Month: October 2021

Shortly before the first of three days established to offer and acquire certain goods with Colombian Value Added Tax or “VAT” exemptions, the Superintendence of Industry and Commerce (“SIC”) has issued Authoritative Document No. 006. This document contains instructions to suppliers who will be part of this government initiative, either brick-and-mortar or through electronic commerce, to guarantee the rights of consumers during what is popularly known as “Days Without VAT”.

It is important to remember that this measure will apply only on October 28th, November 19th, and December 3rd of the current year, in accordance with Decree 1314 of 2021. Likewise, the VAT exemption will only apply to certain goods and under the fulfillment of specific requirements with respect to recipients, means of payment, delivery times of the goods acquired, limit of units available, warranties, and invoicing, among others, included in articles 38 and 39 of Law 2155. Considering the above, the SIC issued the following instructions that all suppliers participating in this event must follow:

• They must publish in their shops and/or media information regarding turn order, access links, and prior registration, among others, at least two (2) days prior. Likewise, they must inform if the initial conditions vary and if the buyer will have to incur in expenses that are not included in the benefit of VAT exemption.

• They must also inform the possible date of delivery for products in cases of online purchases and for those products that, for some reason, the buyers cannot immediately take with them. In any case, the delivery date may not exceed two (2) weeks following the purchase.

• Consumers must have access to the advertised price of the products, and it must be specified whether it includes the VAT discount. In addition, both the price of the purchased goods and the VAT discount must always be included in the invoice.

• Promotions, offers or additional incentives can be made on the goods on which the VAT exemption applies, so several discounts may be applied simultaneously but this must always be included on the sales invoice. This way, consumers must be able to fully identify the price of the product without discounts, the value of the discount due to the VAT exemption and the value that corresponds to the promotional or additional discounts offered by the supplier.

• In advertising pieces, both physical and digital, the terms, conditions, and restrictions of the current promotions must be informed, and it must be clarified that the VAT discount does not correspond to an offer by the supplier but is an incentive created by the National Government. As such, they should avoid including phrases or expressions that may mislead, deceive, or confuse buyers.

• The proper processing of consumers’ personal data must be ensured in accordance with Law 1581 of 2012 (Habeas Data) at all times.

• Finally, if suppliers offer their products through brick-and-mortar shops, they must guarantee compliance with all the biosecurity measures established by the National Government and by the corresponding local authorities, mitigating the risk of infection and spread of COVID-19.

If you have any questions related to the protection of consumer rights, please contact BéndiksenLaw for counsel.

On August 25 the Court of Justice of the Andean Community issued a prejudicial interpretation regarding the Claim Against Infringement of Industrial Property Rights and the deadlines that trademark owners must comply with to access this protection. In its interpretation, the Court reminded that the owner of a trademark registration has the right, among others, to prevent third parties from making commercial use of an identical or similar sign, without their authorization, in relation to any product or service when it presents a risk of confusion or association among consumers with respect to the owner of the trademark. In this case, the owner of the trademark may initiate the Claim Against Infringement of Industrial Property Rights. However, it is important to make use of this protection as soon as the infringement becomes known, since in order to protect the principle of legal certainty in the market, this claim expires, as such it is not possible to take legal action at any and all times.

Decision 486 of the Andean Community Commission in its article 244 establishes that this claim has an expiration period of two years from the moment in which the owner of the trademark became aware of the infringement or five years after the infringement was last committed. After the expiration of these terms, the claim becomes unenforceable. In this regard, the Court of Justice of the Andean Community clarified that the two-year term is calculated from the time the rights holder became aware of the infringing act, regardless of the type of infringement in question. On the contrary, for the five-year term the type of infringement committed must be taken into consideration. Consequently, depending on whether it is an instantaneous, continuous, permanent, or complex infringement, the date from which the five years will be calculated varies as follows:

• Since instantaneous infractions require only that a single act that configures the infringement be performed, the term is computed from the moment in which the act is consummated.
• Regarding continuous infringements, which are understood as identical acts that are continuously repeated over time and that are part of a single process, the expiration term is calculated from the date of completion of the last identical act.
• In the case of permanent infractions, or single acts that have a prolonged duration in time, the term of five years is calculated from the moment in which the conduct ceases.
• Finally, complex infringements, which are series of multiple acts whose purpose is to achieve a single purpose, the term is computed from the date of completion of the last act that consummates the infringement.

Finally, it is important to bear in mind that if the owner of the trademark does not initiate the claim within the two-year term from when they became aware of the infringement, they will not be able to resort to the five-year term, since the assumptions that allows its initiation are different. Therefore, if the defendant proves that the owner already knew about the infringement, they may invoke the expiration of the claim which will then be unenforceable, generating the impossibility of resorting to the five-year expiration term.

If you or your company are facing a possible trademark infringement, do not hesitate to contact BéndiksenLaw for assistance.