RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/COL/1
IP/Q2/COL/1IP/Q3/COL/1
IP/Q4/COL/1
27 June 2001
(01-3221)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
COLOMBIA1
This document reproduces the introductory statement by the delegation of Colombia, the
questions addressed to Colombia and the corresponding replies in connection with the review of
legislation at the meeting of the Council held from 27 to 30 November 2000.2
_______________
I. INTRODUCTORY STATEMENT
In pursuance of its commitment under Article 63 of the Agreement on Trade-Related Aspects
of Intellectual Property Rights, Colombia notified its legislation in due time and has adopted
important legislative amendments in order to meet its international commitments, as it has always
done.
In our view, the progress made in regulating intellectual property should be the subject of an
in-depth review in order to determine whether the protection objectives laid down in Article 7 of the
Agreement are being met.  We believe that this Council should undertake a careful assessment of thereciprocal benefits derived from the TRIPS Agreement and make a significant effort to evaluate the
situation of transfer of technology.
We will now describe the background to the regulation of intellectual property in Colombia.
As a signatory to the Cartagena Agreement, Colombia, like the other countries members of this treaty,gives the Commission of the Andean Community competence to regulate intellectual property.
Consequently, the competence for adopting intellectual property provisions in Colombia is divided
between the Commission and the national authorities.
In this context, ongoing efforts are being made both within the Andean Community and in
Colombia itself to adopt legislation that meets the requirements of the relevant international texts.
Andean intellectual property legislation covers th ree areas:  industrial property, copyright, and
the protection of plant varieties, to which I shall refer below.
                                                     
1 For the laws and regulations relevant to the subject under review and notified by Colombia under
Article 63.2 of the Agreement, see documents IP/N/1/C OL/1; IP/N/1/COL/C/1 to 4;  IP/N/1/COL/I/1 to 3;
IP/N/1/COL/P/1 to 4;  and IP/N/1/6/COL/1.
2 The Minutes of the Meeting were circulated in document IP/C/M/29.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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A. INDUSTRIAL PROPERTY REGIME
In this area, the most recent developments date from June 1978 when Decision 85 of the
Commission of the Cartagena Agreement was adopted in order to regulate industrial property as a
whole.  This provision remained in force until 12 December 1991, when Decision 311 was adopted,which in turn was replaced by Decision 313 of 12 February 1992.  Subsequently, in January 1994,
Decision 344 entered into force and, lastly, on 1 December 2000, Decision 486 will come into effect
and the industrial property regime will then be fu lly in harmony with the TRIPS Agreement and will
be even more comprehensive.
The provisions expected to constitute the future TRIPS Agreement were the basis for
Decision 344.  This is why this Decision determines levels of protection that are very similar to theprovisions now in the TRIPS Agreement, particularly as regards the term of protection, the granting of
patents for pharmaceutical products, protection of appellations of origin, and protection of well-
known signs inter alia .
Although a framework that provided ample protection already existed, there can be little
doubt that Decision 486 recently extended protection.  Regarding enforcement, it should be noted that,
although Decision 486 for the first time regulate s this issue for the countries of the Andean
Community, for a long time before this Colombia ha d legal mechanisms designed to protect all forms
of intellectual property, inter alia  through civil action against infringement, the application of
precautionary measures, proceedings against unfair competition and criminal action.
Decision 486 was notified in document IP/N/1/COL/I/3 and covers the following topics:
• Patents;
• utility models;
• layout-designs of integrated circuits;
• trademarks:
• geographical indications;
• well-known distinctive signs;
• business secrets.
Without trying to be exhaustive, the following aspects of the Decision can be highlighted:
- It is made clear that biotechnology may be the subject of a patent;
- protection is given to creators of layout-designs of integrated circuits;
- the term of protection for industrial designs is extended to ten years;
- the concept of geographical indications is included, distinguishing between
appellations of origin and indications of origin;
- licences may be granted to use trademarks that are in the process of being registered;
- protection is granted for clothing;
- measures have been adopted to ensure enforcement of industrial property rights by
means of civil, administrative, preventive and border measures;  andIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 3
- more flexible and transparent procedures are established for the registration of
trademarks and the granting of patents.
B. COPYRIGHT
Copyright is protected under the Constituti on (Article 61), by Decisions of the Andean
Community (Decision 351 of 1993), legislative pr ovisions (Law No. 23 of 1982, Law No. 44 of 1993)
and Executive orders (Decrees Nos. 1360 of 1989, 460 of 1995, and 1278 of 1996).  This set of rules
provides a system of copyright protection that fully meets the requirements in the TRIPS Agreement.
It also meets the requirements of major international instruments such as the Berne Convention for the
Protection of Literary and Artistic Works, as regards copyright, the Rome Convention, as regards
neighbouring rights, and the WIPO Treaties of 1996.
Decision 351 of the Andean Community of  1993, Common Provisions on Copyright and
Neighbouring Rights, specifically mentions the protection of databases and computer programs as
literary works.  It also includes rental rights fo r such works, going beyond the requirements of the
TRIPS Agreement.
As regards terms of protection, Decision 351 allows countries the possibility of granting
longer periods by means of domestic legislation.  Consequently, pursuant to Laws No. 23 of 1982 and
No. 44 of 1993, Colombia grants protection for 80 years after the death of the author, thus meeting the
requirements in the TRIPS Agreement.
With regard to enforcement, Law No. 44 of 1993 provides for deterrents such as
imprisonment.  With the entry into force of the new Criminal Code in July 2001, such penalties will
be reinforced and imprisonment will be extended to other acts in fulfilment of the requirements in the
WIPO Copyright Treaty (Law N o. 565 of 2000) and the WIPO Performances and Phonograms Treaty.
It should also be mentioned that there is an  anti-piracy agreement involving the public and
private sectors with the objective of uniting efforts to prevent such offences.  Special units have been
set up to investigate infringements of copyright and neighbouring rights and these are under the
responsibility of the State Prosecuting Authority, the National Police Authorities and the
Administrative Department of Security.
Law No. 603 of 2000 has recently been enacted and requires non-commercial partnerships
and commercial firms to provide the competent authority with an annual management report on "the
status of compliance with intellectual property and copyright regulations".
Presidential Directive No. 01 of 1999 instructed all Government and educational institutions
to make proper use of computer programs and other creations and productions protected by copyright,
which today play an important role in the information carried by networks.
With reference to the comments by the Ambassador , I simply wish to reaffirm that Colombia
has indeed implemented a series of measures on copyright and neighbouring rights which provideeffective and appropriate measures to ensure their proper and timely observance.
We refer first of all to the Presidential Directive of 25 February 1999, an administrative act by
which the President of Colombia notified the officials of the Colombian State that observance and
enforcement of the national Government’s policies were mandatory on pain of punishment forcontempt.  In this case, given the increasing use by Government services of elements (products or
services) protected by copyright or neighbouring rights, the Government of Colombia deems it
necessary to make public officials aware of the importance of these rights; the need to develop andIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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implement campaigns to promote awareness of such rights;  and to establish procedures to ensure that
the public bodies concerned use and continue to use goods that respect copyright inter alia .
It should be noted that this Presidential Directive covers public sector colleges and
universities, which are the immense majority in Colombia.
We should also refer to Law No. 603 of 27 July 2000, by which the Colombian Congress
amended the Commercial Code, adding the liability of administrators or legal representatives of non-
commercial partnerships and commercial firms who, when submitting their management reports to
their governing boards on business trends and the company’s economic, administrative and legal
situation, will have to report on the status of compliance with intellectual property and copyright rulesby the firm in question.  This Law also provides that the Colombian tax authorities may verify the
status of compliance with copyright laws by firms in order to ensure that they are not evading tax by
infringing such rights.
Lastly, it is important to refer once again to the anti-piracy agreement, which involves
29 organizations in the public and private sectors that have joined forces since 1995 to define and
promote together a national policy to defend copyright and neighbouring rights.  The joint action by
the organizations belonging to this agreement is re sponsible for many of the regulatory and criminal
prosecution measures which Colombia now has in this respect.
