By: Ana Barquero
I.-Introduction
The counterfeiting of brands to sell pharmaceutical products is on the rise lately, due to the need for various medications at low prices and as well as various hygienic products. In Nicaragua, it´s a crime of Intellectual Property to prevent “pirate” imitations from affecting the capital of the company by circumventing the payment of sales taxes on products reproduced under said operation and protection of brands.
Currently in Nicaragua, the pharmaceutical industry is one of the largest manufacturers that is certified for the production and distribution of gel alcohol, because of the health crisis, the proliferation of gel alcohol is being marketed exponentially and citizenship is being cheated through the piracy of that disinfectant. This type of product is offered in markets, local stores, and social networks.
The WHO warns that people must acquire gel alcohol through distributors that have a health license from the government of their country, to ensure that it has the appropriate formula to be effective against covid 19.
Cosep revealed that there are several laboratories in the country that are requesting MINSA permission to produce and register good-quality gel alcohol, for which it urged the authorities to speed up the process. And of course, the recommendation that when we buy alcohol in gel, we make sure that it has a health registration.
To determine unauthorized use, the following conditions must match:
a) Risk of confusion or association with the owner or legitimate owner of the sign, or with its establishments, activities, products, or services.
b) Unfair economic or commercial damage to the owner or legitimate owner of the sign due to a dilution of the distinctive force or the commercial or advertising value of the sign.
c) Unfair use of the prestige of the sign, or the reputation of its owner or legitimate owner.
II.- Data on counterfeiting and seizure at the national level
A 2016 study by the European Union Intellectual Property Office estimated that fake medicines cost the pharmaceutical sector €10.2 billion each year, resulting in the loss of 90,000 jobs, as well as €1.7 billion in lost government revenue.
Similarly, there are estimated data from the WHO showing that between 72,000 and 169,000 children die of pneumonia each year after receiving illicit drugs, and that fake anti-malarial medication could be responsible for an additional 116,000 deaths, affecting a wide range of products. including vaccines, antibiotics, contraceptives, antimalarials, antineoplastics, among others.
From 2017 to date, in Nicaragua, the counterfeiting and smuggling of drugs has increased and nearly 4,000 units of drugs smuggled from Nicaragua to Costa Rica have been seized so far in 2021. Antibiotics, multivitamins have been seized, analgesics and antihistamines, psychotropics and contraceptives.
Consequences of the illegal drug trade
• Endanger health, prolong illness, or cause death.
• Promote antimicrobial resistance and transmission of drug-resistant infections.
• They undermine trust in health professionals and health systems.
• They create mistrust about the efficacy of vaccines and medications.
• Reduce the limited budgets of families and health systems.
• Provide income to criminal networks
III.-Types of legal actions against Drug Counterfeiting
In Nicaragua, the Law on Trademarks and Other Distinctive Signs establishes that crimes in this matter can be prosecuted ex officio by the Public Ministry (which has a unit dedicated to the protection of Intellectual Property) without the need for a formal complaint of a private or right holder or by complaint of an interested person, including any entity or organization representative of any sector of production or consumers, at least for the purpose of preserving evidence and preventing the continuation of the infringing activity.
The criminal action to prosecute these crimes is public and prescribes six years from the last time the crime was committed.
a) Parallel measurements
From the legal point of view in Nicaragua, legal actions can be initiated through civil and/or criminal channels, and in both cases, there is also the right to request precautionary measures in order to prevent further damage from occurring with the sale and marketing of the product considered counterfeit.
a.1) Civil Action for Acts of Unfair Competition:
In Nicaragua, it is regulated by Law 601: Law for the Promotion of Competition, approved on September 28, 2006, published in La Gaceta No. 206, of October 24, 2006, and its reform Law 773 published in La Gaceta No. 200, of October 24, 2011. Said regulation has been created with the purpose of guaranteeing the free exercise of competition and business freedom; and through it, the National Institute for the Promotion of Competition, known as PROCOMPETENCIA, is created as a Public Law Institution, with legal personality and its own assets, an institute that is in charge of resolving the cases that are submitted to its knowledge, as well as being in charge of carrying out a public education program to promote the culture of competition.
a.2) Criminal Lawsuit for Violation of Intellectual Property Rights and Competition Unfair:
CHAPTER XIII of our current Penal Code contemplates CRIMES AGAINST FREE COMPETITION AND CONSUMERS and in its article. 274, defines it as acts of denigration, fraudulent induction, or comparison, which try to divert, for their own benefit or that of a third party, the clientele of an industrial or commercial establishment, to the detriment of a competitor or consumer, said acts will be punished with imprisonment from six months to two years or three hundred to six hundred days fine.
a.3) Measures in Infringement Action:
The measures established by Nicaraguan law, in an action for infringement of a protected right, one or more of the following measures may be ordered, among others:
a) The cessation of the acts that constitute the infraction.
b) Compensation for damages.
c) The seizure or seizure of the products that are the subject of the infringement, including the containers, packaging, labels, printed or advertising material and other materials resulting from the infringement, and of the materials. Confiscation of all documentary evidence relevant to the offense and other means that primarily served to commit the offense.
d) The prohibition of the import or export of the products, materials or means referred to in subparagraph c).
e) The destruction of the products subject to the infringement.
f) The necessary measures to prevent the continuation or repetition of the infringement, including the destruction of the products, materials or means referred to in subsection c). Such destruction will be carried out without compensation. In exceptional circumstances, the materials or means referred to in subparagraph c) may, without compensation, be disposed of outside commercial channels in a way that minimizes the risk of future infringements. When considering requests for such destruction, the judicial authorities will take into consideration, among other factors, the seriousness of the infringement, as well as the interest of third parties, holders of real rights, possession, or a contractual or guaranteed interest.
g) The publication of the conviction and its notification to interested persons, at the offender’s expense.
The charitable donation of counterfeit brand goods shall not be ordered by the judicial authority without the authorization of the right holder, except that in appropriate circumstances counterfeit brand goods may be donated to charity for use outside the channels. of commerce, when the removal of the mark removes the infringing characteristics of the merchandise, and the merchandise is no longer identifiable with the removed mark. In no case will the simple removal of the illegally adhered brand be sufficient to authorize the entry of the merchandise to the commercial channels.
The civil judicial authority, to better provide, may order the defendant to provide any information in its possession regarding any person involved in any aspect of the facts and regarding the means of production or distribution channels for the products or services that are the subject of the infraction. , including the identification of third parties involved in its production and distribution and its distribution channels, and provide this information to the right holder.
IV.-Applicable Legislation
-Law 380 on Trademarks and Other Distinctive Signs and its Reforms.
-Law 601 Law for the Promotion of Competition.
-Criminal Code of the Republic of Nicaragua and Code of Criminal Procedure of the Republic of Nicaragua