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Paraguay

Last Verified on Tuesday 23rd May 2017

    • Paraguay

      In Paraguay, for a patent to be granted requires absolute novelty. An invention is considered novel if there is no previous record thereof in the view of prior art. According to the Patent Law, the view of prior art encompasses all that has been revealed or made accessible to the public, anywhere in the world and by any means, prior to the date of filing of the patent application in our country, or before the priority date invoked in a patent application.

      However, the view of prior art does not include what has been made known publicly during the year preceding the filing date of the application in Paraguay, or within the year preceding the date of the application priority that is being claimed; if such disclosure has resulted directly or indirectly, from actions performed by the inventor or inventors or his rights holder or holders. Moreover, products or procedures comprised in the view of prior art cannot be the subject of a new patent for the sole reason of having a different use from the original patent.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The criteria are that a qualified person in the technical field of the invention will not consider the invention as obvious or that the invention itself has not been obtained in a way that is evident to the technical field.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The two different types of patent protection are patent of invention and patent of utility. The main difference between the two is the level of inventiveness. In a patent of utility, the level of inventiveness is less than that required for a patent of invention. Patent of utility refers to inventions applied to a form, configuration or placement of device elements, tools, instruments, mechanism or other objects, or of a part thereof, that allows a better or different operation, use or fabrication, or that offers any use or technical effect that it did not have before. Another distinction is the period of protection: a patent of invention protects for 20 years and patent of utility for only 10 years.

      In addition, patent of inventions may be divided into two subcategories: patent of products and patent of methods or procedure, depending on the type of invention that is actually protected.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      According to Law No. 1630/200 (Patent Law), a patent is granted for a period of 20 years, from the date of the patent application. This term cannot be renewed and once it lapses the patent enters the public domain.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      It is not required that the first filing is made in Paraguay if an invention is conceived here.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      In the absence of contractual licences, the following rules shall apply to the exploitation licences of an invention:

      • the licence shall extend to all exploitation acts of the invention, in all the national territory and in regard to any application of the invention;
      • the licence holder may not assign the licence nor grant sublicences;
      • the licence shall not be exclusive: the licensor holds the right to grant other exploitation licences in the country, as well as to exploit the patent in the country on his own; and
      • when the patent has been granted as exclusive, the licensor may not, on his own, exploit the licence in the country.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Business and computer methods are not patentable in Paraguay. Additional matters that are not are eligible for patent protection are:

      • simple discoveries, scientific theories and mathematical methods;
      • purely aesthetic creations;
      • economic, business, advertising or publicity schemes, plans, principles or methods, and those referring to purely mental or intellectual activities or playing matters;
      • diagnostic, therapeutic, surgical methods for the treatment of persons or animals;
      • various forms or reproducing information;
      • inventions the commercial exploitation of which must be necessarily prevented in order to protect the moral and public order, as well as health, lives of individuals or animals, and preserve plant life, or in order to avoid severe damages to the environment; and
      • plants and animals, excluding microorganisms, and the biological procedures for the production of plants or animals.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The current level of patent litigation in Paraguay is very limited since there have been few cases. Most patent litigation relates to the chemical industry for herbicides.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The remedies available for patent holders are civil actions. The civil actions are regulated by the Civil Law and Civil Procedure Law 1988. Patent holders can claim monetary damages when there has been an unauthorised registration of an invention by a party that is not entitled to do so, or an unauthorised use of an invention. The estimation of damages is based on:

      • the direct damages and loss profits or the amount of benefits obtained by the infringer; and
      • the price the infringer would have paid for a contractual licence, bearing in mind the market value of the right infringed, as well as a reasonable royalty.

      Also it contemplates the damages derived from prestige loss caused by the infringer.

      In the event that the patent is a procedure to obtain a new product, the judicial authority may transfer the burden of proof to the defendant, which has to prove that the identical product has not been obtained by use of the patented procedure.

      The civil actions prescribes two years from the date that the holder becomes aware of an infringement, or four years counted from the last acts of infringement, applying the deadline that expires firstly.