_______________
The representative of the European Communities indicated that the Communities had been
encouraged by the progress made by Colombia and that they also appreciated any other efforts thatmight be made in this respect.  In particular, they would like Colombia to provide statistics on
enforcement and combating piracy and fraud, which continue to be subjects of great concern to their
delegation.
_______________IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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II. REPLIES TO QUESTIONS POSED BY CANADA
1. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61 of the TRIPS Agreement?
Article 61 of the TRIPS Agreement reads as follows:
"Members shall provide for criminal procedures and penalties to be applied at least in cases of
wilful trademark counterfeiting or copyright piracy on a commercial scale.  Remedies
available shall include imprisonment and/or monetary fines sufficient to provide a deterrent,
consistently with the level of penalties applied for crimes of a corresponding gravity.  In
appropriate cases, remedies available shall also include the seizure, forfeiture and destruction
of the infringing goods and of any materials and implements the predominant use of whichhas been in the commission of the offence.  Members may provide for criminal procedures
and penalties to be applied in other cases of infringement of intellectual property rights, in
particular where they are committed wilfully and on a commercial scale."
The penalties for infringement of copyright ar e laid down in Law No. 44 of 1993 as follows:
"Article 51. – The following shall be liable to imprisonment for two to five years and a fine of
five to 20 times the legal minimum monthly wage:
1. Any person who publishes an unpublished literary or artistic work, or part thereof, by
any means, without the express prior authorization of the owner of rights.
2. Any person who enters in the National Register of Copyright a literary, scientific or
artistic work in the name of a person other than the true author, or with its title altered
or deleted, or with its text altered, deformed, amended or distorted, or with a falsemention of the name of the publisher or phonogram, film, videogram or software
producer.
3. Any person who in any way or by any means reproduces, disposes of, condenses,
mutilates or otherwise transforms a literary, scientific or artistic work without the
express prior authorization of the owners thereof.
4. Any person who reproduces phonograms, videograms, software or cinematographic
works without the express prior authorizati on of the owner, or transports, stores,
stocks, distributes, imports, sells, offers for sale, acquires for sale or distribution or in
any way deals in such reproductions.
Paragraph .  If either the material embodiment or title page of or the introduction to the
literary work, phonogram, videogram, software or cinematographic work uses the name,
business style, logotype or distinctive mark of the lawful owner of rights, the foregoing
sanctions shall be increased by up to half.
Article 52. – The following shall be liable to imprisonment for a term of from one to four
years and a fine of three to 10 times the legal minimum monthly wage:
1. Any person who publicly performs or shows theatrical or musical works,
phonograms, videograms, cinematographic works or any other literary or artisticwork without the express prior authorization of the owner of the rights therein;IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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2. any person who rents or otherwise markets phonograms, videograms, software or
cinematographic works without the express prior authorization of the owner of the
rights therein;
3. any person who fixes, reproduces or markets public performances of theatrical or
musical works without the express prior authorization of the owner of the rights
therein;
4. any person who arranges or carries out the communication, fixation, performance,
display, marketing, dissemination or distri bution or presentation, or by any other
means that is known at present or may be known in the future, makes use of a workwithout the express prior author ization of the owner thereof;
5. any person who makes false statements directly or indirectly intended to secure the
payment or distribution of authors’ royalties, by altering data relating to public
attendance and the type, price and number of tickets sold for a show or gathering, andthe number of complimentary tickets distributed, in a manner liable to prejudice the
author;
6. any person who makes false statements directly or indirectly intended to secure the
payment or distribution of authors’ royalties, by altering the numbers of copiesproduced, sold or distributed free of charge, in a manner liable to prejudice the
author;
7. any  person who makes false statements intended to secure the distribution of authors’
royalties by improperly omitting, replacing or incorporating the particulars of theworks concerned;
8. any person who engages in acts that have the effect of misrepresenting the true
proceeds from a show or meeting;
9. any person who retransmits, fixes, reproduces or uses any sound or audiovisual
medium to disclose the broadcasts of broadcasting organizations without the expressprior authorization of the owner thereof;
10. any person who receives, disseminates or by any other means distributes the
broadcasts of subscriber television systems without the express prior authorization of
the owner thereof.
Paragraph .  In court proceedings relating to the of fences provided for in this Article, the
criminal action shall lapse on renunciation by the injured party, provided that the defendant
provides indemnification for any prejudice caused before first-instance ruling is handed
down."
Colombia’s new Criminal Code (Law No. 599 of 2000) increases the fines and creates new
criminal categories of copyright infringement.  It states the following:
Article 270. – Infringement of the author’s moral rights .  Any person who carries out any of
the following acts shall be liable to a term of  imprisonment of two (2) to five (5) years and a
fine of twenty (20) to two hundred (200) ti mes the current minimum legal monthly wage:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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1. Publishes, in full or in part, without the express prior authorization of the owner of
the rights, an unpublished literary, artistic, scientific, cinematographic, audiovisual
work or phonogram, computer program or software.
2. Enters in the Copyright Register a literary, artistic, scientific or audiovisual work or
phonogram, computer program or software in the name of a person other than the true
author or with its title altered or deleted, or with its text altered, deformed, amended
or distorted, or with a false mention of the name of the publisher or producer.
3. Condenses, mutilates or transforms a literary, artistic, scientific or audiovisual work
or phonogram, computer program or software , by any means or process, without the
express prior authorization of the owner thereof.
Paragraph. – If either the material embodiment or title page of or the introduction to the
literary, artistic or scientific work, phonogram, videogram, computer program or software or
cinematographic work uses the name, business style, logotype or distinctive mark of thelawful owner of rights, if the title or the text of the work is changed, deleted, altered, modified
or mutilated, the foregoing penalties shall be increased by half.
Article 271. – Fraud concerning the author’s economic rights .  Any person who carries out
any of the following acts shall be liable to a term of imprisonment of two (2) to five (5) yearsand a fine of twenty (20) to one thousand (1,000) times the current minimum legal monthly
wage, unless otherwise provided in the law:
1. Reproduces a literary, scientific, artistic or cinematographic work, phonogram,
videogram, software or computer program, or transports, stores, stocks, distributes,
imports, sells, offers for sale, acquires for sale or distribution, or in any way deals in
such reproductions, without the express prior authorization of the owner.
2. Publicly performs or shows theatrical or musical works, phonograms, videograms,
cinematographic works or any other literary or artistic works without the express
prior authorization of the owner of the rights therein.
3. Rents or otherwise markets phonograms, videograms, computer programs or software
or cinematographic works without the express prior authorization of the owner of the
rights therein.
4. Fixes, reproduces or markets public performances of theatrical or musical works
without the express prior authorization of the owner of the rights therein.
5. Arranges or carries out the communication, fixation, performance, display,
marketing, dissemination, distribution or presentation by any means or process of any
work protected under this title without th e express prior authorization of the owner
thereof.
6. Retransmits, fixes, reproduces or discloses by any sound or audiovisual medium  the
broadcasts of broadcasting organizations without the express prior authorization of
the owner thereof.
7. Receives, disseminates or distributes by any means the broadcasts of subscriber
television systems without the express prior authorization of the owner thereof.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 8
Paragraph. – Where the number of units resulting from the acts covered by paragraphs 1, 3
and 4 of this Article do not exceed one hundred (100), the penalty shall be reduced by half.
Article 272. – Infringement of mechanisms to protect the author’s economic rights and other
fraud . Any person who carries out any of the following acts shall be liable to a fine:
1. Overcomes or circumvents the technological measures adopted to restrict
unauthorized use.
2. Deletes or alters the information required for the electronic management of rights or
imports, distributes or communicates copies on which this information has beendeleted or altered.
3. Manufactures, imports, sells, leases or in any other form distributes to the public a
device or system that allows a satellite signal carrying programmes to be decrypted
without the authorization of the lawful distributor of the signal or in any other formcircumvents, avoids, renders unusable or removes a device or system that allows the
owners of the right to control the use of their works or productions, or to prevent or
restrict any unauthorized use thereof.
