Decision 486, the new legislation governing Industrial Property in the Andean Community, (Colombia, Venezuela, Perú, Bolivia, Ecuador) created a legal action called "Action to Claim Rights".

The purpose of this action is to allow any person affected by the unauthorized use of his patents, industrial designs or trademarks by third parties to claim his rights before the competent national authority. Utility models, though, are excepted from the action.

Decision 486 also contemplates that, if the internal legislation of each member country of the Andean Community so authorizes, damages can be demanded in the action to claim rights.

Regarding patents and industrial designs, one of two situations can arise: a) the letters patent or the registration of the industrial design is applied for by somebody not having the right to obtain it, in which case the affected party may claim his right before the competent authority, requesting that the application or the right granted be transferred to him. b) The letters patent or the industrial design is obtained in detriment of another person who also has the right, in which case the affected party may request his being acknowledged as co-applicant or co-proprietor of the right.

As to the trademarks, Decision 486 provides for the possibility of claiming rights when the trademark is applied for or obtained in detriment of another person also having the right, in which case the affected party may claim his right as co-applicant or co-proprietor.

The action to claim rights lapses four years after the date of grant of the right, or two years since the subject matter of the protection would have begun to be exploited or used by whomever had obtained the right, whichever term expires earlier. The action shall not lapse if whoever obtained the right would have applied it for in bad faith.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.