      Precautionary measures are also offered to patent holders. These measures may be requested prior to initiating the action, concurrently therewith or after initiation thereof. There is no autonomous precautionary action in Paraguay; consequently, this measure can only be obtained as part of a civil action.

      The available precautionary measures are:

      • immediate cessation of those acts constituting the infringement;
      • injunction or seizure of the products resulting from the infringement, as well as the materials, instruments and anything that served mainly to commit the infringement; and
      • suspension of importation or exportation of the products, materials and so on, necessary for the infringement.

      The new Criminal Code enacted in 2005 has increased the penalties against trademark infringers and decriminalised the infringement of patent inventions.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Our country is not considering major changes to its patent system. There is no political interest in doing so.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The Paraguayan Patent Law expressly provides the patent exhaustion doctrine. The patentee’s rights are exhausted when a third party acquires the patent products when it has been lawfully introduced into the market by the patentee, its legal representatives, or licensees. Therefore, the patentee cannot prevent such third party from carrying out acts of commerce in any country with respect to the acquired patented product.

      When comparing the application of the doctrine in Paraguay to that of the other countries that are part of the MERCOSUR, the application in Paraguay should be very similar to the application in Brazil, Uruguay and Argentina, considering that the legislation of these four countries are very much the same, with a few slight differences.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Paraguay is a signatory of the TRIPs agreement by Law No. 444 of 1994. It is not a signatory of the Madrid Protocol, nor is it likely to join it.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Our trademark clients do not use either of the regional trademark systems. The MERCOSUR Protocol on Intellectual Property only rules in Paraguay and Uruguay since Brazil and Argentina are not signatories of this protocol.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      According to Law No. 1294/98 (Trademark Law), a trademark registration shall be valid for a period of 10 years and may be renewed indefinitely for equal periods of 10 years.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      In Paraguay, there are no established rules that govern the use of the registered or unregistered trademark symbols. Either symbol can be used.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The main problems affecting trademark holders are counterfeiting, corruption and the enforcement of our Trademark Law. As a result, these situations only favour and attract more infringers in detriment of trademark holders. Unfortunately, there have not been any successful strategies to address these problems.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Licences to use a trademark shall be registered in the Trademark Office to have legal effects before third parties. The trademark licence agreement shall necessarily contain provisions that secure control by the owner over the quality of the products and services that are the subject of the licence, without prejudice to the control that may be performed by the competent authority in defence of consumers.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      In order to comply with the Trademark Law and the TRIPs Agreement, the Custom Office created in 2008 a Border Control Program to combat counterfeiting through a registry of trademarks at the Customs Office. Regrettably this system has not been as effective as expected, mainly due to the constant change of customs authorities. The private sector is currently very involved in the fight against counterfeit by training prosecutors and custom authorities.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Yes, we recommend companies register their domain names if they are going to do business in Paraguay as it constitutes an additional element of proof in case of an infringement.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Our Trademark Law is very modern and in accordance with trademark international treaties such as: the Paris Convention, the TRIPs Agreement and the WIPO Treaties. The problem lies in the enforcement of the law.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Legal issues that should be considered before registering a trademark in Paraguay is the performance of a trademark search and, once registered, to start the use of the trademark within five years after the registration is granted, so as to avoid cancellation actions for non-use.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Trademark oppositions are allowed in Paraguay. The deadline to file an opposition is within 60 working days from the last publication date. This deadline cannot be extendable.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Yes. The Paraguayan Trademark Law expressly establishes the so-called “Measures at the Border” which are legal restrictions to the importation of counterfeit products and act as precautionary means for the owner of the trademark that is being infringed. In effect, the Trademark Law sets forth that the proprietor of a registered trademark, who has founded reasons to believe that the import of products that may violate his rights is imminent, may request the Customs Authorities to cease such import at the time of shipment.

      However, the party requesting such measure is compelled to furnish the Customs Authorities with all the information that may be deemed necessary, as well as a precise description of the merchandise, so that it may be recognised.