4. Submits declarations or information directly or indirectly intended for the payment,
collection, settlement or distribution of the author’s economic rights or neighbouring
rights, altering or falsifying the data needed for this purpose by any means or process.
2. What protection does your copyright legislation afford to "foreign works"?
In Colombia, foreign works enjoy the same rights as those provided to Colombian nationals
under the law, in accordance with Article 5(1) of the Berne Convention, Article II.1 of the Universal
Copyright Convention, and Article 3 of the TRIPS Agreement.  As regards the protection of
neighbouring rights, national treatment also applies in accordance with Article 2.1 of the Rome
Convention.
The following are the international agreements on copyright and neighbouring rights to which
the Government of Colombia is party:
- Berne Convention for the Protection of Literary and Artistic Works, of 1886, with the
latest amendment signed at Paris in 1971, to which Colombia acceded under Law
No. 33 of 1987;
- International Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations, signed at Rome in 1961, to which Colombia acceded
under Law No. 48 of 1975;
- Convention for the Protection of Producers of Phonograms against Unauthorized
Duplication of their Phonograms, signed at Geneva in 1971, to which Colombia
acceded under Law No. 23 of 1992;
- Universal Copyright Convention, signed at Geneva in 1952 and revised at Paris in
1971, to which Colombia acceded under Law No. 48 of 1975.  This Law was enactedby Decree No. 1821 of 2000;
- Treaty on the International Registration of Audiovisual Works, signed at Geneva in
1989, to which Colombia acceded under Law No. 26 of 1992;IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 9
- Convention on Literary and Artistic Property (4th American International Conference,
Buenos Aires, 1910), to which Colombia acceded under Law No. 7 of 1936;
- Inter-American Convention on Copyright in Literary, Artistic and Scientific Works,
signed at Washington in 1946, to which Colombia acceded under Law No. 6 of 1970;
- Agreement on Ibero-American Cinematographic Integration, to which Colombia
acceded under Decree No. 1448 of 1995;
- Copyright Agreement of 1913 among Colombia, Bolivia, Ecuador, Peru and
Venezuela, to which Colombia acceded under Law No. 65 of 1913;
- Agreement Establishing the World Trade Organization (WTO), which contains the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to
which Colombia acceded under  Law No. 170 of 1994;
- Free Trade Agreement, signed by Colombia, Mexico and Venezuela (G-3), to which
Colombia acceded under  Law No. 172 of 1994;
- Convention Establishing the World Intellectual Property Organization (WIPO),
signed at Stockholm in 1967, to which Colombia acceded under  Law No. 46 of 1979.
Colombia approved the WIPO Copyright Treaty under  Law No. 565 of 2000.  The WIPO
Performances and Phonograms Treaty was approved under  Law No. 545 of 2000.  Following the
positive conclusion of the review of constitutionality by the Constitutional Court, these internationaltreaties will shortly be deposited with the Director-General of the WIPO by the Government of
Colombia.
Bilateral copyright agreements signed by Colombia currently in force
- Bilateral copyright agreement between Colo mbia and Germany, ratified by Colombia
under  Law No. 29 of 1964;
- Bilateral copyright agreement between Colombia and Ecuador;
- Bilateral copyright agreement between Colombia and Spain, ratified by Colombia
under Decree No. 653 of 1886;
- Bilateral copyright agreement between Colombia and France, ratified by Colombia
under  Law No. 12 of 1959;  and
- Bilateral copyright agreement between Colombia and Switzerland, ratified by
Colombia under  Law No. 15 of 1908.
3. Please confirm whether Decision 486 on intellectual property, which was passed on
14 September 2000, will take effect in December 2000.  What are the key improvements
introduced by this Decision in  respect of TRIPS obligations?
Decision 486 of the Commission of the Cartagena Agreement – new Common Andean
Industrial Property Regime –replaces Decision 344 and will enter into force in Colombia on
1 December 2000 next.  This Decision contains the following major innovations in the area of
industrial property, which are fully in harmony with the TRIPS Agreement:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 10
- In accordance with Articles 3 and 4 of the TRIPS Agreement, Member Countries of
the Andean Community are obliged to grant nationals of countries Members of the
World Trade Organization (WTO) and the Paris Convention national treatment andmost-favoured-nation treatment;
- it is made clear that biotechnology may be the subject of a patent;
- in accordance with Article 62.1 of the TRIPS Agreement, industrial property
formalities are speeded up by eliminating procedures related to official translations of
documents
3;
- layout-designs of integrated circuits are protected in accordance with Section 6 of
Part II of the TRIPS Agreement;
- special protection is given to appellations of origin for wines and spirits, in
accordance with Article 23 of the TRIPS Agreement.  The concept of geographical
indications is also included, distinguishing between appellations of origin and
indications of origin;
- the term of protection for industrial designs is extended from eight to 10 years and
clothing may be registered, in accordance with Articles 26.3 and 25.2 of the TRIPS
Agreement respectively;
- enforcement of industrial property rights is regulated inter alia  by establishing action
for their infringement, provisional and border measures, and action for unfaircompetition.
III. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
A. 
GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health
and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS
Agreement.  If yes, please explain how such measures are consistent with the provisions of the
TRIPS Agreement.
Decision 486 provides a mechanism for the compulsory licensing of patents and layout-
designs of integrated circuits for reasons of failure to exploit, public interest or emergency, or if thereis violation of the rules on free competition, the aim being to improve aspects of social concern such
as health, nutrition and technological progress.  The Decision provides the following in this respect:
"Article 61. - At the expiry of a period of three years following a patent grant or of four years
following the application for a patent, whichever is longer, the competent national office maygrant a compulsory licence mainly for the industrial manufacture of the product covered by
the patent, or for full use of the patented process, at the request of any interested party, but
                                                     
3 Article 8, Decision 486, of the Commission of the Cartagena Agreement:  "All documents that are
processed by the competent national office shall be submitted in Spanish.  Otherwise, they shall be accompaniedby unauthenticated Spanish translations.  The compet ent national office may, however, dispense with the
presentation of the translations of those documents should it deem this advisable."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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only if, at the time of the request, the patent had not been exploited in the manner specified in
Articles 59 and 60 in the Member Country in  which the licence is sought, or if the
exploitation of the invention had been suspended for more than one year.
(…)
Article 65. – Following the declaration by a Member Country of the existence of public
interest, an emergency or national security considerations, and only for as long as those
considerations exist, the patent may be subject to compulsory licensing at any time.  In that
case, the competent national office shall grant the licences that are applied for.  The owner of
the patent so licensed shall be notified as soon as is reasonably possible (…)"
Article 66. – The competent national office may, either ex officio or at the request of a party,
and after having obtained the consent of the national anti-trust authority, grant compulsory
licences where practices are noted that are detrimental to the exercise of free competition,
especially where they constitute an abuse by the patent owner of a dominant position in themarket (…)
Article 67. – The competent national office shall grant a licence, upon request by the owner of
a patent whose exploitation necessarily requires the use of another patent, and that right
holder has been unable to secure a contractual licence to the other patent on reasonablecommercial terms.
(…)Article 99. – The competent national authority may, given a lack of exploitation or for reasons
of public interest, in particular a national emergency, or for public health or national security
considerations, or to remedy an anti-competitive practice, and at the request of an interested
party or of a competent authority, order the following at any time:
(a) That layout-designs that are registered or for which registration has been filed shall be
used or exploited industrially or commercially by a government institution or by one
or more public or private legal entities that have been expressly appointed to do so;or
(b) that the said layout-design shall be subjec t to the granting of one or more compulsory
licences, in which case the competent authority may grant such a licence to any
person who applies for it, subject to the co nditions that have been stipulated for that
purpose (…)"
B. 
COPYRIGHT AND NEIGHBOURING RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic  works, as specified in Article 9 of the TRIPS
Agreement which requires Members to comply with  Articles 1-21 of the Berne Convention and
the Appendix to the B erne Convention (1971).
