WORL D TRAD E
ORGANIZA TIONIP/N/6/C OL/1
29 September 2000
(00-3959)
Council for Trade -Related
Aspect s of Intellec tual Prope rty Right sOriginal: Spanish
CHECKLIST OF ISSUES O N ENFOR CEMENT1
Respons es from Colombia
Introdu ctory Sta temen t
Intellectual prope rty regulations in Colombia are gove rned at Andean level by
Decision 344/93 and Decision 351 of the same year. Copy right matters are governed by Law 44
of 1993 and Law 2 3 of 1982.
Decision 344 is consistent with the provisions of the TRIPS Agre ement, since it was
negotiated after 1992.  Th e Ande an co untries a re currently in the proc ess o f amen ding Decision 344 to
bring it into l ine with the standard s ofthe TRIPS Ag reement.
Decision 344 lacks clarity in its interpretation of some topics, such as used patents. In this
connection, the Higher Council forForeign Trade decided not to grant patents for second use, a
position upheld by Colombia vis-à-vi s the Andea n cou ntries.
Regarding patents for essential drugs as defined by the World Heath Organization, Colombia
complies with WHO regulations by not granting patents for such products. At the same time, patent
rights are available in the field of biotechnology.
The provisions relating to marks go beyond those of theTRIPS Agreement, and industrial
secrets ar e also p rotected.
New enforcement measures have been implemented in the civil and criminal field for the
protection of intellectual prope rty ass ets.
Adequate protection is still not available in the following areas, although this situation will
be reme died by the plann ed amen dment to Decision 344:
- Integrated circuits;
- industrial designs (p eriod of validity);
- appar el (pr otection of co pyright or indu strial prope rty rights);
- compulsory licenc es.
1Document IP/C/5.
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Finally, i t should be pointed out that the Congr ess of the Republic recently appro ved Law 603
of 27 July 2000 amending Article 47 of Law 222 of 1995. This legislation require s the mana gers or
administrators of trading compa nies or civil law partnerships to submit a management report dealing
inter aliawith the state of their compliance with intellectual property and copyright rules. Thelaw
also empower s the Colombian tax authorities to verify the state ofcompanies ' compliance with
copyright rule s so as to pr event violation of those rules lea ding to tax evasion.
Among the enforceme nt obligations contained in the TRIPS Agreement, Article 41
parag raph 1 envis ages theobligation to establish expeditious remedies unde r national law in order to
preve nt infringements a nd rem edies which c onstitute a deterr ent to furthe r infringements.
_________ ______
Civil and adm inistrative proc edure s and r emedies
(a) Civil judicial procedure s and remedie s
1. Specify th e cou rts which ha ve ju risdiction ove r IPR infringemen t cases.
Copyright
The municipal civil courts have sole jurisdiction over civil proceeding s concerned with the
payment of fees for the public pe rformanc e of wo rks and the o bligations incumbent on the director s or
manager s ofentities or establishments where musical works are performed, unde r Article 163 of
Law 23 of 1 982.
The municipal civil courts have original jurisdiction over minor disputes relating to
(copy right and related) rights recognized in Law 23 of 1982 (Article 242), which arenot within the
purview of the administrative authorities.
The circuit civil courts have original jurisdiction over major disputes conce rning copyright
and related rights unde r Article 242 of Law 23 of 1982, which do not fall within the purview of the
administrative authorities. They also have original jurisdiction over expropriation proced ures in
respect of p roprietary rights to a work.
Industrial pr operty
Pursua nt to Article 17 of the Code of Civil Procedu re, the specialized circuit civil courts have
original jurisdiction over proceedings relating to "patents, industrial designs, mark s, signs and trade
names an d other industrial prope rty assets", which are not assigned to the administrative authorities or
the administrative courts.2
The same courts hear applications for review lodged against decisions delivered by them.
The higher district courts3hear appe als against such decisions andappeals against decisions refusing
leave to appe al.
2Given the fact that the district civil courts specializing intrade matters have not yet been set up by the
correspon ding body, the jurisdiction assigned to them is exercised by the existing circuit civil courts. (Supre me
Court of Justice, Civil Cassation.  Or der of 25 June 1992.  Re portin g Judge Edua rdo Ga rcía Sarimiento.)
3Article 26, C ode of Ci vil Procedu re.
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More over, the circuit civil courts and the Supe rvisor y Authority forIndustry and Trade have
preve ntive jurisdiction to decide on unfair comp etition issues in accordanc e with the provisions of
Law 256 of 1996 and Law 446 of 1998, when the correspon ding proceeding s have been brought
before them.  It sh ould be pointed o ut that decisions on unfair competition issues, hand ed down by the
Superviso ry Authority for Industry and Trade, in the exercise of jurisdictional functions, are not as a
rule subject to judicial review, save in the event that patently illegal actions are involved, in which
case an ap peal fo r protection against su ch de cisions sh all lie.
2. Which person s have standing to assert IPRs ? How may they be repre sented? Arethere
requirement s for mandato ry per sonal appea ranc es be fore the cour t by the right holder?
Which pe rsons hav e standing to a ssert IPRs?
- Authors, as signee s and h olders of related rights o r their representative;
- owners o f registrations o f mark s, commer cial logos and appellations of o rigin;
- owners o f trade name s and c ommercial signs;
- owners o f patents fo r invention and utility models;
- owners o f registrations o f industrial designs;
- licensees and a ssignee s of the foregoing.
It is important to point out that, while applicants for registrations of marks, commercial logos,
appellations of origin and industrial designs , or for patents for invention or utility models, have an
expectation of success which is realized only through thegranting of the right by the Supervisory
Authority for Industry and Trade, they may institute procee dings for unfair competition based on bad
faith evidence d by copying or counte rfeiting and the resulting possibility of consume rs being mislead
or de ceived.
How may they be r epresented ?
- Individually
In this conne ction, the Code o f Civil Procedur e provides as follows:
"Article 63. Right of repres entation. Persons required to appear in the proceedings shall do
so through an accredited lawyer, except in cases wher e the law allows their direct
intervention."
Unfair competition claims submitted to the Supervisory Authority for Industry and Trade
constitute the exception to this rule and may be lodged directly by the intere sted party in exercise of
the right of petition enshrined in Article 23 of the Political Constitu tion and Article 9 of the
Administrative Li tigation Code, without the need for legal rep resentation.
More over, with regard to personal attenda nce, the Code of Civil Procedur e provides as
follows:
"Article 101. Amended. D.E. 2282/89, Article 1, 51. Admissibility, content and proced ure.
In the case of ordinary and summary proceedings, in the absence of rules to the contra ry,
where the principal claim and any counter -claim are contested, the judge shall summon
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plaintiffs and defendants to appear personally, with or without an authorized representative,
for the purpose of conciliation hearings, legitimizat ion (saneamiento ), a decision on
preliminary objections and d etermination of the disp ute."
(…)
"When on the second oc casion e vidence of force majeur eis submitted to the effect that one of
the parties is entitled to appear at the new date or is domiciled abroad, the hearing shall
proce ed with his/her authoriz ed representative, who shall have the right to conciliate, admit
facts a nd discontinue the p roceedings."
(…)
- Collectively
Andean Decision 3 51 of 1993 p rovide s as follows:
"Article 49. Collect ive management compa nies shall be authorized, unde r the terms of their
own statutes and of the contr acts that they conclude with foreign entities, to exercise the
rights entrusted to them for administration and to assert those rights in administrative and
judicial proceedings."
Are there requirements for mandatory personal appearances before the court by the right
holder?
There are no provisions requiring the holde r of intellectual property rights to appear in person
before the judicial or administrative authorities concerned. On the other hand, in such cases, the
perso n concerned must always be represented by a lawy er, except in the case of unfair competition
claims lodged with the Supervisory Authority for Industry and Trade, where they may also appea r in
perso n to submit the corr esponding claim and fo r the pu rpose of other actions within the procee dings.
3. What authority do the judicial authoritie s have to order, at the reques t of an opposing
party, a party to a proc eeding t o produc e eviden ce which lies within in its control?