      The party should also file a lawsuit for trademark infringement before the competent judicial authority within the term of 10 working days and give notice that such lawsuit has been commenced to the Customs Authorities; otherwise, the measures will be revoked.

      When the suspension of import has been imposed, the Customs Authorities have to notify both the importer and the applicant, immediately. These measures can be later modified, revoked or confirmed by the corresponding judicial authority.

      In some cases, the judicial authority may require the deposit of a sufficient security.

      The Trademark Law also establishes that trademarks may be registered before the Customs Office in order for the officers to test the legitimacy of goods which shipment is requested. However, this registration is only a security measure and is by no means mandatory for the effective implementation of the rights contemplated by the Law.

      In addition, the Trademark Law prevails that the owner of a registered trademark or trade name may file a lawsuit for trademark infringement when a third party has affixed or placed a mark or distinctive sign on products for which his trademark has been registered, requesting the corresponding judicial authority to establish a precautionary measure in order to suspend the import of the contravening products into the country; when the measure has already been ordered by the Customs Authorities, the judicial authority will be empowered to either confirm and extend it, revoke the measure or modify the measure, as mentioned in the paragraphs above.

      The compensation of damages may be requested and granted; also, the destruction of the products may be ordered.

      Criminal punishments are also contemplated by the Paraguayan Legislation, when there is a violation an intellectual property right; particularly, with respect to counterfeit goods, the Trademark Law establishes that the falsification or adulteration of a registered trademark leads to a criminal punishment of one to three years of imprisonment and a fine of one thousand to three thousand minimum wages; and the Paraguayan Penal Code sets forth that the falsification, adulteration or fraudulent imitation of a registered trademark can result in a punishment of up to five years of imprisonment, unless the case is extremely serious – as defined by the Penal Code - in which case the imprisonment can be of between two and eight years.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The only “key issue” to be considered when licensing trademark use rights in Paraguay is that all licence agreements should contain terms that guarantee the owner’s control over the quality of the products or services that are the subject of the licence. However, it does not invalidate trademark based on naked licences. 

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      No. The Trademark Law sets no such limits and thus, they are subjected to what is initially agreed upon by the parties in the Licence Contract or Agreement.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      A trademark licence may be considered a franchise arrangement when it reunites the requirements and characteristics of a franchise, that is to say, there is a transfer of a set of intellectual property rights, including patents, trade secrets, etc, rather than only one intellectual property asset, such as the right to use a trademark; in particular, an agreement is considered a franchise when the arrangement between the parties contemplates products and services starting with the manufacture, supply for manufacture, distribution and sales of products to the provision of services, its commercialisation, distribution and sales; there is a transfer of the know-how of the business model concerned; and a series of obligations for both parties: the franchiser having to either supply knowledge, training, raw material for the elaboration of goods; and the franchisee having to provide labor or manpower, investment capital and the payment of a royalty for the use of the franchise.

      There is no franchise law in Paraguay; consequently, a franchise arrangement is subjected to the provisions of the Civil Code regarding the contracts in general. Additionally, the Trademark Law stipulates that the franchise arrangements, in so far as they are related to the licence of trademarks, shall be regulated by the norms concerning the Licenceof Trademarks and therefore shall be registered before the National Office of Intellectual Property in order to be enforceable against third parties.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      No, there are none in the Trademark Law, consequently, the termination of a licence agreement is subjected to what was accorded by the parties in the respective contract or by the general provisions of the Paraguayan Civil Law for the termination of contracts.

      For example, the concerned party can file a lawsuit for breach of contract if the other party has failed to comply with the terms and conditions set forth in the licence agreement, demanding the termination of the contract and the compensations of damages, if applicable.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      A trademark may be deemed abandoned when its owner fails to renew it within the term provided by the law, that is to say, six months from the date it officially expired.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      We recommend copyright registration for local packaging and/or marketing materials in order to extend the scope of protection.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Law No. 1328/98 (Copyright Law) sets forth that the economic rights granted by copyright are valid throughout the author’s lifetime and for 70 years after his or her death.