Article 13 of the Decision of the Andean Community recognizes that the authors of literary
and artistic works or their successors in title have the exclusive right to carry out, authorize, or
prohibit:
(a) The reproduction of the work by any means or process;IP/Q/COL/1, IP/Q2/COL/1,
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(b) the communication of the work to the public by any means serving to convey the
words, signs, sounds or images thereof;
(c) the distribution of copies of the work to the public by means of sale, rental or hiring;(d) the importation into the territory of any Member Country of copies made without the
authorization of the owner of rights;
(e) the translation, adaptation, arrangement or other transformation of the work.Articles 14, 15, 16 and 17 of the Decision define and give an indicative list of the rights
mentioned.
The Appendix to the Berne Convention is implemented through Articles 45 and 58 of  Law
No. 23 of 1982.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
With regard to computer programs, Article 23 of Decision 351 of the Andean Community of
1993 guarantees their protection through copyright on the same terms as literary works.  The
protection covers both operating programs and application programs, in the form of either source codeor object code.
Concerning data compilations, Article 28 of Decision 351 of the Andean Community of 1993
states that these are protected in so far as the selection or arrangement of the contents constitutes an
intellectual creation.  The protection granted shall not extend to compiled data or information, but itshall not affect any rights subsisting in the wo rks or materials constituting the said database.
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
Article 13 of Decision 351 of the Andean Community of 1993 gives the author or his
successor in title the right to authorize or prohibit th e distribution of copies of the work to the public
by means of sale, rental or hiring.  This rental right covers all kinds of literary and artistic works,including computer programs and cinematographic works.
In addition, Article 37(c) gives producers of phonograms the right to authorize or prohibit the
distribution of the original and any copy of their phonograms to the public, by means of sale, rental or
any other means.
5. Please state whether your legislation provides for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Article 21 of Decision 351 of the Andean Community of 1993 provides that limitations and
exceptions to copyright established by domestic legislation in Member Countries shall be confined to
those cases that do not adversely affect the normal exploitation of the works nor unjustifiably
prejudice the legitimate interests of the owner or owners of the rights.
The following are the provisions concerning limitations and exceptions to copyright:Article 22 of Decision 351 of the Andean Community of 1993 states the following:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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"Article 22. – Without prejudice to the provisions of Chapter V and those in the foregoing
Article, it shall be lawful, without the authorization of the author and without payment of any
remuneration, to do the following:
(a) Quote published works in another work, provided that the source and name of the
author are given, and on condition that the quotations are made in accordance with
fair practice and to the extent justified by the purpose;
(b) reproduce by reprographic means for teaching or for the holding of examinations in
educational establishments, to the extent justified by the purpose, articles lawfullypublished in newspapers or magazines, or brief extracts from lawfully published
works, on condition that such use is made in accordance with fair practice, that it does
not entail sale or any other transaction for payment and that no profit-making
purposes are directly or indirectly pursued thereby;
(c) reproduce a work in single copies on behalf of a library or for archives whose
activities are not conducted for any direct or indirect profit-making purposes,
provided that the original forms part of the permanent stocks of the said library or
archives and the reproduction is made for the following purposes:
(i) to preserve the original and replace it in the event of loss, destruction or
irreparable damage;  or
(ii) to replace, in the permanent stocks of another library or archives, an original
that has been lost, destroyed or irreparably damaged;
(d) reproduce a work for the purposes of judicial or administrative proceedings, to the
extent justified by the purpose;
(e) reproduce and distribute through the press, or transmit by broadcasting or public
cable distribution, articles on topical subjects and commentaries on economic,
political or religious subjects published in newspapers or magazines, or broadcastworks of the same nature, in so far as reproduction, broadcasting or distribution to the
public have not been expressly reserved;
(f) reproduce and make accessible to the public, in connection with the reporting of
current events by means of photography, cinematography, broadcasting or cabledistribution to the public, works seen or heard in the course of such events, to the
extent justified by the informatory purpose;
(g) reproduce in the press or by broadcasting or transmission to the public political
speeches and also dissertations, addresses, sermons, speeches delivered in the courseof judicial proceedings or other works of similar character presented in public, for the
purpose of reporting current events, to the extent justified by the purpose and subject
to the right of the authors to publish collections of such works;
(h) undertake the reproduction, transmission by broadcasting or cable distribution to the
public of the image of an architectural work, work of fine art, photographic work or
work of applied art located permanently in a place open to the public;
(i) in the case of broadcasting organizations, make ephemeral recordings using their own
facilities and for use in their own broadcasts of a work in respect of which they haveIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 14
the right of broadcasting.  The broadcasting organization shall be obliged to destroy
the recording within the time or under th e circumstances provided for in national
legislation;
(j) effect the performance or execution of a work in the course of the activities of an
educational institution, by the staff and students of the said institution, provided that
no charge is made for admission and no direct or indirect profit-making purpose is
pursued and that the audience consists solely of the staff and students of the
institution or relations or guardians of pupils and other persons directly associated
with the activities of the institution;
(k) in the case of a broadcasting organization, ma ke a transmission or retransmission of a
work originally broadcast by it, provided that the public transmission or
retransmission occurs at the same time as the original broadcast and the work is
broadcast or transmitted publicly without any alteration."
Law No. 23 of 1982 provides the following limitations and exceptions:
"Article 31.  It shall be permissible to quote an author by transcribing the necessary passages
in so far as they are not of such length and continuity that they might reasonably be
considered a simulated, substantial reproduction constituting a prejudice for the author of thework from which they were taken.  Every quotation shall mention the name of the author of
the work quoted and the title of that work.
Where the inclusion of the works of others constitutes the main part of the new work, the
courts shall, at the request of any interested party, make an equitable assessment in an oralproceeding, awarding a proportional amount to each of the owners of the works included.
Article 32.  It shall be permissible to make use, to the extent justified by the purpose, of
literary or artistic works, or parts thereof, by way of illustration in works intended for
teaching, by means of publications, broadcasts or sound or visual recordings, or to
communicate, without gainful intent and for teaching purposes works broadcast for use in
schools, education, universities and professional training, subject to the obligation to mentionthe name of the author and the title of the works thus used.
Article 33.  Any title, photograph, illustration and commentary on a current event, published
by the press or broadcast by radio or television, may be reproduced in so far as this has not
been expressly prohibited.
Article 34.  It shall be lawful to reproduce, distribute and communicate to the public news or
other information on facts or events that have been publicly disseminated by the press or by
broadcasting.
Article 35.  Speeches delivered or read at deliberative assemblies, in the course of legal
proceedings or proceedings brought before other public authorities, or any lecture, speech,
sermon or other similar work delivered in public, may be published in the periodical press, or
broadcast by radio or television in the form of news reports, and without any authorization,
provided that the ownership of the works concerned has not been expressly reserved.  It isunderstood that an author’s works of this kind may not be published in separate collections
without his permission.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 15
Article 36.  Publication of a person’s portrait shall be free in so far as it is related to scientific,
educational or cultural purposes in general or to facts or events of public interest or that may
have occurred in public.
Article 37.  It shall be lawful to reproduce, by any means, a literary or scientific work, such
reproduction having been arranged or effected by the party concerned in one copy for his
private use and without gainful intent.
Article 38.  Public libraries may produce, for the exclusive use of their readers and where
such reproduction is necessary for conservation or for exchange services with other libraries,
likewise public, one copy of protected works deposited in their collections or archives andwhich are out of print on the local market.  Such copies may also be produced singly by the
library that receives them, should that be necessary for conservation, and solely for the use of
readers.
Article 39.  It shall be permissible to reproduce, by painting, drawing, photography or
cinematography, works that are permanently located on public highways, streets or squares,
and to distribute such reproductions or works and communicate them to the public.  With
regard to works of architecture, this provisiona l shall be applicable solely to external views.
