through patents, in accordance with Article 27:3 of the
Law on the Promotion and Protection of Intellectual Property.  There is not at present any additional
legislation.
25. Please describe any provisions contained in the laws of El Salvador that authorize or
provide for the possibility of use of a patent without the authorization of the patent owner and
indicate how each of the requirements of Article 31 is met.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 23
According to Articles 133 and 134 of the Law on the Promotion and Protection of Intellectual
Property, compulsory licences to exploit a patent can only be granted for declared reasons of
emergency or national security and for as long as they persist, provided that they are required to meet
the population's basic needs.  Such licences are neither transferable nor exclusive and are granted by
the competent court, which establishes adequate remuneration according to the circumstances of eachcase, taking into account the economic value of the authorization given to the patent owner and the
way in which the owner is to be paid.
26. Please describe in detail how and in what circumstances in civil proceedings for process
patent infringement the burden of proof is shifted to the defendant to prove that its process is
different to that of the patent owner.
Article 171 of the Law on the Promotion and Protection of Intellectual Property prescribes
that, where a patent protects a process for the making of a new product and the product is made by a
third party, it is presumed, in the absence of proof to the contrary, that the product has been made by
means of the patented process.
G. 
LAYOUT DESIGNS FOR INTEGRATED CIRCUITS (TOPOGRAPHIES )
27. Please describe in detail, including the scope and term, the provisions of El Salvador's
law that provide protection for layout designs of integrated circuits that are registered or have
been commercially exploited anywhere in the world and provide citations of those laws.
The Government of El Salvador has now terminated the draft law regulating all aspects of
layout designs (topographies) of integrated circuits and the legislation will shortly be put before theGeneral Assembly for approval and entry into force.
H. 
PROTECTION OF UNDISCLOSED INFORMATION
28. Please describe in detail the provisions of El Salvador's laws that provide protection for
undisclosed information, as required by Article 39:2 of the TRIPS Agreement, and cite therelevant provisions.
Articles 177-181 of the Law on the Promotion an d Protection of Intellectual Property define
and protect industrial and trade secrets, that is to say, any information that is applicable in industry or
trade, including all kinds of services, which a person maintains confidential and is intended to secure
or maintain a competitive or economic advantage over third parties in the conduct of economicactivities and with regard to which reasonable measures or action have been taken to preserve its
confidentiality and restrict access to it.  Protection is guaranteed whether or not the secrets are fixed
on a physical medium and they do not require registration.
29. Please describe in detail the protection provided for test data regarding pharmaceutical
and agricultural chemical products submitted in order to obtain ma rketing approval in El
Salvador and cite the relevant provisions of the law.
Concerning Article 39:3 of the TRIPS Agreement relating to pharmaceutical or agricultural
chemical products, undisclosed information furnished to any Salvadoran authority for the purposes of
approval of the marketing of a pharmaceutical or ag ricultural chemical product by a person who holds
it as an industrial or trade secret is not considered as coming within the public domain and is legally
protected, irrespective of whether or not it is fixed on any physical medium, in accordance with thesecond paragraph of Article 177 of the Law on the Promotion and Protection of Intellectual Property,
which specifically provides that:IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 24
"Information that is public property, that is obvious to a person skilled in the art or that has to
be disclosed by legal provision or court order shall not be considered an industrial or trade
secret.  Information that is supplied to any authority by a person possessing it as an industrial
or trade secret shall not be considered public property or disclosed by legal provision where
the purpose in supplying it is the securing of licences, permits, authorizations, registrations or
any other official enactments."
In addition to the foregoing and in order to ensu re the complete confidentiality of undisclosed
information, Salvadoran legislation lays down the following penalties:
A. Article 180 of the Law on the Promotion and Protection of Intellectual Property states
that any person who, by reason of his work, employment, responsibilities or position,or in the conduct of his profession or in business dealings, has access to an industrial
or trade secret of whose confidentiality he has been informed must not use it for
commercial purposes of his own or disclose it without any grounds and without the
authorization of the person in possession of the said secret or the authorized user
thereof, otherwise he will be liable for the DAMAGES AND PREJUDICE caused.