      The moral rights granted by copyright have no term of expiration and continue to be in force even though the work concerned has entered the public domain.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Yes. The recently sanctioned Law on E-commerce establishes that the providers of intermediation services, hosting services, connection services and temporary copy services are not responsible for the information that is transmitted, stored at the request of the user, directed to the user or its contents or temporary reproduction, respectively, when they have no knowledge with regards to the contents of the information, did not begin the transmission of the data themselves (providers of intermediation services), or they are unaware that the information is illicit or illegal.

      The immediate removal of the illegal or illicit information is required in most cases.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Paraguayan legislation recognises a very limited “first sale doctrine” for purposes of limiting copyright enforcement. There are restrictions to the copyright owner´s exclusive economic rights. In this sense, copyrighted works may be legally displayed without the authorisation or payment of a royalty to the author in certain cases. For example, when the work is displayed in a domestic environment without monetary interests. Or when the copyrighted work is used for educational purposes or when musical works are partially reproduced for matters of public interest. Consequently, it is presumed from the copyright legislation that there are exemptions to the author's exclusive right so long as the acts concerned do not have an economic or monetary intention. The only exception applies for artistic works, which can be publicly displayed either for a value or gratuitously by the lawful owner of a copy of a copyrighted work, unless otherwise stipulated in the sales contract. However, when there is a sale of an artistic work involve, the seller must pay a 5 per cent fee over the resale price to the author or his or her heirs.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      There is no standard of contributory copyright infringement in Paraguay. Nevertheless, from the interpretation of our Copyright Law, we can conceive that copyright owners can likewise claim damages to contributory infringers.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      With regards to copyright and according to the Paraguayan Criminal Code, the following acts are considered criminal offences and therefore sanctioned:

      • the unauthorised reproduction of copyright works;
      • the unauthorised introduction to the country, storage, distribution, sale, rental or the making available to the public of copyright works;
      • the public communication, totally or partially, temporarily or permanently of protected works by means of non-authorised reproductions;
      • the retransmission of works by radio broadcasts;
      • false claim of authorship of a copyright work in order to put into effect the rights that such position grants;

      All of the above are sanctioned with up to five years of imprisonment or a fine. Further, phonograms, translations, artistic representations, among other examples, are protected in the same way.

      Additionally, the non-authorised modification, alteration or transformation of the technical measures for protection of copyright works or the non-authorised manufacture, reproduction, acquisition, storage or public advertisement of devices that specifically enable the elusion, neutralisation or suppression of such technical measures are also sanctioned with a penalty of up to three years’ imprisonment or a fine.

      With respect to trademarks, the Paraguayan Criminal Code stipulates that whoever falsifies, adulterates or falsely imitates a registered trademark with respect to the same or similar goods or services protected by such trademark or; stores, sells, or makes available goods or services that carry a false trademark shall be punished with up to five years’ imprisonment.

      The same penalty prevails when someone commits the above-mentioned offences but with respect to patents or industrial models or designs.

      Moreover, there are aggravating factors (for example, the fact that the goods concerned have a high economic value) that may raise the penalty to up to eight years’ imprisonment.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Databases are protected through the copyright system. The requirement for their protection are that the databases should be original, either by the way of its selection, coordination, or the arrangement of their contents.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The Paraguayan Constitution grants very strong protection to a person’s private image and the right to privacy. It stipulates that personal and family privacy, as well as, one’s private life, are inviolable. The right to privacy, personal dignity and private image are secured.

      Moreover, section VII – Criminal Offenses against people’s private lives and privacy – demands criminal sanctions for the violation of such rights, throughout articles 141 to 149.

      Specifically, article 143 of the Paraguayan Criminal Code stipulates that whoever violates a third party’s privacy in public through publications as set forth in article 14 of the said body of laws, shall be punished with a fine.