Article 40.  Lectures or talks given at establishments of higher, secondary or primary
education may be freely noted and collected by the students to whom they are addressed, but
their full or partial publication or reproduction shall be prohibited without the written
authorization of the person who gave them.
Article 41.  Any person shall be allowed to reproduce the Constitution, laws, decrees,  orders,
regulations and other administrative texts and judicial decisions, subject to the obligation to
abide strictly by the official edition and provided that such reproduction is not prohibited.
Article 42.  The reproduction of protected works or of fragments of such works shall be
permitted, in so far as it is considered necessa ry by the competent authority, for use in the
course of judicial proceedings or by the legislative or administrative bodies of the State.
Article 43.  The creator of an architectural design may not prevent the owner from making
alterations to it, but he shall have the right to prohibit his name from being associated with the
altered work.
Article 44.  The use of scientific, literary and artistic works in a private residence without
gainful intent shall be free."
C. 
TRADEMARKS
6. Please explain what the requirements of use a re, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of aregistration in that respect.
In Colombia, rights in trademarks are governed by the ownership system under which
ownership is acquired through registration without any need to prove use of the trademark before the
registration can be granted.  In this respect, Article 154 of Decision 486 provides that "Registration of
a trademark with the competent national office shall confer the exclusive right to its use".
The owner of a registered trademark is nevertheless obliged to use it otherwise his right may
be cancelled at the request of an interested third party, provided that no proof is given that the sign hasIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 16
been used within the three years preceding the date on which the respective action was initiated.
Article 165 of Decision 486 governs cancellation of trademark registrations for failure to use in the
same terms as Article 19 of the TRIPS Agreement.  Also consistent with the TRIPS Agreement, valid
excuses for failure to use a trademark include reasons of force majeure or an Act of God and it isconsidered that use of a trademark by licensees or third parties under the owner’s control constitutes
use thereof.  The only change in the new Decision is in the name of the action in the Spanish text:
instead of " anulación " it refers to " cancelación ".
Article 165 provides the following:"The competent national office shall, at the request of an interested party, cancel a trademark
registration after an uninterrupted period of non-use in any Member Country, without valid
reasons, by the owner, a licensee, or another person authorized by the owner, of at least three
years immediately before the start of the cancellation proceeding.  Cancellation of a
registration for non-use of trademark rights may also be requested as a defence in an
opposition proceeding lodged on the basis of the unused trademark.
Without prejudice to the stipulation of the previous paragraph, no cancellation proceeding
shall be initiated until three years after the da te of notification of the final resolution within
the administrative registration procedures relating to the … (…)
Registration may not be cancelled where the owner of the trademark is able to show that non-
use is due to force majeure or an Act of God, among other things."
Regarding use, Article 166 of Decision 486 states that:
"A trademark shall also be considered in use where the goods or services distinguished by it
have been placed in circulation or are available on the market under that trademark, in the
form and amounts that are normal, due account being taken of the nature of the goods or
services and the methods used for their marketing.
A trademark shall be considered in use if it distinguishes only goods that are intended for
exportation from any of the Member Countries, as stipulated in the previous paragraph.
Use of a trademark in a form different from that in which it was registered only with respect
to details or features that do not alter its distinctive character shall not constitute grounds for
cancellation of registration for non-use, or lessen the protection afforded to the trademark."
7. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
Decision 486 allows the indefinite renewal of trademark registrations, establishing the
following in Article 152:
"Registration of a trademark shall be for a term of ten years counted from the grant date and
may be renewed for successive ten-year periods."
8. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
As explained in the reply to question 6, Colombia does not require that a trademark be used
before it can be registered.  Use is not a condition either for renewal of the respective trademark
because proof of use is not one of the requirements for renewal.  As mentioned, however, the ownerIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 17
of a trademark registration must use it in the way specified in Article 166 otherwise his right may be
cancelled at the request of any interested party if there is no proof of use within the three years
preceding the action for cancellation.
D. GEOGRAPHICAL INDICATIONS
9. Please describe the legal means available to prevent illegal use of the geographical
indications covered by the definiti on of Article 129 of Decision 344.
Title XII of Decision 486 covers geographical indications subdivided into two categories:
appellations of origin and indications of origin.  Article 201 defines an appellation of origin as "a
geographical indication consisting of the name of a particular country, region, or locality, or of a name
which, without being that of a particular country, region, or locality, refers to a specific geographicalarea whose name is used to identify a product originating therein, the qualities, reputation, or
characteristics of which are exclusively or essentially attributable to the geographical environment in
which it is produced, including both natural and human factors".  Article 221 defines an indication of
origin as "a name, expression, image, or sign that indicates or evokes a particular country, region,
locality or place".
As can be seen from the foregoing, appellations of origin are fully assimilated to the
geographical indications covered by Article 22 of the TRIPS Agreement and are thus properly
protected by Community legislation.
Concerning the legal measures available to prevent the unlawful use of appellations of origin,
Article 214 of Decision 486 provides that "Use by unauthorized persons of appellations of origin,
including cases where such use is accompanied by indications of gender, type, imitation and other
similar indications, in such manner as is likely to cause confusion among consumers, shall be
considered an infringement of that intellectual property right and as such sanctionable bypunishment", a provision which is in harmony with Article 22.1 of the TRIPS Agreement, and
Articles 258
4 and 2595 of Title XV of the Decision deal with action for infringement of rights,
precautionary measures, measures at the border and criminal procedures.
In addition, Colombia’s domestic legislation provides the following legal mechanisms for the
protection of appellations of origin:
Action for unfair competition
Article 20 of  Law No. 256 of 1996 regulates action that may be initiated (before the
competent courts6 or the Superintendencia de Industria y Comercio  (Supervisory Authority for
                                                     
4 "Article 258. – Any act carried out in respect of industrial property in the course of trade that is
contrary to honest commercial prac tices shall be considered unfair."
5 "Article 259. – The following, among others, constitute industrial property-linked unfair trade
practices:
(a) any act which, by any means whatsoever, is capable of causing confusion with respect to
the business, goods, or industrial activity of a competitor;
(b) false affirmations made in the course of  trade that are capable of discrediting a
competitor’s business, goods, or industrial or commercial activity;  or
(c) indications or affirmations whose use in the course of trade may mislead the public with
regard to the nature, method of manufacture, characteristics, usefulness, or quantity of the
goods in question."
6 Article 17 of the Code of Civil Procedure provides that expert circuit judges dealing with civil matters
are competent to hear proceedings co ncerning "patents, industrial designs, trademarks, trade signs and names
and other industrial property matters" at the first level if they are not dealt with by the administrative authoritiesIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 18
Industry and Trade), as provided in Articles 143 and 144 of  Law No. 446 of 1998) if there has been
unfair competition.  The action may be of two type s;  firstly, upholding the complaint and punishing
the offence, seeking a legal ruling that the acts carried out are unlawful and a subsequent   order that
the infringer cease the infringement and compensa te for the damages caused, and secondly preventive
action or prohibition requesting a judge to prevent th e commission of an unfair trade act that has not
yet taken place or to prohibit it even though it has not yet caused any damage.
In addition, when lodging a complaint for unfair competition or prior to this, the owner of the
industrial property rights may request the competent judge or the Supervisory Authority for Industry
and Trade to order that precautionary measures7 be taken immediately (they may be ordered within
24 hours following the lodging of the complaint) if there is a serious and imminent danger. Withoutprejudice to the aforementioned precautionary measures to be taken as a priority, precautionary
measures may be requested following the normal procedure in order to obtain the provisional
cessation of the act of unfair competition inter alia .
The acts specified in the following Articles of the Law may constitute grounds for such
action:
"Article 10. Acts liable to cause confusion.  In accordance with paragraph (3).1 of
Article 10 bis of the Paris Convention, approved under  Law No. 178 of 1994, all acts whose
purpose or effect is to create confusion with the activities, commercial services orestablishment of a competitor shall be considered unfair competition.