The Code o f Civil Procedu re provides:
"Article 283. Admissibi lity of disclosure. A party which seeks to use original private
documents or copies thereof , which are in the possession of anothe r or a third party, shall
apply for their disclosu re to be orderedat the stage of calling eviden ce. The said party may
also request that one of the parties or a third party produ ce a certified copy of a public
document in his/her possession if the original is unavailable or cannot be foun d and it was not
possible fo r the said p arty to pr ovide a certified co py."
Similarly, Article 288 provides that the partial disclosure of the trader's books and papers,
which bear a necessary relationship to the purpose of the proceedings, may be order ed ex officio or
ex parte .4
4In line with Article 6 5 of t he Commercial C ode.
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Article 2855of the same statute provide s that, if the party ordered to make disclosu re objects
to doing so, the court may assess the grounds for such objection and, if it does not find them justified,
shall consider as established the facts which the party requesting disclosure intend ed to prove, unless
the submission of evidenc e by deposition is not admissible in respe ct of such facts, in which case the
objection shall be counted against the party by which it was made. The article in question also
provides that the same procedure will be followed when aparty which has not filed an objection fails
to produc e the docume nt, unless it establishes timely justification for such failure and subsequently
produc es the d ocument when called upon to do so by the court.
Similarly, Article 244 provides as follows: "Admissib ility of examination. For the
verification or clarification of facts pertaining to the proceeding s, the judicial examination of
perso ns, plac es, objects or d ocuments may be ordered ex officio or at the request of a party.
When the proceedings includ e a judicial examination carried out as an advanc e meas ure
involving a hearing of all the parties, no further determination of the same points may be
ordered, u nless c onside red a dvisable by the court for clarification pur poses.
The court may refuse to order the examination if it considers that the testimony of experts is
sufficient to establish the facts, or that the examination is made unnecessary by theexistenc e
of other evidenc e in the proceedings; it may also postpone the decision on such evidenc e
until the other evidence relating to the same facts has been examined, and in that case, if the
period for the presentation of evide nce has expired, it shall examine the evidence during the
period stipulated in Article 180.  No app eal shall lie against such decisions o f the co urt."
4. What mean s exist to identify and protect confidential informa tion brough t forward as
evidence?
The Code o f Civil Procedu re provides as follows:
"Article 127. Examination of the files.  The files may only be examined by:
1. The pa rties;
2. the accr edited lawyers;
3. duly authorized agents of the latter, but only in relation to matters in which they
intervene;
4. office rs of the co urt;
5. civil servants by reason o f their duties;
6. perso ns autho rized b y the cou rt, fo r teaching o r scientific rese arch pu rposes.
As long as any notification to be effected personally to a party or his/he r representative
remains pending, neither the forme r nor the latter, nor an agent ofthe latter, may examine the
proce edings until such n otification has bee n effected ."
In positive law, there are rules dealing with information which is not confidential in nature
and is ac cessible to the public.6Moreover, Article 61 of th e Commercial Code states that a merch ant's
5In co nformity with Article 67 of the Com mercial Code which pro vides: "if the trader does not submit
the books and papers ordered to be produced, conceals any ofthem or obstructs their examinatio n, the facts
alleged against him/her by the opposing party shall betaken tobe established, if deposition is admissible for
those facts" (…).
6For example, books and archives contained in the Commercial Registry, in accordance with
Article 26 of the Com mercial C ode.
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books and papers may not be examined by persons other than their owner s orthe persons authoriz ed
by the latter, exce pt by virtue o f an o rder by the competent authority.
Furthermor e, in respect of information provided as evidence and involving a trade secret,
Article 73 of Decision 344 is applicable.
At the same time, the law establishes mechanisms for the protection of confidential
information, by prohibiting its disclosure and providing for the punishme nt of conduct which
infringes the right to keep such information confide ntial. Article 16 of Law 256 of 1992 describe s as
unfair the "disclosu re or exploitation of industrial secrets or any other type of busines s secrets without
authorization from the holder, to persons legitimately granted accessbut subject to an obligation to
exercise reserve". Further, pursuant to Article 38 of Law 200 of 1995, failure to perform official
duties, the abuse or impro per exercise of rights or functions orenga gement in prohibited conduct
constitutes a disciplinary offence on the part of civil serva nts, giving rise to the imposition of the
corresponding san ctions.
5. Describe the remedie s that may be order ed by the judicial authorities and crite ria,
legislative or jurisp rudential, fo r their use :
- Injunc tions;
- damages, including recove ry of pro fits, and exp enses , including attorn ey's f ees;
- destru ction orother disposal of infringing goods and mate rials/imp lements for
their produ ction;
- any othe r remedie s.
Injunctions
In the context of proceedings concerned with copy right and related rights, the court may, in
addition to other measur es, order penalization of the infringing activity.
- Legislation on unfair competition
Inasmuc h as violation of industrial prope rty rights may involve misleading acts7, deception8
and/or exploitation of the reputation of others9, which constitute unfair comp etition under the terms of
Law 256 of 1996, such violation is punishable by means of the corresponding remedies provided for
in the above-me ntioned law.
Article 20 of Law 256 of 1996 regulates actions that may be brought (before the competent
courts10or the Supe rviso ry Authority for Industry and Trade, in accordance with the provisions of
Articles 143 and 144 of Law 448 of 1998) as a result of condu ct constituting unfair competition. The
law states that such actions may be of two kinds: declar atory actions to obtain a conviction, involving
a req uest that the acts performed be declared unlawful by the court and that the infringe r consequently
7Article 10, Law 2 56 of 1996.
8Article 11, Law 2 56 of 1996.
9Article 15, Law 2 56 of 1996.
10Article 17 ofthe Code of Civil Procedure provides that the specialized circuit civil courts have
original jurisdiction over proce edings relatin g to "pate nts, industrial designs, marks, commer cial signs and trade
names and other industrial property assets", which are not assigned to theadministrative authorities or the
administrative courts, and that the precautio nary measures provided for in Articles 678, 681, 682 and 690 of the
Code of Ci vil Procedu re may b e requested fo r the p urpose of preventin g continued violation of such rights.
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be ordered to terminate the effects produced by those acts andprovide compen sation for the injury
cause d; and preventive actions or proceedings for interdiction, whereb y the court is requested to
preve nt the performan ce of an act of unf air competition that has not yet been carried out or to prohibit
the act even thou gh it has not yet ca used any injury.
- Prohibition on the use o f a mar k, logo, trad e name or comme rcial sign
Under the terms of Articles 607 and 609 of the Commercial Code, a party injured by the use
of a mark, logo, trade name or commercial sign, may apply to the circuit civil courts to prevent such
use and claim the corresponding damag es in an action which, if successful, entails the relevant
prohibition of use and o rder to pay d amages.
Damages, including r ecovery o f profits, and expenses, including attorney 's fees
The claim for damages may form part of a declar atory civil action, pursuant to Articles 242
and 243 of Law 23 of 1982. Although Article 45 of the TRIPS Agreement is covered by Section 2
("Civil and administrative procedur es and remedies"), it should be pointed out that the criminal law
also provide s for the possibility of obtaining compensation for damag e caused by an infringement of
copyright, which is classified as an offence. Indeed, Article 13 of the Code of Criminal Procedur e
establishes the restor ation of rights as one of its guiding principles. Under this Article, the judicial
authorities shall, wherev er possible, adopt the measu res necessary to ensure cessation ofthe effects
produc ed by perpetration of the punishable act and a return to the status quoante, sothat the violated
rights are restored.
Andean Decision 3 51 of 1993 p rovide s as follows:
"Article 57.  The competent national authority may likewise orde r the f ollowing:
(a) Payment to the owner of the infringed rights of adequate compens ation or
indemnification for damag e and injury sustaine d as a result of the inf ringement".
The same And ean De cision 351 o f 1993 also p rovides:
"Article 57.  The competent national authority may likewise orde r the f ollowing:"
(…)
"(b) That the infringer shall bear the cost of the proceedings incurred by the owner of the
infringed right".
At the same time, the Code of Civil Procedu re provides:
"Article 304.  Amended.  D.E. 2282/89, A rticle 1 para graph 134. Content of the judg ement.
