PROVISIONAL SUSPENSION REGARDING ACCUSED ACTS RELATED TO INDUSTRIAL PROPERTY
In a recent decision, the Colombian State Council, opened the possibility of applying for a provisional suspension of accused acts regarding Intellectual Property, and set the guidelines to do so.
Until recently, the Colombian Council of State held that the request for provisional suspension of the effects of administrative acts issued on Industrial Property matters required the judicial interpretation of the Andean Community Court of Justice, whenever the simple confrontation between the accused acts with the invoked violated rules does not manifestly becomes an infringement act. As the pre-judicial interpretation was requested only at the end of the process, before sentencing, the request for provisional suspension was not allowed.
Nonetheless, according to the new Administrative Procedure Code, in all processes handled before this jurisdiction, the Judge may decree, upon duly grounded petition, the precautionary (injunction) measures that he deems necessary in order to protect the object of the process and to ensure the effectiveness of the ruling, without this measures implying prejudging. Once the claim is filed, the Judge may order the precautionary measures at any stage of the process.
By means of decision of February 23, 2016, the Colombian Council of State established the scope and requirements of the temporary suspension of the accused administrative acts, as a precautionary measure.
In accordance with the prior Administrative Code (Decree 01 of 1984), this precautionary measure was subject to a manifest contradiction between the rule and the administrative act. The transgression should be obvious and could not involve any analytical effort by the judge.
The new rule (article 231 of the New Administrative Procedure Code) allows the judge to realize an analysis between the accused acts and the violated rules invoked and study the evidence filed along with the application.
Nonetheless, it will be necessary to demonstrate, in the suspension application, that this precautionary measure is necessary to protect the corresponding Intellectual Property right. In the case of a lawsuit in which the restoration of the right is intended, the existence of damages must be at least summarily proven.