      In the same way, article 144 of the mentioned Code specifies that whoever listens, records, stores or makes available to third parties and without the concerned person’s consent, another person’s statement that is not to be publicly known, shall be punished with imprisonment of up two years or a fine; the same sanction is stipulated for someone who transmits or produces someone else’s images without the authorisation of the person concerned, within his private residence, in a third party’s residence or elsewhere, thus violating the right of the person concerned to his private life.

      However, the Constitutional protection refers only to the private sphere of a person’s life and not his or her image with regards to the execution of public responsibilities; it should also be noted that there are no regulations in Paraguay that refer to image as a property right (versus a personality right) and the right to its commercial exploitation.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Alternative dispute resolutions are not yet used in Paraguay to solve intellectual property disputes. ADR is a relatively new field in Paraguay, although the inclusion of ADR clauses in contracts, such are licences and franchise contracts, is becoming more frequent.. It would be a great action to implement it since our judicial branch is currently very affected by bureaucratic delays and acts of corruption. ADR could be an innovative and effective tool since it yields a rapid mechanism for conflict solving, as well as for reducing costs.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Trademarks can be recorded at the Customs Office. Once they are registered at the General Customs Department, the trademark owner may request to be informed of the customs clearance of goods that have a registered trademark and whose manufacturer is not the owner. The owner may also demand that the clearance of such goods be suspended until their legitimacy is proven. As mentioned before, this system is not yet effective in preventing the import or export of counterfeit goods.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      In June 2011, 13 years after the Copyright Law was promulgated, the Paraguayan Executive Branch regulated Decree No. 6780, which demands “compensation rights for private copies”. This decree has empowered the Paraguayan Society of Artists, Interpreters and Performers to collect a compensatory royalty for the personal use of a copyrighted work. The parties forced to pay are the national manufacturers and importers of digital devices capable of reproducing, recording or communicating pictures or audiovisual works. The devices that fall under this decree include: mobile phones, sound recording devices, CDs, DVDs, pen drives, mp3 players, memory cards, broadcasting apparatuses, and so on. The price of the digital royalty is based on “transfer price”, either the sale price or the price recorded for customs purposes in the case of importers.

      This scenario has generated a new debate between the copyright owners, and the manufacturers and distributors of digital devices. Recently, some digital device importers filed an unconstitutional action against the decree since they consider that it violates the provision of presumption of innocence and double taxation. Currently, this complaint is pending a decision by the Supreme Court.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      A significant court decision was introduced in the fields of patents. The previous Patent Law granted patents a 15-year term protection. After the TRIPs Agreement was ratified in Paraguay, the term of patent protection was extended to 20 years. In 2010, the Administrative Court of Appeals declared that all patents falling under the previous legislation are still valid until the 20-year term has been completed.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The formalities are the following:

      • Registration before the National Office of Intellectual Property by either the licensor or the licensee;
        • Filing of a copy of the licence agreement (a short version is acceptable), in Spanish;
        • If the document is in a foreign language, it has to be translated into Spanish, by a duly sworn translator in Paraguay; if the agreement was not signed in Paraguay, it needs to be notarised and legalised by the Paraguayan Consulate.

      The Apostille Convention entered into force in August 2014. Consequently, as of 1 September 2014, documents drawn up in a country that is party to the Convention no longer require consular legalisation; they only require the Apostille from the competent public entity in their country.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Our country regulates the protection of personal information through Law No. 1.969/01 and 1.682/02. According to these laws, all individuals have the right to collect, store and process personal data, but only for exclusively private use.

      The intention of this framework was mainly to regulate those who reveal or estimate the patrimonial situation, economic solvency or compliance of commercial and financial obligations of individuals and entities. This information can be revealed if they comply with the following requirements:

      • when there is express and written authorisation;
      • when public or private entities must be made public in order to comply with specific legal provisions; and
      • when the data can be found in public sources of information.

      The consequences of non-compliance are monetary penalties. Additionally, the affected party can file criminal or civil complaints for damages.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Our legal framework distinguishes between sensitive and non-sensitive data.