Article 11.  Acts liable to mislead. In accordance with paragraph (3).3 of Article 10 bis of the
Paris Convention, approved under  Law No. 178 of 1994, all acts whose purpose or effect is
to mislead the public regarding the activities, commercial services or establishment of acompetitor shall be considered unfair competition.
The use or dissemination of incorrect or false indications or affirmations, the omission of the
true indications or affirmations and any other type of practice which, because of the
circumstances in which they take place, are liable to mislead persons to whom they are
directed or whom they reach as to the activities, commercial services or establishment of a
competitor, or as to the nature, manufacturin g methods, characteristics, suitability for the
purpose or quantity of the goods shall be considered unfair competition.
Article 12.  Acts liable to discredit. In accordance with paragraph (3).2 of Article 10 bis of the
Paris Convention, approved under  Law No. 178 of 1994, the use or dissemination of
incorrect or false indications or affirmations, the omission of true indications or affirmationsand any other type of practice whose object or effect is to discredit the activity, services,
establishment or commercial relations of a competitor because they are not accurate, true or
relevant, shall be considered unfair competition.
Article 15.  Exploitation of a competitor’s reputation.  The utilization for one’s own benefit or
for the benefit of other parties of the advantages of the industrial, commercial or professional
reputation acquired by another person in the market shall be considered unfair competition.
Without prejudice to the provisions in the Crim inal Code and in international agreements, the
unauthorized use of another person’s distinctive sign or false or misleading appellations of
                                                                                                                                                                    
or the administrative litigation courts, and the precautionary measures specified in Articles 678, 681, 682 and
690 of the Code of Civil Procedure may be requested in order to prevent the infringement of rights fromcontinuing.
7 Article 31, Law No. 256 of 1996.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 19
origin shall be considered unfair competition even where the true origin of the goods is
indicated or expressions such as ‘model’, ‘system’, ‘type’, ‘class’, ‘kind’, ‘style’, ‘imitation’
and similar expressions are used."
Proceedings for industrial-property-related reasons other than unfair competition
According to Article 17 of the Code of Civil Procedure, expert circuit judges dealing with
civil matters8 are competent to hear proceedings concerning "patents, industrial designs, trademarks,
trade signs and names and other industrial property matters" at the first level if they are not dealt with
by the administrative authorities or the administrative litigation courts and do not concern acts of
unfair competition, which are covered by special regulations under Law No. 256 of 1996.
10. Please explain whether or not your trademark registration authority refuses a
trademark application if it contains a geographical indication.
The Supervisory Authority for Industry and Trade, which is the authority competent for
trademark registration in Colombia, is obliged to refuse the registration of trademarks which containan appellation of origin, pursuant to Article 135 of Decision 486, which provides the following:
"Signs may not be registered as trademarks when they:(…)(j) reproduce, imitate, or contain a protected indication of origin that is liable to create
confusion or a mistaken association with the indication in relation to the goods
themselves or different goods, or that involve taking unfair advantage of the well-
known character of that appellation among the public;
(k) contain a protected appellation of origin for wines and spirits;".
Subparagraph (d) of Article 202 of this Decision also provides that:"Those appellations of origin may not be declared such that:
(…)
(d) are liable to mislead the public as to the geographical source, nature, means of
manufacture, or quality, reputation, or other characteristics of the products in
question."
11. Please describe how additional protection is granted by your legislation to wines and
spirits.  Please mention other types of products, if any, covered by this additional protection.
In accordance with Article 23.1 of the TRIPS Agreement, Article 215 of Decision 486 gives
special protection to appellations of origin for wines and spirits, indicating that "Member Countriesshall prevent use of a geographical indication identifying wines or spirits for goods of this kind not
originating in the place indicated by the appellation of origin in question, even where the true origin
                                                     
8 It should be noted that the relevant authority has not appointed specialized circuit judges dealing with
civil matters, therefore, the competence given to them is exercised by ordinary circuit judges dealing with civil
matters (Supreme Court of Justice, Civil Annulment, Order of 25 June 1992.  Reporting judge: Eduardo GarcíaSarmiento).IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 20
of the goods is indicated or the appellation of origin is used in translation or accompanied by
expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’, or the like (…)."
Likewise, pursuant to Article 23.2 of th e TRIPS Agreement, Article 135 of the
aforementioned Decision provides that:
"Signs may not be registered as trademarks when they:(…)(k) contain a protected appellation of origin for wines and spirits;".
Decision 486 does not give additional protection to appellations of origin other than those for
wines and spirits, but this does not prevent appellations from obtaining the protection afforded by the
rules inasmuch as Article 201 of Decision 486 covers all appellations of origin irrespective of the
product to which they refer, as can be seen from the following text:  "An appellation of origin shall beunderstood to be a geographical indication consisting of the name of a particular country, region, or
locality, or of a name which, without being that of a particular country, region, or locality, refers to a
specific geographical area, which name is used to identify a product originating therein, the qualities,
reputation, or characteristics of which are exclusively or essentially attributable to the geographical
environment in which it is produced, including both natural and human factors."
12. Please give examples, if any, of indications that have been considered as common or
generic pursuant to Article 132(c) of Decision 344.
No appellation of origin has yet been refused protection because it is common or generic,
pursuant to Article 132(c)
9 of Decision 344.
E. INDUSTRIAL DESIGNS
13. Please clarify if Article 58 of Decision 344 of 1993 (document IP/N/1/COL/I/1) uses the
criteria of an independent creation to provide the protection.
Yes, an industrial design is another form of protection for industrial property that protects the
particular appearance of a product as a creation through registration, a different form of protection to
that for patents.
14. Please state precisely if and under what conditions the initial protection of eight years
can be extended (Article 65 of Decision 344 of 1993).
Article 128 of Decision 486 modifies the term of  protection for industrial designs, extending
it to ten years, bearing in mind that this is the minimum term of protection provided in the TRIPS
Agreement and that Decision 344 provided for eight years of protection.  The Article in question
states the following:
"Registration of an industrial design shall be for a term of ten years, counted from the filing of
the application in the Member Country."
                                                     
9 This provision corresponds to Article 202(b) of Decision 486, which states the following:  "Those
appellations of origin may not be declared such that : …(b) are common generic terms that distinguish the
product concerned, that is, terms considered as such both by persons with knowledge of the area concerned and
by the general public;".IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 21
Without prejudice to the foregoing, the First Transitional Provision of Decision 486 states
that:
"Any intellectual property right validly conferred under Andean Community legislation
existing prior to the entry into force of this Decision shall be governed by the provisions that
were applicable on the grant date, except in regard to the terms of validity, in which case
preexisting intellectual property rights shall be adjusted to the provisions stipulated in this
Decision."
This means that the registration of industrial designs in effect on the date of entry into force of
Decision 486 (1 December 2000) for which a term of protection of eight years was granted underDecision 344 and Decision 313
10 of the Cartagena Agreement will see their term of protection
increased by two years, making a total of 10 years, as required by the TRIPS Agreement.
15. Please state precisely if the owner of a protected industrial design has the right to
prevent third parties from making, selling or importing articles bearing or embodying a designwhich is substantially a copy (for clarification of Article 69 of Decision 344 of 1993).
In conformity with Article 26.1 of the TRIPS Agreement, Article 129 of Decision 486
provides that:
"Registration of an industrial design shall conf er on the owner thereof the right to prevent
third parties from making use of the design concerned.  By virtue of that prohibition, the
owner of the registration shall be entitled to proceed against any third party who, without his
consent, manufactures, imports, offers for sale, markets, or makes commercial use of products
that incorporate or reproduce the industrial design.
Registration shall likewise confer the right to proceed against any person who produces or
markets an article whose design only presents minor differences with respect to the protected
design or whose appearance is the same as the protected design."
As can be seen from the above Article, the owner of a registered industrial design may
prevent the manufacture, sale or import of products that reproduce or incorporate a design which is
substantially a copy of his protected industrial design.
16. Please give examples, if any, of any exceptions to the protection of industrial designs
which your legislation foresees.