(…)
The part of the judgement containing the verdict shall be placed under the heading
"Admin istering justice on behalf of the Republic of Colombia and by authority of the law"; it
shall contain specific and clear decisions on each of the claims made, any pleas which call for
decision, the costs and damages to be borne by the parties and their authorized
representatives, and other subje cts on which a decision is require d unde r the terms of this
Code."  (No add ed emph asis in the text).
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Article 571 of the Commercial Code, in accordance with the abov e-mentioned provisions of
Decision 344 of th e Commission of the Ca rtagena Ag reeme nt, provide s that the owner or licens ee of a
patent, utility model, industrial design, mark, logo, trade name or comme rcial sign, may institute an
action in damages for their unlawful use, without the need to request the correspondin g precautionar y
measur es, or in ca ses whe re such me asures have been refused.
More over, the costs relating to the proceeding s (stamp duties, fees for officers of the court,
formalities and legal age ncy11)12must be order ed ex officio by the cou rt against the losi ng pa rty.
Destruction or othe r disposal of inf ringing good s and mate rials/implements for their prod uction
Law 44 of 1 993 p rovides as follows:
"Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks,
negatives, tapes, covers or labels shall be subject to judicial inspection with the assistance of
the expe rt, and once shown to be illegal by this means, shall be destro yed bythe criminal
investigation authorities, in the presen ce of the court officer, with notification to the defen ce
and the pa rty claiming damages."
"Article 56. Impounded goods intende d directly or indirectly for the production,
reproduction, distribution, transpo rt or marketing of illegal copies shall be attached or seized
ex of ficio, and following valuation, those that are not to be destroy ed shall be awarde d under
the adverse judgement to the parties injured by the punish able act, by way ofdamage s, or
shall be put up fo r auction for that pu rpose."
Bearing in mind that there is no exhau stive list of the precautionary measures that may be
reque sted in the courseof civil proceedings , application may be made for the implementation of
precautionary measures which, while not expressly provide d for in civil legislation, are not excluded
thereby.  T hey include the following:
Confiscation13of the implements and effects used to commit a fraudulent punish able act or
derived from its perpetration and not available on the open market, which shall be placed under the
control of the State prosecuting authority or the entity appointed by the latter, unless the law requir es
that they be destro yed in accordanc e with the provisions of Article 338 of the Code of Criminal
Proced ure.
The new Code of Criminal Procedur es provides for the confiscation14of products or
merchan dise, publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes,
11Legal agenc y refers to fees forlegal representation … they constitute consideratio n for the expenses
incurred by the party in the judicial defence of his/her interests … The order for costs does not necessarily
correspon d to thefees actually paid by the successful party tohis/her representative". Constitutional Court,
Judgement C-53 9 of28 Jul y 1999. Reporting Ju dge E duard o Cif uentes Muñ oz.
12Paragraph 2, Article 3 93, Code of Civil Proced ure.
13Article 338 of the Code of Criminal Proce dure provides that, if payment for damages has not been
effected orguaranteed, where an orde r for such payment is applicable, the court officer may order seizure of the
implements or effects used for perf ormance of the fraudulent punisha ble act or derived from its perpetratio n, for
purposes of app ropriate c ompe nsation.
14Article 67 of the C ode o f Criminal Proced ures, Law 6 00 of 2000.
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cover s orlabels seiz ed in the investigation of intellectual property offences and, provided that they are
shown to be illegal, for their destru ction in accor dance with the provisions o f Article 67.
Confiscation of substan ces, appliance s and other objects intended for the performan ce of acts
connected with the description of goods with distinctive marks which are misleading in respect of
their origin or content15, in accordance with the provisions of Article 4316of Decree 1355 of 1970 and
Article 42 which provides that, if the act is performe d by traders personally or throug h the action of
perso ns in establishments owne d by them, the closure of the establishment conce rned for up to
six months shall be ord ered.
Confiscation of mate rial intended for the perpetration of the infring ement, or which are the
subject of the infringement, may be requested in proceedings brought before the circuit civil courts
and the Supe rviso ry Authority fo r Ind ustry a nd Tr ade, o n the gr ounds that, although provision is made
for this meas ure unde r criminal and police legislation, its applicat ion may be requested in civil
proce edings sinc e no exhaustive list exists of the precautionary measu reswhich may be requested.
6. In what circums tances, if any, do judicial autho rities have the autho rity to orde r the
infringer to inform theright holder of the identit y of third persons involved in the produ ction
and distribution of the goods or services found to be infringing and of their chann els of
distribution?
There areno statutory provisions entitl ing a judicial authority to order an infringe r to provide
information relating to the identity of third parties involved in the production or distribution of goods
or services found to be infringing, but this information may be obtained through the examination of
evidence and questioning ex parte in civil procee dings orthrough preliminary investigation in
criminal procee dings, if the n ecessary coo peration can be secured.
It is worthy of note, howeve r, that the criminal law provides for reduced senten ces forpersons
who effectively collaborate with the courts, inter aliaby contributing to the success of investigations
to identify the perpetr ators o f oraccessories to o ffences;  contributing to the dismantling or weakening
of criminal organizations or to the capture of one or more of their membe rs; collabor ating in the
effective prevention of offences or in the reduction of offences already committed or in progress;
informing on leade rs of criminal organizations and at the same time providing conclusive evidence of
their resp onsibility;  and identifying the sources of finance for criminal orga nizations.17
The Code o f Criminal Proced ure contains the following provisions:
"Article 25. Duty to report offences. Any person resident in Colombia and aged over 18
must report to the autho rities punishable acts which they know to have been committed and
which call for investigation ex o fficio.
15The aforementione d conduct constitutes a specific violation affecting the national econom y, as
provide d in Article 4 1 ofDecree 5 22 of 1971.
16Article 194 of Decree 1355of 1970 states with respect to confiscated goods that their sale by public
auction orhanding over to a public welfare institution must be ordered, unless they belong toa third party not
involved in the facts constituting the offence, in which case they must be hande d over to that party. The same
Article provides that, inthe case of bevera ges, foodstuffs and provisions in general that arein bad condition,
they must be destroyed by the police in t he presence of thei r owner .
17Article 3269A, Code of Criminal Pr ocedure .
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A public serva nt who gains lea rns by any me ans o f the commission o f a punishable act calling
for investigation ex officio shall without delay initiate the investigation if he/she is competent
to do so; otherwise, he/she shall immediately bring the act to the attent ion of the competent
authority."
The new Code of Criminal Procedur e (Law 600 of 2000 ), which will enter into force on
25 July 2001, provide s as follows in this connection:
"Article 27. Duty to report offences. All perso ns must report to the autho rities punishable
acts which they know to hav e been committed and which call for investigation ex of ficio."
"A public servant who learns byany means of the commission of a punishable act calling for
investigation ex officio shall without delay initiate the investigation if he/she is competent to
do so; otherwise, he/she shall immediately bring the act to the attention of the competent
authority."
7. Describe provisions relating to the indemnification of defend ants wrongfully enjoined.
To what extent are public auth orities and/or officials liable in such a situation and what
"remedial measures" are a pplicable to th em?
Any defendant who is erroneou sly or wrongfully made the subject ofa court injunction
(e.g. p ayment of damage s) may claim a miscarriag e of justice byinstitut ing proce edings for direct
compensation18, and se ek app ropriate indemnification for injury resulting from the undu e payme nt.
More over, pursuant to the constitutional principle19to the effect that public servants are liable
to the authorities for infringements of the Constitution or laws or for failing to act or acting ultra
vires in the exercise of their functions, in the event that they fraudulently20or wrong fully apply the
law to the detriment of one ofthe parties, they may be guilty of breach of official duty21and may
conseq uently be liable to the cor responding c riminal and disciplinary pro ceeding s.
Article 413 of Law 600 of 2000 increases the monetary fine of fifty (50) salary units provided
for in the c riminal statute in force, by a mar gin of b etween fifty (50) and two hund red (200 ) months of
the statutory minimum wage in force, and increases the standard minimum three-yea r disqualification
from the exercise of rights and functions to a minimum of five (5)years and a maximum of
eight (8) ye ars.
