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IACC Spring Conference Session 2: Where are counterfeits made, - - PowerPoint PPT Presentation
IACC Spring Conference Session 2: Where are counterfeits made, - - PowerPoint PPT Presentation
IACC Spring Conference Session 2: Where are counterfeits made, warehoused and sold? Eliminating the criminals place of doing business. Gustavo Giay GPG@marval.com May 19th, 2016 Why landlord liability is relevant in Latin America?
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Argentina: “La Salada” fair
- Located in the Province of Buenos Aires
- 3 warehouses, 30,000 vending stands, 250,000
shoppers per week
- 560 illegal fairs replicating La Salada model (“little
Saladitas”)
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Bolivia: “Uyustus” fair
- Located in the City of La Paz
- More than 1,000 vending stands
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Uruguay: “Techitos Verdes” fair
- Located in the city of Montevideo
- More than 100 vending stands
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Other Notorious Markets included in the
2015 USTR List
- Ciudad del Este (Paraguay)
- Galería Pagé and 25 de Março (Brazil)
- Tepito (México City)
- San Juan de Dios (Guadalajara, México)
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Why landlord liability is relevant in Latin America?
Standard approaches to combating counterfeiting in illegal fairs or markets not working as expected
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Why landlord liability is relevant in Latin America?
- The issue is still at a nascent stage
- Trademark laws generally silent on liability for
indirect infringers
- Lack of specific legislation discourages new cases
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Pursuing landlords for counterfeiting in Latin America
Wishful thinking or worthwhile remedy?
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Two successful precedents
- Shopping 25 de Março case (Brazil, 2012)
ü Brand owners sued the shopping mall manager (Calinda) ü Sao Paulo State Court of Justice found Calinda liable “Calinda had a duty to prevent the sale of counterfeits” ü Brazilian Superior Court of Justice confirmed (split decision) “When such illegal practice is widely known and reported by the press it becomes an undisputed fact which gives rise to liability”
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Two successful precedents
- Galeria La Morocha case (Argentina, 2013)
ü Street vendors used Galeria stores for overnight storage for a fee and Galeria manager collected a percentage ü Galeria manager rented the building from a third party ü Building owner personally collected the rent at the Galeria stores ü Building owner was convicted on the grounds that ”continuing with the lease constituted essential cooperation”
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Conclusions
- Actions against landlords are most appropiate when:
- Individual infringers are insolvent
- Scale in a market is severe
- Counterfeits are sold openly
- Brand owner suffers significant harm
- Landlord remains passive or inactive
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Conclusions
- Knowledge requirement is vital to ensure a successful
action
- Constructive knowledge should not be difficult to prove
- Applying nuisance laws (other than Trademark Law)
may also lead to a positive outcome
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