      Sensitive data is that which makes reference to racial or ethnic preferences; political preferences; individual health status; religious, philosophical or moral convictions; sexual intimacy; and in general anything that can promote prejudice and discrimination, or that affects the dignity, privacy, domestic intimacy and private image of individuals or families.

      Non-sensitive data is not defined in our legal framework, therefore it is to our understanding that non-sensitive data is everything that is contrary to sensitive data.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      A special data protection rule only applies to financial services. Financial entities, as well as their directors and employees are forbidden to provide any information on transactions with customers, unless with written authorisation.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      There is no special norm that regulates the requirement of notice in the event of personal data compromise. Nonetheless, in case this occurs, it is recommended that a complaint be filed at the Police Department so as to have legal protection against third-party claims.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Yes, the recently sanctioned Law on E-Commerce (which entered into force in February 2013) provides that when the Providers of Good and Services (electronic providers) use data storage or data retrieval devices in terminal equipment, they shall inform the consumers or users in a simple and clear way about its use and purpose, offering them the possibility of rejecting the use of data by means of a simple and free procedure.

      Additionally, article 22 grants protection to users’ privacy, stipulating that the providers of goods and services (electronic provision of goods and services) shall offer the consumer or user the possibility of opposing the use of his/her data for promotional purposes, by means of a simple and free procedure, both at the time the data is gathered as well as, in every single one of the commercial communications sent.

      Moreover, article 23 regulates the not-requested commercial communications sent via e-mail, providing that the providers of goods and services can only send such communications if they indicate expressly the kind of not-requested commercial communication; an easy recipient exclusion system is included in the message; and the recipient’s data was not obtained by infringement of his privacy rights.

      Further, it is expressly determined that users shall have a simple and free procedure that allows them to oppose the use of their data with commercial purposes, at the moment when the data is collected, as well as throughout subsequent commercial communications.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      With regards to safe harbours that apply to anonymised data, the only relevant provision is set forth by article 10 of the Law on E-commerce, which stipulates that the providers of intermediation services and of data hosting have to store the connexion and traffic data that was generated by the communications during the provision of the service for a period of six months; such data is stored for the sole purpose of facilitating the identification of the terminal equipment that was used by the user for the transmission of the information. The providers must store only the data that is essential for the identification of the terminal equipment.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      No. In Paraguay this is not regulated and therefore there are no requirements to the companies.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Public sources of information are free to access by all individuals, thus it is not necessary to require notice or consent. However, in order to reveal the patrimonial situation, economic solvency or compliance of commercial and financial obligations of individuals and entities for publication or diffusion, express and written consent is required.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      According to Law No. 1682/01 – which regulates the protection of private data – the civil courts of first instance are the judicial authorities in charge of enforcing the regulations on private data.

      When it comes to the compliance with the norms set forth by the Law on E-Commerce (directly affecting the Providers of Goods and Services by electronic means), the Ministry of Industry and Trade is the authority in charge.

      In regard to enforcement, the Law on Protection of Private Data (as mentioned above), stipulates that the following acts shall be punishable:

      • The publication or distribution of information regarding the economic situation or solvency or the compliance with commercial or financial obligations regarding third parties in violation to the provisions of the law. The fines to be imposed range from 50 to 100 minimum wages, depending on the circumstances of the case. The same may be increased if the infringer does not promptly rectify his or her conduct, although a prior written notice is required.
      • The non-compliance with the obligation of rectifying or of providing information for modification of data as established in the Law or the rectification of provision of such information outside the deadlines provided by the law. Fines also range from 50 to 100 minimum wages, depending on the circumstances of the case and may be subject to increase if the infringer does not rectify his or her conduct. A prior written notice is necessary for such increase.
      • The non-provision of information or data related to a person or to members of his or her family, when requested by the interested party, or to his or her property available in Public Records without legal or judicial basis. Fines may range between 100 and 200 minimum wages.

      The Law on E-Commerce also establishes fines for infringement or non-compliance with its norms, that shall be imposed based on a number of criteria, including: the intention of committing the infringement, demonstrated by the infringer; the duration of the infringement; recurrence, among other examples. The regulatory enforcement does not vary by industry. 