Article 115 of Decision 486, in accordance with the provisions in Article 25.1 of the TRIPS
Agreement, indicates that:
"Industrial designs that are new shall be registerable.(…)
An industrial design shall not be new by virtue of the mere fact that it embodies secondary
differences in relation to earlier creations, or that it refers to a category of products different
from that to which the said creations belong."
                                                     
10 Article 64.  Decision 313 of the Commission of the Cartagena Agreement:  "Registration of an
industrial design shall be for a term of eight years, counted from the filing of the application."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 22
In addition, Article 116 of the Decision, also in conformity with Articles 27.2 and 25.1 of the
TRIPS Agreement, provides that industrial design s may not be registered in any of the following
cases:
"(a)  Industrial designs whose commercial exploitation within the territory of the Member
Country where registration is being applied for must necessarily be prevented to
protect morality or public order.  For this purpose, commercial exploitation of an
industrial design shall not be considered contrary to morality or public order merely
because the exploitation is prohibited or regulated by a legal or administrative
provision;
(b) industrial designs whose appearance was dictated essentially by technical or
functional considerations and that fail to incorporate any arbitrary contribution by the
designer;  and
(c) industrial designs that consist only of a form the exact reproduction of which proved
necessary in order to permit the mechanical assembly or connection of the product
incorporating the design with another product of which it is a part.  This restriction
shall not apply where the design assumes a particular form to allow for the assembly
or multiple connection of the products or their connection within a modular system."
F. PATENTS
17. Please describe how micro-organisms, non-essentially biological processes,
microbiological processes and plant varieties are pr otected in your legislation.  Please explain in
this respect the relevant sections of your legislation.  In particular, Article 6(b) of Decision 344
of 1993 of the Commission of the Cartagena Agreement on the Common Industrial PropertyRegime (hereinafter "Decision 344") provides that material that exists in nature or a replica of
such material cannot be considered as an invention for the purpose of patenting.  Does this
mean that micro-organisms are excluded from patentability?
Bearing in mind that materials found in nature
11 are mere discoveries that do not involve
human intelligence and creativity for their development and creation and that Article 27 of the TRIPS
Agreement provides that "any inventions, whether products or processes … provided that they are
new, involve an inventive step and are capable of industrial application" (emphasis added) may be
patented, it can be seen that the non-patentability of these substances is consistent with the TRIPS
Agreement inasmuch as they do not meet the requirements of novelty and an inventive step and,
above all, they constitute mere discoveries, which are not defined as inventions in the TRIPS
Agreement and are not eligible for protection under the patent system.
Plant varieties12 are protected through breeders’ certificates, which is in conformity with
Article 27.3(b) of the TRIPS Agreement.
                                                     
11 Article 15, Decision 486 of the Commission of the Cartagena Agreement:
"The following shall not be considered inventions:
(a) discoveries, scientific theories, and mathematical methods;
(b) any living thing, either complete or partial, as found in nature, natural biological
processes and biological material, as existing in nature or able to be separated,
including the genome or germplasm of any living thing; (…)"
12 Article 4, Decision 345 of the Commission of the Cartagena Agreement:  "The Member Countries
shall grant breeders’ certificates to persons who have creat ed plant varieties, in so far as the varieties are new,
uniform, distinct and stable, and if they have been given a denomination that constitutes their genericdesignation."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 23
Micro-organisms that are the result of human creativity, in other words they are the result of
modifications and involve novelty and an inventive step, can be patented.
18. Article 7(e) of Decision 344 excludes from patentability inventions related to
pharmaceutical products being on the WHO’s list of essential medicines.  Please indicate on the
basis of which provision of the TRIPS Agreement could this exemption be justified and how it
would be in conformity with Article 27.1 of the TRIPS Agreement, which states that patents
shall be available without discrimination as to the field of technology.
The provision in Article 7(e) of Decision 344 does not appear in Decision 486 of the
Commission of the Cartagena Agreement.
19. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
Article 52 of Decision 486 reads as follows:
"A patent shall confer on its owner the right to  prevent third parties not having the owner’s
consent from the acts of:
(a) Where the subject matter of a patent is a product:
(i) making the product;
(ii) offering for sale, selling, or using the product; or importing it for these
purposes;  and
(b) where the subject matter of a patent is a process:
(i) using the process;  or
(ii) carrying out any of the acts that are specified under paragraph (a) above with
respect to a product obtained directly by that process." (emphasis added)
The above shows that protection under a process patent covers both the process and the
products obtained directly therefrom.
20. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prior informed consent to its use).  If suchadditional conditions exist, please point out the relevant provisions and describe the additional
conditions.
Article 26 of Decision 486 states that:
"Applications for patents shall be filed with the competent national office and shall contain:
(…)(h) a copy of the contract for access, if the products or processes for which a patent
application is being filed were obtained or developed from genetic resources or by-products originating in one of the Member Countries (…)"IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 24
This is in accordance with the Convention on Biological Diversity, to which Colombia is
party, whose Preamble states that "… States have sovereign rights over their own biological
resources".   Article 15 of the Convention reads as follows:  "Recognizing the sovereign rights of
States over their natural resources, the authority to determine access to genetic resources rests with thenational governments and is subject to national legislation" and "Access, where granted, shall be on
mutually agreed terms …" and "Access to genetic res ources shall be subject to prior informed consent
of the Contracting Party providing such resources, unless otherwise determined by that party".  The
Second and Third Complementary Provisions of Decision 391 provide that:
"SECOND. – The Member Countries shall not acknowledge rights, including intellectual
property rights, over genetic resources, by-products or synthesized products and associated
intangible components that were obtained or developed through an access activity that does
not comply with the provisions of this Decision.
Furthermore, the Member Country affected may request nullification and bring such actions
as are appropriate in countries that have conferred rights or granted protective titledocuments.
THIRD. – The Competent National Intellectual Property Offices shall require the applicant to
give the registration number of the access contract and supply a copy of it as a prerequisite for
granting the respective right when they are certain or there are reasonable indications that theproducts or processes whose protection is being requested have been obtained or developed
on the basis of genetic resources or their by-products which originated in one of the Member
Countries (…)"
21. Please indicate where your patent legislation provides for limited exceptions to the
exclusive rights conferred by a patent.  If affirmative, please make a reference to relevant
legislation.
Yes, Article 55 of Decision 486, in accordance with Article 30 of the TRIPS Agreement,
determines that:
"Without prejudice to the provisions stipulated in this Decision with respect to patent nullity,
the rights conferred by a patent may not be asserted against a third party that, in good faithand before the priority date or the filing date of the application on which the patent was
granted, was already using or exploiting the invention or had already made effective and
serious preparations for such use or exploitation.
In such cases, the said third party shall have th e right to start or continue using or exploiting
the invention, but that right may only be assigned or transferred together with the business or
company in which that use or exploitation is taking place."
22. Please clarify what is to be understood by "to exploit a patented invention" under
Article 35 of Decision 344.  Please clarify to what extent this refers to all the exploitationmethods of a patent referred to in Article 28.1 of the TRIPS Agreement (making, using, offering
for sale, selling or importing).
Article 52 of Decision 486, in full compliance with Article 28.1 of the TRIPS Agreement,
provides that:
"A patent shall confer on its owner the right to  prevent third parties not having the owner’s
consent from the acts of:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 25
(a) Where the subject matter of a patent is a product:
(i) making the product;
(ii) offering for sale, selling or using the product;  or importing it for these
purposes;  and
(b) where the subject matter of a patent is a process:
(i) using the process;  or
(ii) carrying out any of the acts that are specified under paragraph (a) above with
respect to a product obtained directly by that process."
23. Article 42 of Decision 344 allows the granting of compulsory licences if, after a period of
three years after the grant of the patent or four  years after the patent application, the patent
has not been "exploited" within the meaning of  Articles 37 and 38 of Decision 344 in the
Cartagena Agreement Member State where the patent application was filed.  Please clarify
whether this entails that a mere failure to pr oduce the patented product within the country
where the application was filed would provide sufficient grounds for issuing a compulsory
licence, even if the product in question is im ported in sufficient quantities to meet market
demand.