B. Article 181 of the aforementioned Law, states that any person who comes into
possession of industrial or trade secrets by reason of contracts with a worker who is
working or has worked, or with a professional, an adviser or a consultant who is
providing or has provided his services, for the benefit of another person shall bejointly liable with the person furnishing the information for the payment of
DAMAGES AND PREJUDICE caused to that pers on.  He shall also be liable for
DAMAGES AND PREJUDICE caused to another person who, by any unlawful
means, obtains information that contains an industrial or a trade secret.
C. Without prejudice to compensation for the aforementioned damages and prejudice,
the Salvadoran Penal Code imposes terms of imprisonment on persons who disclose
undisclosed information by carrying out any of the following offences:
Revealing or disclosing industrial secrets
Article 231.  Any person who reveals or discloses an invention that is the subject of a patent
application or an industrial or trade secret when he is legally or contractually bound to
maintain its secrecy shall be punishable by a term of imprisonment of six months to two
years.
If he uses the secret for his own benefit, the penalty shall be increased by up to one third of its
maximum amount.
Where the author was an official or public employee and the fact occurred in exercise of his
functions, he shall also be barred from his respective post or employment for a period of six
months to two years.
In addition to the penalties prescribed in the preceding paragraphs, Article 74 of El Salvador's
Constitution provides that rights of citizenship shall be suspended inter alia  if a person is
formally convicted;  Article 75 of the Constitution also establishes that "persons convicted of
offences" inter alia  lose their citizenship rights.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 25
30. Please explain whether other applicants fo r marketing approval of versions of a
previously approved pharmaceutical or agricultu ral chemical product are permitted to rely on
data submitted by the earlier applicant.  If so, pl ease explain what period the exclusivity is given
the earlier applicant before such reliance becomes possible.
There are no provisions which allow a third party to use undisclosed information protected by
law without the consent of the person who lawfully possesses the secret or information, nor is there
any provision laying down a term for its protection, so such undisclosed information is protected as
long as it meets the requirements of Article 177 of the Law on the Promotion and Protection of
Intellectual Property.
I. ENFORCEMENT – GENERAL PROVISIONS
31. Please describe briefly how the Government of El Salvador meets the requirements of
TRIPS, Article 41, including paragraphs 1, 2, 3 and 4 thereof.  In particular, please explain how
the laws of El Salvador provide for effective ac tion against infringement of intellectual property
rights, as required by Article 41:1 of the TRIPS Agreement.
See El Salvador's replies in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
32. Please identify which courts have original jurisdiction over intellectual property
infringement cases and which courts have appellate jurisdiction to review their decisions.  What
legal limitations are placed on the ability of a party to have procedural rulings and final
decisions reviewed by the appellate bodies iden tified?  (Article 41 of the TRIPS Agreement).
See El Salvador's replies to questions 1 and 20 in the Checklist of Issues on Enforcement
(document IP/N/6/SLV/1).
J. ENFORCEMENT – CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
33. Please describe the procedures followed by the courts and/or administrative bodies for
notifying defendants that civil judicial proceedings have been initiated against them.  Also
describe the type of information provided in the notice (Article 42 of the TRIPS Agreement).
El Salvador's legislation allows precautionary measures to be adopted inaudita altera parte .
See El Salvador's reply to question 11 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
When a formal complaint is lodged or proceedings are initiated before the courts, the
defendant is notified as follows so that he may make use of the right to defend himself:
- Commercial proceedings:  the complaint is sent to the defendant within three days so
that he may challenge it and this constitutes the notification.  Article 975, Code of
Civil Procedure.
- Criminal proceedings:  if criminal proceedings are initiated, any decisions are notified
within 24 hours of being taken, unless the judge or court decides on a shorter period,
and the decisions are only binding on persons properly notified.  Article 143, Code of
Penal Procedure.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 26
34. Please explain whether parties have the right to be represented by an independent legal
counsel in civil, judicial and administrative in tellectual property cases and whether there are
any limitations on that right.  Please descri be any special requirements concerning mandatory
personal appearances by parties (A rticle 42 of the TRIPS Agreement).
See El Salvador's replies to questions 2, 22 and 23 in the Checklist of Issues on Enforcement
(document IP/N/6/SLV/1).
35. Please describe the requirements a foreign party must meet to initiate a proceeding in
the courts and administrative bodies identified th at are not required of a national or resident of
El Salvador.