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      Law No. 1682/01, which regulates private data, sets forth a series of sanction for non-compliance with its provisions, composed principally of fines.

      For example, the physical or legal persons that publish or disseminate information related to the economic situation or solvency or compliance with obligations, in contravention with what is established in the law mentioned, may be charged with a fine amounting to between 300 and 700 times the current minimum wage, depending on the circumstances of the case, fines that can be doubled, tripled or quadrupled in case of recurrence.

      The fines are imposed by the Civil Courts of First Instance in a summary procedure. The affected person may sue the infringer for civil damages or promote a criminal complaint.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      There is no Cybercrime Law in Paraguay; however, the Criminal Code foresees a number of actions related to, or carried out by means of, computers that include unauthorised computer intrusion and misappropiation of electronic information.

      Specifically, the following articles are related to crimes that could be carried out by computer or by computer resources:

      • Article 140, which protects minors and prohibits the publication and broadcast of pornographic pictures or publications that include underage people (children and adolescents).
      • Article 146, which prohibits the disclosure of private communications (emails, letters, etc) without the owner’s consent and by technical means (which would include the internet and computers).
      • Article 174, which refers to the illegitimate modification, suppression, etc of electronic data.
      • rticle 175, which refers to the illegitimate disruption of a computer system, including the blocking of data processing, vital to a company or any other person, and the destruction or alteration of data-processing installations.
      • Article 188, which defines “fraudulent operations by computer means” and determines that whoever exercises an influence over the results of a data process by means of fake programming, utilisation of false data, illegitimate utilisation of data, among others, in order to obtain an unlawful economic benefit shall be punished.

      Punishment for such acts vary depending on the circumstances and include, in some cases, imprisonment.

      Moreover, where the commitment of a crime has been established and proved, the affected parties may file, before the civil courts, a lawsuit claiming damages as a result of such crime.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The fiscal or tax system in Paraguay is basically composed of the following tributes: taxes, rates and special contributions. Law No. 125/91 (with its modifications by Law No. 2421/04) establishes certain taxes –income tax, value added tax (VAT) and capital tax, among others ­– that apply to business transactions, business and commercial activities and the acquisition of products and services and have a direct impact on trademarks, patents and the transfer of technology.

      As far as fiscal incentives are concerned, Law No. 60/90 – On the Promotion of Investments – sets forth important incentives to the investment of capital, both national and foreign, in Paraguay and could apply to the development of intellectual property (trademarks, technology transfer). In fact, it establishes that the physical and legal persons, whether national or foreign, that invest in the country will be benefited by the present law; such investment may be composed of trademarks, industrial models, designs or procedures and other forms of technology transfer that may be licensed.

      The benefits or incentives include: complete exoneration of the fiscal and municipal tributes that apply to the inscription and registration of companies and enterprises; exoneration of customs duties that apply to the import of capital, raw material, etc that are to be destined to the investment project, among others.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      The Paraguayan Constitution embraces free competition and free access to market; monopolies are strictly prohibited as well as, the artificial rise or fall of prices that may impede free competition, so there could be an eventual collision between Intellectual Property Rights and Competition Law.

      Law No. 1034/83 – Law On Trade – establishes some principles on competition in trade, throughout articles 105 to 1It provides that trade or commercial competition can be exercised freely so long as it doesn’t affect the national economy’s interests and within the limits set forth by the Law mentioned and other national legal dispositions, as well as, the contractual agreements between the parties.

      Pacts that limit competition are acceptable if they are limited to a certain zone or territory and to a certain activity; they cannot last longer than five years and should not have a negative effect on third parties’ rights. Moreover, the provider of a product or service has to provide such goods or services to all interest parties in equal conditions and price.

      Article 108 goes on describing what is considered unfair competition (regardless of what is established in the special law on Trademarks and Patents); it provides that certain acts, such as using names or distinctive signs that may lead to confusion with those legitimately used by other or imitating a competitor’s products are acts of unfair competition, among other examples.