18Article 86, Administrative Litigation Code.
19Article 6, Political Constitution.
20Article 77, Admi nistrative Litigation Code. "Without prejudice to the liability incurred by the State
and the local and regional or decentralized entities, or by private entities which perform public functions, civil
servants shall be liable for a ny damage the y cause b y serious ne gligence o r wro ngful conduct in the performance
of their duties."
21Article 149, Criminal Code: "Active breac h of official duty. A public serva nt who issues a patently
unlawful decision or ruling shall be liable to impriso nment for three (3)to eight (8) years, a fine of fifty (50)
monthly units of thestatutory minim um wage in force andforfeiture of rights and public functions for the same
period as the penalty im posed.
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8. Describe provisions gove rning the length and cos t of proceedings. Provide any available
data on the a ctual dura tion of p roceedings and their co st.
According to a report by the Colombian Society of Autho rs and Compos ers (SAYCO) and the
Colombian Book Publishers ' Asso ciation:
- Civil proceedings for infringement of copy right and/or related rights: average
duration three years;  co st between US$1 million and US$2 mil lion.
- Criminal proceedings forinfringement of copyright and/or related rights: average
duration fou r years;  cost between US$1. 5 million and US$4 mil lion.
- Applications for provisional measu res forinfringeme nt of copyright and/or related
rights: duration two to six weeks from the date of the application; cost between
US$300,000 a nd US$500, 000.
(b) Administrative procedur es and remedies
9. Reply to the above questions in relation toany administra tive procedure s on the merit s
and remedies that may result from these proc edure s.
Article 267 of the Administrative Litigat ion Code provides as follows:
"Article 267. Unregulated matters. In matters not cover ed bythis Code, the Code of Civil
Proced ure shall be followed insofa r as it is compatible with the nature of the proceedings
applicable in the administrative courts."
Administrative authority responsible for processing the registration and deposit of industrial prope rty
rights
Since enforcement procedur es aremeant to permit effective action against any act of
infringement of intellectual prope rty rights, in accordance with the provisions of Article 41 of the
1995 Agre ement between WIPO and WTO, provision must be made within this type of procedure for
the possibility of challenging acts which violate property rights through conduct originating even as
early a s the stage of processing o f an application for registration.
The administrative procedure for the registration of marks and patents cond ucted by the
Superviso ry Authority for Industry and Trade normally consists of three rulings which may be
reduc ed to one or two, asfollows: a substantive ruling is issued, either granting or refusing the
application, and fu rther d ecisions a re delivered in the event that applications for review and/or appe als
are lodg ed, whe re admissible, by the party challenging the original decision.
In addition, direct revocation of administrative industrial prope rty decision s by the
Superviso ry Authority for Industry and Trade may, wher e appropriate, be requested in accordance
with the provisions of Article 69 o f the Administrative Lit igation Code.
Following complet ion of the administrative stage or the stage of application to the
Superviso ry Authority for Industry and Trade, a party seeking to challenge the final decision may
apply to the administrative court – the Coun cil of State – in order to obtain a favou rable ruling for
repeal of the administrative decision, by bringing actions to establish nullity or absolute nullity and to
restor e rights, as provided in Article 113 ofDecision 344 of the Commission of the Cartage na
Agreement and Article 85 of the Administrative Litigation Code, respe ctively.
IP/N/6/COL /1
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Which persons have standing to assert intellectual property rights? How may they be
represented?
Applicants for and holde rs of industrial property rights who seek to oppos e the granting of
rights to third parties may apply to the administration directly or through a duly accredited
representative, in accor dance with the provisions o f Article 63 of the C ode o f Civil Procedu re.
Are there requirements for mandatory personal appearances before the court by the right
holder?
There areno provisions requiring the holde r of or applicant for industrial property rights to
appea r personally before the administrative court – the Supe rviso ry Authority forIndustry and Trade.
However, as a rule, for the purpose of appearing before the courts (Coun cil of State), the person
conce rned must be represented by a duly accredited representative, in accordance with the provisions
of Article 63 of the C ode o f Civil Procedu re.
What authority do the administrative or judicial authorities have to order, at the request of an
opposing pa rty, a p arty to a p roceeding to pro duce evidenc e which lies within i ts control?
Pursua nt to Article 283 of the Code of Civil Procedu re, a party which seeks to use documents
in the posses sion of theother party shall apply fortheir disclosu re to be ordered at the stage of calling
evidence. Similarly, Article 288 provides that partial discovery of the books and papersof a trade r
which bear a necessary relationship to the subject of the proceedings may be ordered exofficio or at
the requ est of a party.22
Article 28523of the same statute provide s that, if the party ordered to make disclosu re objects
to doing so, the court shall assess thegrounds for such objection and, if it does not find them justified,
shall consider as established the facts which the party requesting disclosure intend ed to prove, unless
the submission of evidenc e by deposition is not admissible in respe ct of such facts, in which case the
objection shall be counted against the party by which it was made. The Article in question also
provides that the same procedure will be followed when aparty which has not filed an objection fails
to produc e the docume nt, unless it establishes timely justification for such failure and subsequently
produc es the d ocument when called upon to do so by the court.
What means exist to identify and protect confide ntial information brought forward as
evidence ?
We r efer to the points made in the reply to que stion 4 in this document.
Describe the remedies that may be ordered bythe judicial authorities and criteria, legislative
or jurispr udential, for their use.
The Council of State monitors the lawfulne ss of decisions taken by the Supe rviso ry Authority
for Industr y and Trade and may accordingly uphold them as long as they are in conformity with the
law, or decla re them to be totally or partially void if they are contrary to the law. In such cases, the
administrative authority may be ordered to act in a specified mann er, forexample by cancelling
22In line with Article 6 5 ofthe C ommercial Code.
23In conformity with Article 67 of the commercial code which provides: "if the trader does not submit
the books and papers ordered to be produced, conceals any ofthem or obstructs their examinatio n, the facts
alleged against him/her by the opposing party shall betaken tobe established, if deposition is admissible for
those facts" (…).
IP/N/6/COL /1
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registration of a mark or certification of a patent, carrying out a new study on the registrability of a
sign or the p atentability of an invention, etc..
Provisional measures
(a) Judicial measur es
10. Describe the types of provisional measures that judicial authoritie s may order, and the
legal basis for such au thority.
Andean Decision 3 51 of 1993 p rovide s as follows:
"Article 56. The competent national authority may order the following precautionary
measur es:
(a) Immediate cess ation of the unlawf ul activity;
(b) the seizur e, impoundment, sequestration or preventive attachment, as appropriate, of
copies p roduc ed in violation of any o f the rights rec ognized in this decision;
(c) the seizur e, impoundment, sequestration or attachment of the appa ratus or materials
used for the commission of the unlaw ful act.
Preca utionary measures shall not be applicable to a copy acquired in good faith for
exclusively pe rsonal u se."
In connection with authorization to apply forprecautionar y measu res, Decree 26624of 2000
provides as follows:
"Article 77. Preventive attachment. Article 224 of Law 23 of 1982 is amend ed to read as
follows:
Article 224. Authors, publishers, producers of phon ograms , computer programs or
audiovisual works, performers, broadcasting organiz ations or their successors in title, and
anyone responsible for their legal or conventional representation, may apply to the court for
the prev entive attachment of:
1. Any work, p roduction, publication and copies;
2. the proceeds of the sale or rental ofsuch work s, productions, publications or copies;
and,
3. the proceeds of the sale or rental oftheatrical, cinematogr aphic, musical and other
similar shows or entertainments."
Law 23 of 1 982 p rovides as follows:
"Article 245. The persons referred to in the first subp aragraph ofthe preceding Article may
reque st the court to prohibit or suspend the performan ce or display of a theatrical, musical or
cinematographic work and of similar works that areto be performed or displaye d in public
without the neces sary authoriz ation of the c opyright owne r or owner s."
24Decree 26 6 of 2000, ame nding Decrees 215 0 and 1122.