See El Salvador's replies to questions 2 and 23 in the Checklist of Issues on Enforcement
(document IP/N/6/SLV/1.
36. Please describe any limitations on a party's ability to substantiate a claim or to present
relevant evidence in civil, judicial and administ rative intellectual property cases (Article 42 of
the TRIPS Agreement).
El Salvador's legislation does not lay down any limitations other than those mentioned in
El Salvador's replies to questions 2 and 23 in the Checklist of Issues on Enforcement (document
IP/N//6/SLV/1.
37. Please describe the mechanisms under El Salvador's laws for identifying and protecting
confidential information in civil, judicial and administrative intellectual property cases(Article 43:1 of the TRIPS Agreement).
See El Salvador's reply to question 4 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
38. Please describe the provisions in El Salvador's laws that ensure that intellectual
property infringement cases are handled in an expeditious manner and that prevent deliberate
delays by the parties to a proceeding.  Under what circumstances are such provisions applied?
See El Salvador's replies to questions 8 and 25 in the Checklist of Issues on Enforcement
(document IP/N/6/SLV/1).
Article 1104 of the Code of Civil Procedure covers appeals by the parties due to delays in the
proceedings.
A court hearing a complaint may reject it if it considers that it is inadmissible pursuant to
Article 197 of the Code of Civil Procedure.  Judges are also particularly careful to put a stop to any
malice by the parties in order to prevent any delaying action, pursuant to Article 1238 of the Code.
If an attorney puts forward a petition or brings a case that is deliberately malicious or
intended to delay or complicate the matter, the judge must immediately report this to the Supreme
Court of Justice so that, if the fact is proven, the attorney can be suspended from practice, pursuant to
Article 1293 of the Code of Civil Procedure.
Lastly, Article 161 of the Code of Criminal Procedure provides that, after expiry of the time-
limit for taking a decision, the interested party may request that it be taken immediately and, if this is
not done, may denounce the delay.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 27
39. Please describe how and under what circumstances judicial and administrative officials
may order parties to produce relevant evidence in civil, judicial and administrative officials may
order parties to produce relevant evidence in ci vil, judicial and administrative intellectual
property cases.  What types of evidence or information may be required to be disclosed prior to
trial and how long does this pre-trial disclosure period generally last?  (Article 43:2 of theTRIPS Agreement).
See El Salvador's reply to question 2 concerning "Mandatory personal appearances" and its
reply to question 3 in the Checklist of Issues on Enforcement (document IP/N/6/SLV/1).
In addition, in connection with evidence, Article 385 of the Code of Civil Procedure specifies
the consequences of failing to reply to questions, as called for by Article 378 of the Code.  The
consequence is recognition of guilt if a person fails to respond to the second summons withoutreasonable grounds, if he refuses to make a statement or swear an oath or if his replies are evasive,
equivocal and inconclusive.
40. Please describe in detail the kinds of action judicial and administrative officials may
take if a party fails to provide necessary information and describe the circumstances underwhich those actions are normally imposed in ci vil judicial and administrative enforcement
actions (Article 43:2 of the TRIPS Agreement).
As evidence is the decisive factor in establishing the truth, it is the responsibility of the party
to furnish the evidence and if this is not done the case will be closed.
Arbitrary acts, that is to say acts committed by officials or public employees in an illegal or
arbitrary manner, molestation or abuse of persons or damage to goods constitute offences pursuant to
Article 320 of the Penal Code and are liable to a term of imprisonment.  Article 321 of the Code
provides for the offence of failure to fulfil his duty if an official or public employee unlawfully issues
a decision, refuses to carry out or delays any act proper to his functions, and it is punishable by finescorresponding to days.
Lastly, the second paragraph of Article 17 of El Salvador's Constitution provides that:"In cases of review in criminal matters, the State shall compensate victims of duly proven
judicial errors in accordance with the law."
41. Please explain whether judges and administra tive officials have the authority to enjoin
(or take equivalent measures) a party from infringing intellectual property rights and to
prevent any infringing goods from entering the cha nnels of commerce.  Please describe in detail
the procedures for issuing such injunctions (Article 44:1 of the TRIPS Agreement).
See El Salvador's reply to question 5 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
42. How long in practice does it generally take to obtain the injunctive relief (or equivalent
measures) from the time of the application to its grant?  Please describe the evidence that must
typically be provided to establish a party's right to  each of the types of relief identified and what
are the conditions imposed on obtaining such relief? (Article 44 of the TRIPS Agreement).
