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BOLIVIA, COLOMBIA, ECUADOR AND PERU

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BOLIVIA, COLOMBIA, ECUADOR AND PERU

CONCEPT OF “IMMINENT TRADEMARK INFRINGEMENT”

In Prejudicial Interpretation 367- IP -2015, the Andean Community Court of Justice stated that it is possible to go forth with an infringement action not only when an infringement has been committed but also when an infringement is imminent.

 

An imminent infringement entails a rational and founded fear that the infringement is bound to happen immediately due to previous or preparatory acts that pose a threat to industrial property rights. Naturally, the imminence has to be proven.

The difference in either scenario is that an infringement involves existing damage or harm, while they are not generated when the infringement is imminent.

The Court upholds that although damages take place by the effective marketing of goods bearing a third party’s unauthorized trademark, the imminence of the infringement occurs with acts such as downloading products in docks, the storage of goods prior to their commercialization, or the manufacture of their labels.