IP/N/6/COL /1
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Law 44 of 1 993 p rovides:
"Article 54. The law enforcement autho rities shall put a stop to the illegal activity by means
of:
1. Suspension of the inf ringing activity;
2. seizure of illegal copies, moulds, plates, printing blocks, negatives, carrier media,
tapes, covers, diskettes, telecommunication equipment, machine ry and other elements
intended fo r the pro duction or reproduction of illegal copies or their ma rketing;
3. immediate closure of the establishment, if the premise s concerned are open to the
public, and su spension or ca ncellation of the oper ating licence."
Law 44 of 1 993 p rovides:
"Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks,
negatives, tapes, covers or labels shall be submitted for judicial inspection with the assistance
of the expert, and once they have been shown by these mean s to be illegal, shall be destr oyed
by the criminal investigation authorities, in the presen ce of the Court office r, and with
notification to the defence and the p arty claiming damage s."
Similarly, Law 44 of 1 993 p rovides as follows:
"Article 56. Impounded goods intende d directly or indirectly for the production,
reproduction, distribution, transpo rt or marketing of illegal copies shall be attached or seized
ex officio, and following valuation, those that are not to be destroy ed shall be award ed under
the adverse judgement to the parties injured by the punish able act, by way ofdamage s, or
shall be put up fo r auction for that pu rpose."
The Code o f Criminal Proced ure provide s asfollows:
"Article 52. Seizure and attachment of goods. In the decision imposing the impoundment
measur e, or subsequently, the prose cutor or the court shall order the seizur e and preventive
attachment of good s that are the property of the accused, in a quantity deemed sufficient to
guara ntee payme nt for the injury cau sed, and s hall appoint a custodian."
(…)
"If no goods are specific ally known to exist, or the attache d good s are not sufficient in
quantity, the party claiming damages may report the existenc e of goods at any time and the
court officer shall order the seizur e and attachment in the amount deemed necessary, subject
to deposit of a security. The security shall be cancelled once the claimant pays the value of
the injury caused by the precautionary measures,or remits the monetary worth of the security
ordered by the cou rt or that of the said injury, whiche ver amount is less."
(…)
The new Code of Criminal Procedur e (Law 600 of 2000 ), which will enter into force on
25 July 2001, provide s as follows in this connection:
"Article 60. Seizure and attachment ofgood s. At the time of the decision in which an
impoundment measure is ordered, or subsequently, the court officer shall order the seizur e
and attachment of goods that a re the p roperty of the ac cused.IP/N/6/COL /1
Page 15
In the event that it is not necessa ry to resolve the legal situation, the court office r, subsequent
to the laying of charges (vinculación ), shall ex officio or at the reque st of the complaining
party order the seizu re and attachment of goods owned by theaccused when the evidence
referred to in Article 356 of this Cod e is taken in the p roceedings.
Seizure and attachment ofthe good s shall be ordered in an amount sufficient to guarantee
payment for the injury caused, subject to the requirement of lodging a security in accord ance
with the rules laid down in the Code of Civil Procedu re. This decision shall take the form of
a writ of enf orcement.
Both the application and the order to impose and implement substantive precautionar y
measur es shall be treated as confidential until they are implemented and give rise to the
opening of a record se parate from the main proc eedings.
"Once the seizur e andattachment has been orde red, the court officer shall appoint a custodian
and conduct the subsequent procedure in accordanc e with the relevant rules contained in the
Code of Civil Proced ure.
Wher e the measures affect immovable prope rty held or occupied by the accused, it shall be
left in his posses sion by way of free security, subje ct to his undertaking to surrender it to the
custodian or to any party specified by the court officer if anadvers eruling is issue d against
him.
A decision to revo ke precautiona ry mea sures is ap pealable d elayed e ffect.
Parag raph. In proceedings where the injured parties are minors or persons lacking legal
capacity, the public prosecutor may request the seizu re and attachment ofgood s belonging to
the accused under the conditions set out earlier in this Article, except for the obligation to
provide s ecurity."
Preca utionary measures of an evidentiary nature, concer ned with the need to preserve
evidence that may be destroyed or simply disapp ear,would unde r Colombian civil procedu ral
law be cove red by the possibility of requesting and examining adva nce evidenc e, as regulated
by Articles 294 et seq. of theCode of Civil Procedu re, including the evide nce referred to in
Article 300 set out below.
In this conne ction, the Code o f Civil Procedur e provides as follows:
"Article 300. Amendment. D.E. 2282/89, Article 1, paragraph 131. Judicial examinations
and expert appraisals. With or without person al service to the oppo sing party, a reque st may
be made for the production of advance eviden ce through the judicial examination of persons,
places, objects or documents that are to be the subject of proceeding s, wher e a well-fou nded
fear exists that the pas sage of time may alter their status o r make it difficult to identify them."
Pursua nt to Articles 568, 581 and 597 of the Commer cial Code, taken together with
Articles 56, 71, 122 and 128 of Decision 344 of the Commission of the Cartagen a Agreement, the
owner or licensee of a patent, utility model, industrial design, mark, logo, appellation of origin, trade
name or commercial sign, may request the competent courts to impose the precautionary measures
neces sary to protect their industrial prope rty rights, when ever such rights are exercised unlaw fully or
infringed.IP/N/6/COL /1
Page 16
Such precautiona ry measures, in accordance with the above-me ntioned Article 568, may
involve requiring infringer s to provide security as a guarantee for refraining from performan ce of the
acts alleged against them, seizur e of articles manu factur ed in violation of the industrial property right
and prohibition on advertising them, attachment of machin ery or materials used to manu factur e the
articles infringing the industrial property right, or any other equivalent measu re. The precautionary
measur es provided for in Articles 678, 681, 682 and 690 of the Code of Civil Proced ure includ e
seizure and attachment of goods, whethe r ornot subject to registration, entry of the claim in the
official list and seizur e and attachme nt of f unds, among othe r things.
The abov e-mentioned measures may also be requested in the course of proceedings brought
before the competent courts or the Superviso ry Authority for Industry and Trade on the ground s of
unfair competition or infringement of indu strial prope rty rights.
1. In what circums tances may su ch measu res b e ord ered inaudita altera parte?
The Code o f Civil Procedu re co ntains the following provisions o n this subject:
"Article 327. Amendment. D.E. 2282/89 Article 1, paragraph 154. Implementation and
notification of precautionary measures. Precautionary measures shall be implemented
immediately, prior to notification to the opposing party of the order by which they are
imposed. If they were imposed prior to the proceedings, the party concerned shall be notified
on the day o n which he/she appears in the proceeding s or acts in them or signs the appropriate
submission."
"Letters and documents for implementation of the above -mentioned measures shall be sent to
the interested party only following notification of the order bywhich the claim was allowed
or the writ of ex ecution was iss ued."
Article 690. Amendment. D.E. 2282/89, Article 1, paragraph 346. Precautionary
measur es in ordinary proceedings. The rules set out below shall be applied in ordinary
proce edings.
1. In the order allowing a claim which deals with title or another indep endent right in
rem over movable or immovable property, either directly or as a conseque nce of a
separate claim or incidentally to such claim, or with a comp rehensive group of assets,
de facto or de jure, at the request of the plaintiff, the court shall order the following
precautionary mea sures:
(…)
(b) Attachment of movable property, appointment of a custodian andindication of the
date and time of the procedure, which may be cond ucted prior to notification to the
respo ndent ofthe order allowing the claim if so reque sted by the plaintiff, who in
order to have themeasu re impose d shall furnish a security to guara ntee anydamage
that might be caused ther eby".  ( No added empha sis in the t ext)
Preca utionary measures may be ordered by the competent courts or theSupe rvisory Authority
for Industr y and Trade only at the request of a party in civil proce edings, that is to say in cases of
infringement or u nfair competition.
IP/N/6/COL /1
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12. Describe the main procedu res for the initiation, orde ring and maintenan ce in force of
provisional measures, in particular relevant time-limits and safeguards to protect the legitimate
interes ts of the defendan t.