      These principles are also laid down in the Paraguayan Trademark Law (Title III –Unfair Competition) which stipulates that “Acts contrary to good practice and honest dealing in industry or trade shall constitute unfair competition.” and establishes what acts may be considered acts of unfair competition, an example of which are “acts liable to cause confusion or a risk of association with other products, services, firms or enterprises”.

      With regards to licensing and trademarks, the Paraguayan Trademark Law only establishes that the owners of registered trademarks are free to grant written licensing contracts to use a brand to third parties, but does not approach the issue of whether or not the refusal to license may be considered as abusive of a dominant position. Consequently, owners are free to license the use of their trademarks if they wish to, so long as they: register such licence contract with the Office of Industrial Property (for effect against third parties); the contract contains terms that guarantee the owner’s control over the quality of the products or services; and the clauses do not impose restrictions on the licensee other than those derived from the registration of the brand. The possibility of an exclusive licence contract is accepted.

      Law No. 1630/2000 – On Patents – regulates the licensing of patents and establishes that a patent owner may grant a licence to a third party for the exploitation of his invention; the parties may regulate the rights that emerge from such contract freely, so long as the contract does not contain clauses that may be considered unfair competition, have a negative effect on the competition or lead to an abuse by the owner of the patent or of his dominant position (an example established by the law are the limitations to export the product protected by the patent to countries with which there is a economic or commercial integration zone agreement).

      The law also allows the granting of obligatory licences, in some circumstances: non-use of a registered patent, special sanitary emergencies and unfair competition.

      With regards to unfair competition practice, obligatory licences may be granted by the Director of the Industrial Property, among other examples, when it has been determined that the patent owner has made an abuse of his dominant position.

      Unfair competition practice are referred to by the Patent Law and include: the fixing of an excessive price for the patent product, compared to the average international market price; offers of the patented product at a significantly lower price than that offered by the patent owner; the negative to provide for the market in a regular and adequate way; the blocking of a patented invention’s efficient exploitation in the country, by the patent’s owner, when such exploitation could lead to a technological development.

      It should be noted that in Paraguay there is no anti-competition legislation; Congress was studying a free competition law or law on competition defence, but such project was not passed into a law.

      Finally, there is no regulation in Paraguay similar to EU’s Technology Transfer Block Exemption Regulation.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

    • Paraguay

      With respect to the implications of bankruptcy filing under the Paraguayan legislation on intellectual property licensed rights, the Bankruptcy Law in Paraguay does not specifically foresee any consequences that may arise as a result of one of the parties to the licence agreement filing for bankruptcy with respect to the licensed intellectual property rights.

      However, it does prevail that the declaration of bankruptcy does not automatically terminate the pending bilateral agreements; consequently, the licence agreement should remain in force.

      The licence agreements that are pending at the time of the declaration of bankruptcy, whether partial or totally, may be fulfilled prior to the receiver’s or the judge’s authorisation.

      Additionally, the party who has contracted with the insolvent debtor may demand that the receiver state whether the contract will be fulfilled or whether it shall be deemed terminated, within the term established by the judge.

      In such case, the party may suspend the execution of his obligation until the receiver has complied with this or has deposited a bond therefore. If the receiver does not act accordingly within the term established by the judge, the agreement shall be resolved ipso iure.

      Consequently, a licence agreement does not automatically conclude in case of bankruptcy of one of the parties; however, the party contracting party may request that the agreement is either complied with or terminated.

      In any case, since all intellectual property rights are part of the debtor´s assets and hence, part of the bankruptcy assets which are to be divided and settled among the creditors; licence agreements are subjected to such settlement and should remain in force with respect to the contracting party and the new proprietor of the licensed trademark.

      Finally, the parties may also foresee the termination of the licence agreement in case of insolvency of one of the parties, and the corresponding compensation, if applicable.

      Answer contributed by Lorena Mersan , Liliana Nolan from Mersan Abogados

      Last verified on Tuesday 23rd May 2017

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