See El Salvador's reply to questions 5, 8, 10, 12, 13, 15 and 17 in the Checklist of Issues on
Enforcement (document IP/N/6/SLV/1).IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 28
43. Article 44:2 provides an exception to the requirement in paragraph 1 for government
use or use by third parties authorized by the government, limiting the remedy for infringement
to payment of adequate remuneration, as prov ided in Article 31(h).  Are there any such
limitations on remedies in the laws of El Salvador?
See El Salvador's reply to question 25 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
44. Please explain whether judicial  and administrative officials have the authority to order a
party found to be infringing to pay the right holder damages adequate to compensate for the
injury caused by the infringement and expenses, including attorney's fees.  Please describe the
factors that are considered when establishing th e amount of damages.  (Article 45 of the TRIPS
Agreement).
See El Salvador's replies to questions 5 and 24 in the Checklist of Issues on Enforcement
(document IP/N/6/SLV/1).
45. Please describe any additional remedies (e.g.  disposal of goods and destruction of
materials and implements used to create infr inging goods) that judicial and administrative
officials may impose in civil judicial and admi nistrative intellectual property cases, the
circumstances under which those remedies will be imposed.  Please describe the factors that are
considered in determining which kind of remedy  to impose.  (Article 46 of the TRIPS
Agreement).
See El Salvador's reply to question 5 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
46. Please explain whether judicial  and administrative officials have the authority to order
infringers to give right holders information on  third parties involved in the production and
distribution of infringing goods or services and their channels of distribution.  Please describethe circumstances under which this authority is exercised.  (Article 47 of the TRIPS
Agreement).
See the reply to question 6 in the Checklist of Issues on Enforcement, replies by El Salvador,
in document IP/N/6/SLV/1 of 13 June 2000.
47. Please explain whether public authorities and officials are exempt from liability for
abuse of enforcement procedures and describe the circumstances in which such limitations do
not apply (Article 48 of the TRIPS Agreement).
No.  See paragraphs 5 and 6 of El Salvador's reply to question 7 in the Checklist of Issues on
Enforcement (document IP/N/6/SLV/1).
Article 310 of the Penal Code also establishes the offence of breach of duty, which imposes a
term of imprisonment on any judge who knowingly takes a decision contrary to the law or based on
false evidence, either for personal interest or for a bribe.
Article 1281 of the Code of Civil Procedure makes judges liable for faults committed when
handling the proceedings.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 29
K. ENFORCEMENT – PROVISIONAL MEASURES
48. Please identify the provisional measures available under the law of El Salvador to
prevent an infringement of any intellectual prop erty right occurring and to preserve relevant
evidence in regard to an alleged infringement (Article 50 of the TRIPS Agreement).
See the replies to questions 5 and 10 in the Checklist of Issues on Enforcement, replies by
El Salvador, in document IP/N/6/SLV/1 of 13 June 2000.
49. Please briefly describe:
(A) Any requirements to establish "irreparable harm" to the right holder
(Article 50:2 of the TRIPS Agreement);
(B) factors considered by judicial and ad ministrative authorities in determining
whether a "demonstrable risk of eviden ce being destroyed exists" (Article 50:2
of the TRIPS Agreement).
See El Salvador's reply to question 5 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
Moreover, judges are responsible for errors committed as regards the security of proceedings,
pursuant to Article 1281 of the Code of Civil Procedure.
50. For each kind of intellectual property that is the subject of TRIPS, please describe the
nature of the evidence right holders must presen t to establish ownership of the intellectual
property in question and that their rights are being infringed (Article 50:3 of the TRIPS
Agreement).
Any type of evidence, including documents, for example, registration certificates, patents,
filing of rights in works and testimony, where applicable.
51. Please explain whether right holders must provide security or equivalent assurance to
protect the defendant and to prevent abuse.  Please describe how the amount of the security is
determined (Article 50:3 of the TRIPS Agreement).
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
52. Please briefly describe the following:
(A) The authority judicial and administra tive officials have to adopt provisional
measures in audita altera parte and what measures may be adopted in audita
altera parte  (Article 50:4 of the TRIPS Agreement);
(B) does the exercise of the authorities identified above require a court order
(Article 50:4 of the TRIPS Agreement)?