In this conne ction, Law 23 o f 1982 provide s as follows:
"Article 247. The measu res referred to in Articles 224 and 245 shall be ordered immediately
by the court, provided that the applicant lodges sufficient security to guarantee the damage
that might be caused thereby to the organize r or manage r of the theatric al, cinematographic or
musical event or entertainment, and submits concise evidence of the right relied upon. Such
measur es may be ordered by the municipal or district court ofthe place where theevent or
entertainment is organize d, asa preventive measure, even if they are not competent to hear
the case. The event or entertainment shall be suspen ded with no right of appe al; in all other
respects the r elevant rule s shall be a pplied."
Similarly, Law 23 of 1 982 p rovides:
"Article 249. Anyone who exercises the remedies provided for in the preceding Articles shall
not be required to submit with the claim evidence of legal capacity or of representation in the
proce edings."
Again, the Code of Civil Procedur e prescribes the following:
"Article 678. Categories, quantity and time-lim it for lodging security. Security ordered to be
lodged unde r this Code may be in the form of money, secured assets, bank drafts or pape r
issued by insurance companies or credit agen cies legally authorize d to enga ge in this type of
operation. If the c ourt co nsider s an expe rt opinion neces sary to fix the amou nt of the security,
it may so orde r and the expenses shall be bo rne by the pa rty re quired to furnish the security.
The decision bywhich the lodging of a security is ordered shall specify its amount and the
time-li mit for its deposit, where not provide d for by law. If it is not furnished in good time,
the judge shall decide on the effects of such failure in accordanc e with the provisions of this
Code.
Cash se curities shall be p aid into the judicial deposit account of the c ourt co ncerned.
Any security already furnished may be replace d by acash deposit paid into the judicial
account or by any of the means of payment referred to in the first subparagraph, if the court
consider s that it offer s an equivalent gua rantee and facility of settlement."
The Commercial Code p rovides as follows:
In the course of the precautionary measu resprocedure referred to in Article 568 of the
Commercial Code, the owne r of an industrial property right may request the court to adopt
approp riate precautiona ry meas ures to prevent infring ement of his/he r rights. To that end,
summary evide nce must be produced of the infringement and a security must be provided to
guara ntee compe nsation for any injury that may be suffered by the alleged infring er or third
parties.
In submitting the claim for unfair competition referred to in Law 256 of 1996 or earlier
legislation, the owner of the industrial property rights may apply to the competent court or theIP/N/6/COL /1
Page 18
Superviso ry Authority for Industry and Trade to order urgent precautiona ry meas ures25
(which may be impos ed within 24 hours of the submission of the application) in cases of
grave imminent danger.
Without prejudice to the abov e-mentioned urgent precautionary measures, ordina ry
precautionary measures may also be requested with a view to ordering provisional cessation
of the act o f unfair comp etition, among other things.
During industrial prope rty proceedings brought before the competent courts, which are not
conce rned with the performance of acts ofunfair competition, the plaintiff may request that
precautionary mea sures be ord ered to pr event injury o r forestall continued injury.
13. Describe provisions gove rning the length and cos t of proceedings. Provide any available
data on the a ctual dura tion of p roceedings and their co st.
See the r eply to question 8.
(b) Administrative measures
14. Reply to the above qu estions in relation to any administra tive provisional measur es.
Proced ures relating to precautiona ry meas ures are dealt with in civil and criminal
proce edings. (Law 44/93, A rticle 54/44)
However, Article 267 of the Administrative Litigat ion Code provide s that "in matters not
cover ed by this Cod e, the Code o f Civil Procedu re will be followed insofa r as it is compatible wi th the
nature o f proceedings und er the ju risdiction of the administrative courts."
Special  requirement s relat ed to borde r measu res
15. Indicate for which goods it is possible to apply for thesusp ension by the customs
authorities of the release into free circulation, in particular whether these procedur es are
available also in respec t of goods which involve infringemen ts of intellectu al proper ty rights
other than counte rfeit trademark or pirated copyrigh t good s as defined in the TRIPS
Agreement (footno te to Article 51). Specify, together with relevan t criteria, any import s
excluded from the application of such procedur es (such as good s from anothe r member of a
customs union, goods in transit or de minimis imports). Do the procedure s apply to imports of
goods put on the marke t in anothe r coun try byor with the consent of the right holder and to
goods de stined f or ex porta tion?
According to Administrative Instruction 0022 of 1998 of the National Taxation and Customs
Directorate (DIAN), good s for which it is possible to apply for the suspe nsion by the customs
authorities of the release into free circulation are goods protected by copy right and related rights, in
particular cassettes and comp act discs, and phonogr ams, videog rams, softwa re and cinematogr aphic
works in gen eral.
This procedure is not applicable to the entry of goods which does not constitute an
international trade trans action (e. g. pa sseng ers' personal luggage ).
25Article 31, Law 256 of 1996.
IP/N/6/COL /1
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Pursua nt to the right of importation recog nized in Article 13, subparagraph (d), of Andean
Decision 351 of 1993, a copyright owner has the right to prevent the importation into the territory of
any member country of the Andean Community of copies made without the authorization of the right
holder. Conv ersely, it is not possible to oppose the impo rtation of copies that have been reproduc ed
in another co untry un der an autho rization from the right holder.
The procedu re enshrined in the above-mentioned administrative instruction is applicable to
both import and expo rt transa ctions.
16. Provide a description of the main elemen ts of theproc edure s relating to the suspension
of the relea se of goods by customs authorities , in particular the competen t auth orities
(Article 51 ), therequiremen ts for anapplication (Article 52) and various requirement s related
to the dura tion of suspension (Article 55). How have Articles 53 (securit y or equivalen t
assuran ce),56 (indemnification of the importe r and of theowner of the good s) and 57 (right
of inspection and information ) been implemented?
When the customs autho rity, in the exercis e of its functions, finds good s that are thesubject
of a complaint or reliable evidenc e of pirating, these facts shall be brought to the attention of the State
prose cuting authority in acco rdance with the following proce dures:
At the place of arrival: Cargo consisting of goods protected by copyright and related rights,
in particular cassettes, compact discs and, more generally speaking, phonog rams, videograms
(softwa re) and cinematog raphic works, shall be consider ed to be at high risk for the purposes of
parag raph 3 ofAdministrative Order 001of 1992. In such cases, account shall be taken of the status
of importers by determining whether they are firms with standing in the sector or whethe r they are
recog nized a s regular customs us ers,in the cas e of leg al per sons.
In addition, where a formal complaint has been made that the goods arepirated or there is
evidence of that fact, they shall be detained as a precautionary measure with a view to placing them at
the disposal of the State p rosecuting authority.
In such cases,the official shall draw up an official recor d of the facts, specifying that the
goods h ave b een plac ed at the dispo sal of the State p rosecuting authority.
In the customs wareh ouse: At the time of receipt of the import decla ration in the customs
warehou se or the Customs Administration, as the case may be, and before it is stored in the
computerized customs record s, arequest will be made for the presentation, in addition to the
documents referred to in Article 32 of Decree 1909 of 1992, of the autho rization of the copyright
owner or of thedocument establishing the legitimacy of the goods ' origin. In the event of failure to
present such documentation, or ifit is alleged that these requir ements have not been fulfilled in the
country of purchase, the goods will be detained as a precautionary measure, with a view to placing
them at the disposal of the State prosecuting authority. Where the warehous e is an approved auxiliary
warehou se, the Cu stoms Administration or the Taxation and Customs Directorate shall be informe d, if
possible by telephon e or by fax, for the purpose of effecting detention of the goods. In such cases, the
import declaration shall not be stored in the compute r records and the official who detains the goods
shall be required to draw up an official record of the fact, indicating that the goods have been placed
at the disposal of the State p rosecuting authority.
Wher e a complaint has been made that the goods are pirated or there is presumptive evidence
that this is so, they shall be detained as a precautionary measure and place d at the dispos al of the State
prose cuting authority. In such cases, the area official of the Customs Administration or the Taxation
and Customs Director ate shall draw up an official record of thefacts, specifying that the good s have
been plac ed at the dispo sal of the State p rosecuting authority.
IP/N/6/COL /1
Page 20
In the context of inspe ction operations: Inthe course of inspection operations, including
customs transit inspections, the prosecuting authority shall also be informe d of theseizu re of good s of
foreign origin which, in addition to the grounds for such seizu re, arepresumed or have been reported
to be pirated. In such cases,the process ofdefinition of the legal situation will continue until it is
concluded.
Wher e good s have been disemba rgoed before the date of issue of this instru ction, it will be
noted in the subsequent inspe ction process that the Ande an declaration of value include d the value of
licence fees and charges, i.e. royalties paya ble on importation, and that in the final analysis they form
part of the customs value decla red a s the ba sis of assessment.
Destruction of impounde d good s: Once the correspo nding administrative ruling has been
made final, the good s referred to in this instruction, whether abandon ed or impounded, will be
destroye d if ther e is evidenc e of their being pir ated.
The foregoing means that no sale, donation or assignment of this class of goods is possible,
not only becau se of the ve ry natu re of pirated me rchandise, b ut also because this measur e is consistent
with the provisions of Article 55 o f Law 44/93.
17. Describe provisions gove rning the lengt h and cos t of proceedings. Provide any available
data on the actual dura tion of proceedings and their cost. How long is the validity of decisions
by the c ompeten t authorities for the suspen sion of the r elease o f good s into free circulation?
Note: The private sector associations have been consulted with a view to obtaining this
information.
18. Are compet ent authoritie s required to act upon their own initiative and, if so, in what
circumstanc es?  Ar e there any spe cial provisions applicable to e x officio action?
The customs authority is obliged to carry out the aforementioned procedu re when, in the
exercise ofits functions, it comes across goods that are the subject of a complaint or reliable evide nce
of pirating.
The procedure underAdministrative Instruction 002 of 1998 provides for action to be taken
ex officio by the customs authorities, as well as for cases where a complaint has been made about the
infringing nature of the g oods.
19. Describe the remedie s that the compe tent autho rities have the autho rity to orde r and
any crite ria regulating their us e.
In ac cordance with the proced ure referred to above, infringing goo ds may b e detained in order
to be placed at the disposal ofthe State prosecuting autho rity and, in the case ofgood s that have been
abandon ed or impounded, once the corresponding administrative decision has become final, they may
be destr oyed if the re is e vidence that they arecounte rfeit.
IP/N/6/COL /1
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Criminal procedures
20. Specify th e cou rts which ha ve ju risdiction ove r criminal acts o f infringemen t of IPRs.
At the investigative stage of pre-trial proceeding s, Article 67 of the Code of Criminal
Proced ure provide s that it is the respon sibili ty of the State prosecuting authority to direct, conduct and
coordinate the criminal investigation. This provision is taken up in Article 26 of the new Code of
Criminal Procedur e (Law 600 of2000 ) which will come into effect on 25 July 2001 . It should be
pointed out that a specialized unit within the State prosecuting authority deals with offences against
copyright and related rights.
At the trial stage, the municipal criminal courts have original jurisdiction in copyright
infringement cases, where theamount does not exceed 50 months ofthe minimum wage. The circuit
criminal courts hea r such ca ses at se cond instanc e.
In copyright infringement cases wher e the amount involved is higher than 50 months of the
minimu m wage, jurisdiction at first instance is exercised by the circuit criminal courts andat second
instance by the high er district cou rts.
The Criminal Division of the Supreme Court of Justice has jurisdiction over special appeal
proce edings onpoints of law, in respect of judgeme nts delivered in copy right infringement
proce edings.
Jurisdiction at the trial stage is exercised by the circuit courts at first instance, the highe r
district courts at sec ond instanc e and the S upreme Court of Justice in appeal proceedings to set aside a
judgement.
21. In respectof which infringemen ts of which intellectual prop erty right s arecriminal
procedur es and p enalties a vailable?
Infringements ofcopy right and related rights are sanctioned under Articles 51 and 52 of
Law 44 of 1 993, which read as follows:
"Article 51. A prison sentence of two (2)to five (5) years and a fine of five (5) to
twenty (20) monthly units of the minimum statutory wage shall be incu rredby:
1. Anyone who pu blishes an unpublished literar y or artistic work, or part thereof, by any
means, without the prior exp ress authorization of the right holder.
2. Anyone who enters a literary, scientific or artistic work in the copyright register, in
the name of a person other than the tr ue author, or with altered or deleted title, or with
altered, distorted, modified or mutilated text, or with falsification of the name of the
publisher or the produce r of phon ograms , cinematogr aphic work s, videog rams or
software.
3. Anyone who in any manne r or by any means reproduces, dispose s of, abridges,
mutilates or transforms a literary , scientific or artistic work, without the prior express
authorization of its owne r.
4. Anyone who reproduc es phonograms, videog rams, softwar e and cinematogr aphic
works without the prior express authorization of the owner, or transports, store s,
preserves, distributes, imports, sells, offers or purchases such reproductions for sale
or distribution, or make s them available fo r any pur pose.
IP/N/6/COL /1
Page 22
Parag raph. If the physical suppo rt, cover, case or presentation of the literary work,
phonogr am, videog ram, software or cinematog raphic work displays the name, business name,
logo or distinctive sign of the legitimate right holder, the abov e-mentioned penalties shall be
increas ed by up to one h alf.
"Article 52. A prison sentence of one (1)to four (4) years and a fine of three (3) to ten
(10) monthly units of the minimum statutory wage sh all be incur red by:
1. Anyone who publicly perform s orexhibits theatrical or musical works, phonog rams,
videograms, cinematogra phic work s or any other literary or artistic work, without the
prior ex press authorization of the own er of the c orrespondin g rights.
2. Anyone who rents out orin any other way markets phonogr ams, videog rams,
software or cinematog raphic works without the prior express authorization of the
owner o f the co rresponding rights.
3. Anyone who fixes, reproduc es or mark ets public performance s of theatrical or
musical works, without the prior express authorization of the owner of the
corresponding rights.
4. Anyone who arranges or effects the communication, fixation, performan ce, display,
marketing, dissemination or distribution or representation of a wor k, or in any mann er
or by any mean s, known or knowable, uses a work without the prior express
authorization of its owne r.
5. Anyone who mak es false statements intended directly or indire ctly for the payment or
distribution of the author' s economic rights, altering the data relating to public
attendance, class, price and numbe r oftickets sold for a show or meeting, or the
number of tickets distributed free of charge, in such a way as might be prejudicial to
the author.
6. Anyone who mak es false statements intended directly or indire ctly for the payment or
distribution of the author' s economic rights, altering the numb er of copie s produce d,
sold or distributed f ree of charge, in su ch a w ay as might be p rejudicial to the author.
7. Anyone who makes false statements intended for the distribution of the autho r's
economic rights, omitting, substitut ing or wrong fully inserting data relating to the
respective works .
8. Anyone who performs acts aimed at misstating the actual revenue from ashow or
meeting.
9. Anyone who retran smits, fixes, reproduces or publicizes, by any sound or audiovisual
means, the broadcasts of broadcasting organizations, without the expre ss prior
authorization of the own er.
10. Anyone who receive s, disseminates or distributes subscription television broad casts
by any mea ns, without the prior ex press authorization of the owner.
Parag raph. In cases concerned with the offences covered by this Article, the criminal
action shall be withdrawn by the aggrieve d party when the defendant pays
compensation f or the injury caused be fore judgement is p ronoun ced at first instance."IP/N/6/COL /1
Page 23
The new Criminal Code (Law 599 of 2000 ), which will enter into force on 25 July 2001,
provides as follows in this connection:
"Article 270. Violat ion of an author' s non-pecuniary rights. Liability to a prison sentenc e
of two (2) to five (5) years and to afine of twenty (20) to two hundr ed (200) monthly units of
the statutory minimum wage in force s hall be incur red b y any one who:
1. Publishes, fully or in part, without the prior express autho rization of the right holder,
an unpublished litera ry, artistic, scientific, cinematographic or audiovisu al work,
phonogr am, computer progr am o r software.
2. Make s an entry in the copyright registe r in the name of a person other than the true
author, o r with altered or d eleted title, or with al tered, distorted, modified or mutilated
text, or with falsification of the name of the publishe r orproduce r ofa literary,
artistic, scientific or audiovisual wor k, phon ogram, computer p rogram or softwa re.