See El Salvador's reply to question 11 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
53. For each of the measures identified above, de scribe generally how long it takes from the
application for such relief until its grant.IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 30
See El Salvador's reply to question 13 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
54. Please describe the procedures for notifying affected parties after execution of the
provisional measures and initiating a review (Article 50:4 of the TRIPS Agreement).
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
In the case of trademarks, emblems, samples and slogans imported from abroad, a request
may be submitted in writing to a judge for a judicial order to the Customs authority of the Republic to
prevent the import of foreign products which unlawfully use the trademark;  there can be no appeal
against such decisions but interested parties may bring an action in summary proceedings, in
accordance with Article 584 of the Code of Commerce and Article 9 of the Law on Commercial
Procedures.
55. Please describe the kind of information required from applicants to identify goods
which are the subject of provisional measures (Article 50:5 of the TRIPS Agreement).
As Article 50:5 of the TRIPS Agreement has direct and automatic effect and is a law of the
Republic, the competent judge may require this information in accordance with the domestic
legislation.
56. Please describe the nature of the proof required from applicants before such provisional
measures are granted for each type of intellectual property protected under the TRIPS
Agreement (Article 50 of the TRIPS Agreement).
Any type of proof is admissible, depending on each case, including certificates of filing,
registration and patents.
57. Please describe the procedures for revoking or cancelling provisional measures in
judicial administrative enforcement actions if proceedings leading to a decision on the merits of
a case are not initiated within a reasonable time.  Please explain what constitutes a "reasonable
time-period" to initiate proceedings (Article 50:6 of the TRIPS Agreement).
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
In addition, Article 154 of the Code of Civil Procedure provides that after seizure the person
concerned must submit his request within eight days and if he does not do so the seizure will be
revoked at the request of the defendant, without any other formalities.
58. Please explain whether judicial  and administrative officials have the authority to order
that the defendant be compensated for any injury  suffered as a result of a lapse or revocation of
the provisional measures.  (Article 50:7 of the TRIPS Agreement).
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 31
L. ENFORCEMENT – BORDER MEASURES
59. Please identify the competent authority in El  Salvador authorized to accept applications
for a request to suspend release of suspected infringing goods (Article 51 of the TRIPS
Agreement).
Judges receive requests suspend customs clearance and issue the necessary orders, which are
carried out by the Directorate-General of Customs Revenue.
60. Please describe the procedures for protecting intellectual property at the border (e.g.
application, required information, process and time-frame for notifying applicant of acceptance,
effective period for border enforcement action) (Article 52 of the TRIPS Agreement).
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
61. Please describe any procedures available to stop the export of infringing goods and
goods shipped in transit.
Regarding export of goods which infringe rights, see El Salvador's reply to question 5 in the
Checklist of Issues on Enforcement (document IP/N/6/SLV/1), in the section on Copyright and relatedrights.
There is no relevant provision applicable to goods in transit.
62. Please explain what evidence constitutes prima facie infringement for purposes of
Article 52 of the TRIPS Agreement.
Any type of evidence is admissible, depending on the case, including certificates of filing,
registration and patents.
63. Please verify that the competent authoritie s identified above are empowered to require
security or equivalent assurance (Article 53 of the TRIPS Agreement).
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
64. Please identify the forms of intellectual pr operty, if any, subject to the provisions of
Article 53:2 of the TRIPS Agreement.
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
65. Please describe the procedures for notifying applicants of the suspension of release
(Article 54 of the TRIPS Agreement).
Release at the customs is suspended without notifying the infringer, but the person requesting
the measures must make a formal application within the time limits mentioned in El Salvador's reply
to question 12 in the Checklist of Issu es on Enforcement (document IP/N/6/SLV/1).
 In the case of trademarks, emblems, samples and slogans, import may be prohibited and the
judge's decision is not subject to appeal, although interested parties may bring actions in summaryIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 32
proceedings, in accordance with Article 584 of the Code of Commerce and Article 9 of the Law on
Commercial Procedures.
66. Please identify the fora in which an appl icant/party may initiate proceedings on the
merits that will allow customs authorities to ho ld the goods beyond ten working days (Article 55
of the TRIPS Agreement).
The time-limits for suspending customs clearance are laid down in the Law and are subject to
submission of the relevant application.  If an application is not made within the time-limits laid down
in the Law, the goods can be cleared.
See El Salvador's reply to question 12 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
67. Please explain whether judicial  and administrative officials have authority to order the
applicant to pay the importer, consignee or owne r compensation for injury caused by wrongful
detention or through the detention pursuant to Article 55 (Article 56 of the TRIPS Agreement).
Compensation for damages and prejudice has been dealt with in the replies to questions above
in this document.
68. Please explain the procedures followed to al low right holders an opportunity to inspect
suspect goods that have been de tained by customs authoritie s (Article 57 of the TRIPS
Agreement).
The provisions in Article 57 of the TRIPS Agreement apply directly and supplement the
relevant domestic legislation.
69. Please explain whether and in what ci rcumstances the competent authorities in
El Salvador are empowered to act ex officio and, if so, the enforcement action that may be taken(Article 58 of the TRIPS Agreement).
Any action for infringement of intellectual property rights is initiated upon the request of the
interested party.
70. Please describe the remedies for infringing goods (i.e. destruction, disposal or both)
(Article 59 of the TRIPS Agreement).
See El Salvador's reply to question 5 in the Checklist of Issues on Enforcement (document
IP/N/6/SLV/1).
71. Please clarify whether de minimis imports are excluded  from the border measures under
the law of El Salvador.  What constitutes a de minimis  import?  (Article 60 of the TRIPS
Agreement).
See El Salvador's reply to question 15 in the section on "Imports excluded from the
application of border measures" in the Checklist of  Issues on Enforcement (document IP/N/6/SLV/1).IP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 33
M. ENFORCEMENT – CRIMINAL MEASURES
72. Please explain in detail the steps being taken to ensure that no unnecessary delays occur
in acting on criminal complaints filed by interested parties, carrying out a variety of
procedures, requesting warrants from judges and judges' delays in granting them.
Furthermore please explain if there are any efforts under way by the enforcement authorities toprovide time-limits or guidelines for certain stages of the criminal investigation process.
El Salvador's legislation on criminal matters and criminal procedures was recently completely
revised so as to guarantee the due process of law, the right to a hearing and to ensure the principle of
prompt and comprehensive justice.
Accordingly, the procedures to be followed when investigating offences have been radically
altered and have become more flexible and speedier mechanisms, without putting at risk thefundamental rights of persons, particularly the right laid down in Article 11 of El Salvador's
Constitution, which states the following:
"No person may be deprived of the right to life, liberty, property and possessions, nor any
other of his rights, without being given a hearing and being convicted in accordance with thelaw, nor may any person be judged twice for the same offence."
73. Please explain whether and under what circumstances seizure, forfeiture and
destruction of infringing goods and any materials and implements are available as remedies in
wilful trademark counterfeiting or copyright piracy cases and describe the conditions underwhich such penalties would be imposed (Article 61 of the Agreement).
See El Salvador's replies to questions 21 and 24 in the Checklist of Issues on Enforcement
(document IP/N/6/SLV/1).
74. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout design, and trade secret
enforcement for each of the years 1998 and 1999, including the number of cases filed,
injunctions issued, infringing products seized, cases resolved (including settlement), and the
amount of damages awarded.
There are no registers or methodology that enable this information to be provided.
75. Please provide statistical information related  to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1998 and 1999, including the
number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that the criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
There are no registers or methodology that enable this information to be provided.
76. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in El Salvador, particularly initiatives related to criminal
enforcement.
The Office of the Attorney-General of the Republic is the competent authority for bringing
criminal action, either ex officio or at the request of a party, in connection with offences and is
responsible for monitoring the investigation.  It has re-established a special unit for offencesIP/Q/SLV/1, IP/Q2/SLV/1,
IP/Q3/SLV/1, IP/Q4/SLV/1
Page 34
committed against intellectual property rights and this unit has recently been re-organized under a
decentralization programme to be carried out in two stages:  the first stage will consist of establishing
four regional offices to cover the eastern, western and central areas of El Salvador during the year
2001;  subsequently, during the second stage, 18 regional and subregional units will be established
throughout El Salvador.  The objective is to reinforce the fight against piracy and any infringement ofintellectual property rights thr oughout the whole of El Salvador.
__________