3. Summarizes, mutilates or transforms, by any mean s orprocedu re, without the prior
expre ss authorization of the owner, a literary, artistic, scientific or audiovisu al work,
phonogr am, computer progr am o r compute r software.
Parag raph. If the physical suppo rt, cover, case or presentation of a literar y, artistic or
scientific work, phonogram, videogr am, computer progr am, software or cinematograp hic
work displays the name, busin ess name, logo or distinctive sign of the legitimate right holder,
in cases wherethe title or text of the work is changed , deleted, altered, modified or mutilated,
the above -mentioned pen alties shall be incre ased by up to on e half."
Similarly, the new Criminal Code (Law 599 of 2000), which will enter into force on
25 July 2001, p rovide s as follows:
"Article 271. Fraudulent exercise of an autho r's pecuniary rights. Liability to a
prison se ntence of two (2) to five (5) years and a fine of between twenty (20) and
one thousand (1,0 00) monthly units of the statutory minimum wage in force , shall be incurred
by anyon e who, s ubject to the exce ptions provide d for by law:
1. By any mean s or procedure, without the prior express authorization of the owner,
reproduc es a literar y, scientific, artistic or cinematograp hic work, phonog ram,
videogram, softwar e or computer program, ortransp orts, stores, preserves,
distributes, imports, sells, offers or purchases such reproductions for sale or
distribution, or makes them av ailable for any othe r purp ose.
2. Publicly perfo rms or exhibits theatrical or musical work s, phonograms, videog rams,
cinematographic wo rks o r any other litera ry or artistic work, without the prior express
authorization of the own er of the co rresponding rights.
3. Rents out or in any other way markets phonog rams, videograms, compute r programs,
software or cinematog raphic works without the prior express authorization of the
holder o f the co rresponding rights.
4. Fixes, reproduces or markets public performan ces of theatrical or musical work s,
without the prior ex press authorization of the own er of the c orrespo nding rights.IP/N/6/COL /1
Page 24
5. Arrang es, effects o r utilizes, by any me ans o r procedure,the communication, fixation,
performan ce, display, marketing, dissemination or distribution and representation of
any of theworks protected unde r this title, without the prior expre ss authorization of
the owner.
6. Retransmits, fixes, reproduc es or publicizes, by any sound or audiovisual means ,
without the prior express authorization of the owner, the broadcasts of broadcasting
organizations.
7. Receives, disseminates or distributes subscription television broadcasts, by any
means, without the prior exp ress authorization of the own er.
Parag raph. If the con duct re ferred to in para graphs 1, 3 and 4 of this Article involves no more
than (100 ) units of the wo rk, the p enalty shall be r educe d by u p to one h alf."
The new Criminal Code (Law 599 of 2000 ), which will enter into force on 25 July 2001, also
provides as follows:
"Article 272. Violat ion of the mecha nisms for the protection of an author 's pecunia ry rights
and other typ es of fraud. A fine sh all be incur red by anyo ne who:
1. Defeats o r evades the technological mea sures ado pted to re strict unauthorize d use.
2. Expunges or alters information essential to the electronic management ofrights, or
imports, distributes or communicates copies with the expun ged or altere d
information.
3. Manu factur es, imports, sells, rents out or in any way distributes to the public a device
or system that can be used to decode an encode d programme -carrying satellite signal
without authorization from the legitima te distributor of that signal, or in any way to
elude, avoid, deactivate or put out of commission a device or system enabling the
right holders to monitor the use of their works or productions, or to impede or restrict
any una uthorized u se the reof.
4. Submits declarations or information intended directly or indirectly for the payment,
collection, asses sment or distribution of an autho r's economic rights or related rights,
and alters o r falsifies, by any mea ns or pro cedu re, the data r equired for that purpo se."
The Criminal Code contains the f ollowing provisions:
Article 217 provides for one to five year prison sentence s andfines to sanction the violation
of industrial property rights in an officially used mark, wher e such mark is falsified or applied to a
product othe r than the on e for which it was intended.
Article 238 establishes prison sentence s and fines for anyo ne who uses, publishes ordisclos es
a scientific invention, processor industrial application which have come to their knowledge byreason
of their respon sibilit ies, trade or profession and which aremeant to remain confidential, forwhich
reason anyrevelation of such information by the authorities could also render them liable to criminal
proce edings if the said cond uct is classified as an offence.
Article 236 states that anyone who fraudulently uses a legally protected industrial,
commercial or agricultural name, sign, mark, emblem, design, label, patent or model shall be liable to
imprisonment for six (6) months to thr ee (3) y ears and a fine of between 2,0 00 and 1 00,00 0 pes os.IP/N/6/COL /1
Page 25
Finally, Article 237 penalizes the wrong ful useof patents, stipulating that anyone who
manufactu rers a product without authorization from the owner of the legally protected right, or uses a
patented medium or process without prope r autho rization, shall be liable to imprisonment for six (6)
months to four (4) years and a fine of between 20,000 and 500,000 pesos. The same penalties are
applicable to anyone who bring s into or takes out of the country, exhibits, offersfor sale or dispo ses
of a p roduct manufa ctured in b reach of a patent.
22. Which public authorities are responsible for initiating criminal proceedings? Are they
required t o do this on their own initiative and/or in r espon se to complaints?
Criminal proceedings are brou ght before the State prosecuting authority, the body responsible
for conducting pre-trial proceedings at the investigative stage. In cases of infringeme nt of copyright
and related rights, the State prosecuting authority may act ex officio or in response to a complaint ex
parte.
The rules of criminal proced ure contain no requireme nt that a complaint be lodged in respect
of offences against the economic and social order (which include counter feiting of mark s and patents,
unlawful use of patents and violation of industrial secrets); henc e the investigation always proceeds
ex of ficio.
23. Do private pe rson s have standing to initiate c riminal proceedings and, if s o, who?
Article 59 of Law 44 of 1993 provides that, in cases of infringement of copy right and related
rights, the criminal proce edings are public, which means that any person who has knowledge of a
criminal offen ce in this area may b ring a c riminal action befor e the competent a uthorities.
Private owner s of industrial property rights who are injured by any conduct classified as an
offence are entitled to ini tiate the corr esponding criminal proc eedings.
24. Specify, by category of IPR andtype of infringement where necessary, the penalties and
other remedies that may b e imposed:
- Imprisonment;
- monetary fines;
- seizure, forfeitur e and destruction of infringing goods and mate rials and
implements for th eir produc tion;
- other.
Infringements ofcopy right and related rights, as defined in Article 51 of Law 44 of 1993,
attract a fine of five to 20 monthly units of the minimum statu tory wage, in addition to a custodial
sentence .
Article 52 likewise provides for a fine of three to ten months of the minimum statutory wage,
in addition to a custodial sentence.
Seizure, forfeiture and destruction of infringing goods and material and implements for their
production
Law 44 of 1 993 p rovides as follows:
IP/N/6/COL /1
Page 26
"Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks,
negatives, tapes, covers or labels shall be subject to judicial inspection with the assistance of
the expe rt, and once shown to be illegal by this means, shall be destro yed bythe criminal
investigation authorities in the presen ce of the court officer, with notification to the defenc e
and the pa rty claiming damages."
"Article 56. Impounded goods intende d directly or indirectly for the production,
reproduction, distribution, transpo rt or marketing of illegal copies shall be attached or seized
ex officio, and following valuation, those that are not to be destroy ed shall be award ed under
the adverse judgement to the parties injured by the punish able act, by way ofdamage s, or
shall be put up fo r auction for that pu rpose."
Other remedies
It is possible, in criminal proceedings, to claim and obtain compens ation for economic
damage caused by a criminal offence. For that purpose, the owne r of the rights concerned, or the
management compa ny by which he/she is represented, must bring criminal indemnification
proce edings a nd su bmit the relevant claim.
See the r eplies to questions 5 and 20 abov e.
25. Describe provisions gove rning the length and any cost of proceedings. Provide any
available data on th e actual duration o f pro ceedings and th eir cos t, if any.
Note: The private sector associations have been consulted with a view to obtaining this
information.
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