With regard to patents for products, if the product that is the subject of the patent is imported
on the terms indicated in Article 60 of Decision 48613, this would constitute exploitation in conformity
with the provisions of the Andean Decision and ther efore no compulsory licence for failure to exploit
the patent would be granted.
24. Please explain to what extent Article 42 of Decision 344 ensures that:  (1) a proposed
user has made efforts to obtain authorization fr om the right holder on reasonable commercial
terms and conditions;  and (2) that such efforts have not been successful within a reasonable
period of time.  In this context, how and on what basis do you define "reasonable period of
time"?
The reasonable terms referred to in Article 61 of Decision 48614 must be duly substantiated by
the interested party, who must furnish evidence proving this fact.  For example, communications,
                                                     
13 Article 60, Decision 486 of the Commission of the Cartagena Agreement:  "For the purposes of this
Chapter, exploitation shall be understood to mean the industrial manufacture of the patented product or the fulluse of the patented process, including the distribution and marketing of the results thereof on a scale sufficient to
satisfy the demands of the market.  Exploitation shall also be understood to mean the importation of the patentedproduct, including its distribution and marketing, where this is done on a scale sufficient to satisfy the demands
of the market (…)"
14 Article 61, Decision 486 of the Commission of the Cartagena Agreement:  "At the expiry of a period
of three years following a patent grant or of four years following the application for a patent, whichever islonger, the competent national office shall grant a compulsory licence mainly for the industrial manufacture ofthe product covered by the patent or for full use of the patented process, at the request of any interested party,but only if, at the time of the request, the patent had not been exploited in the manner specified in Articles 59
and 60 in the Member Country in which the licence is sought or if the exploitation of the invention had been
suspended for more than one year.
Compulsory licences shall not be granted if patent owners are able to give valid reasons for their failure
to act, which may be reasons of force majeure or an Act of God, in accordance with the domestic provisions ineffect in each Member Country.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 26
letters of intent, proposals, etc., which will be examined to see whether in fact the conditions offered
are consistent with reasonable terms and conditions taking into account the relevant factors (market,
type of invention, royalties proposed, social implications, etc.).
As regards the definition of the term "reasonable period of time", which is also mentioned in
Article 61, because each case is different the provision does not fix a particular time.  In this respect,
possible minimum periods of time for negotiations between the parties are under consideration in
order to fix a period that is reasonable and fair.
25. Article 42 of Decision 344 provides that the compulsory licensee shall pay an adequate
remuneration to the patent holder.  Does this im ply that the economic value of the authorization
should be taken into account?
Yes, because the voluntary granting of a licence may involve disagreement regarding the
amount of the royalties to be paid for the licence, so an economic valuation by the authority would fix
a middle point or fair and just criteria for payment to the owner, taking into account factors such as
the economic value of the invention, the costs incurred by the owner, market conditions, etc.
26. Please indicate where your legislation prov ides that any decision relating to the
authorization of a compulsory licence shall be subject to judicial or other independent review by
a distinct higher authority, as prescribed  by Article 31(j) of the TRIPS Agreement.
Because compulsory licences are granted by means of administrative acts, they are subject to
judicial review by the Council of State and the act in question may be contested through proceedings
for annulment and the restoration of rights in accordance with Article 85 of the Code of
Administrative Litigation as follows:
"Any person whose right protected by a legal provision has been infringed may request that
the administrative act be declared null and void and that his rights be restored, and may also
request that the injury be compensated (…)"
27. Please indicate whether and where your legislation provides that the scope and duration
of a compulsory licence must be limited to the purpose for which it was authorized.
Article 61 of Decision 486 provides the following:
"At the expiry of a period of three years follow ing a patent grant or of four years following
the application for a patent, whichever is longer, the competent national office shall grant a
compulsory licence mainly for the industrial manufacture of the product covered by the patent
or for full use of the patented process, at the request of any interested party, but only if, at the
time of the request, the patent had not been exploited in the manner specified in Articles 59
and 60 in the Member Country in which the licence is sought or if the exploitation of the
invention had been suspended for more than one year." (emphasis added)
In addition, Article 65 of the Decision states that:
"Following the declaration by a Member Country of the existence of public interest, an
emergency or national security considerations and only for as long as those considerations
                                                                                                                                                                    
A compulsory licence shall be granted only if, prior to applying for it, the proposed user has made
efforts to obtain a contractual licence from the patent holder on reasonable commercial terms and conditions andthat such efforts were not successful within a reasonable period of time."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 27
exist, the patent may be subject to compulsory  licensing at any time.  In that case, the
competent national office shall grant the licences requested (…)
The competent national office shall specify the scope or extent of the compulsory licence and,
in particular, the term for which it is granted, the subject matter of the licence, and the amount
of remuneration and the conditions for its payment (…)" (emphasis added)The above shows that the administrative act granting a compulsory licence must limit its
scope and duration in accordance with the grounds specified in the act, which must correspond to the
specific reasons that justify such scope and duration, based on social factors, the general interest and
other relevant factors.
28. Please indicate whether and where your legisl ation provides that, in the case of semi-
conductor technology, a compulsory licence shall only be granted for public non-commercial use
or to remedy a practice determined after judicial or administrative process to be anti-
competitive.
Article 68 of Decision 486 provides that:
"... compulsory licences shall be subject to the following:(…)(e) in the case of patents protecting semi-conductor technology, a compulsory licence
shall be authorized only for public non-commercial use or to remedy a practice
declared by the competent national authority to be anti-competitive in accordance
with Articles 65 and 66;".
This shows that the provision fully complies with Article 31(c) of the TRIPS Agreement.
29. Please indicate which provision of your legislation provides an opportunity for judicial
review of any decision to revoke or forfeit a patent.
In accordance with Article 32 of the TRIPS Agreement, the Code of Administrative Litigation
allows the legal validity of the act by which patent rights have been revoked or limited to be contestedthrough proceedings for annulment and restoration of rights in accordance with Article 85 of the Code
of Administrative Litigation as follows:
"Any person whose right protected by a legal provision has been infringed may request that
the administrative act be declared null and void and that his rights be restored, and may alsorequest that the injury be compensated (…)"
30. Please mention if your legislation grants additional protection for innovations after the
20 years of patent protection have lapsed.
Colombia’s legislation does not grant any further protection for inventions whose patent
rights have expired.
31. Please explain how your legislation provide s for the enhanced patent protection of
patents or patent applications pending on 1 January 1995.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 28
Patents and patent applications pending in 1995 do not require any special protection because,
as of the entry into force of Decision 344 (in force since 1 January 1994), before the TRIPS
Agreement came into effect, the term of protection for patents was already 20 years.
G. LAY-OUT DESIGNS (TOPOGRAPHIES ) OF THE INTEGRATED CIRCUITS
32. Please describe how your legislation protects topographies.
Decision 486 includes a chapter regulating layout-designs of integrated circuits.  These are
protected as a new industrial property right in the same way as the protection provided under the
TRIPS Agreement, determining as a requirement for registration that they must be original15, in other
words, they are the result of their creator’s inte llectual effort and are not in common use in the
integrated circuit industry.
Decision 486 lays down the requirements for applications to register layout-designs of
integrated circuits, giving the interested parties the opportunity to lodge objections.16   It is specified
that the term of the exclusive right in a layout-design shall be 10 years from the earliest of the
following dates:  (a) the last day of the year in which the layout-design was first commerciallyexploited anywhere in the world;  or (b) the filing date of an application for registration with the
competent national office in the Member Country concerned.  Without prejudice to the foregoing, it is
provided that protection of a layout-design shall in any event lapse at the expiry of a period of 15
years as of the last day of the year in which it was created
17, which is in accordance with Article 38 of
the TRIPS Agreement.
Decision 486 also regulates the rights conferred by registration of a layout-design, including
the right to prevent third parties from reproducing all or part of the design, marketing, importing,
offering for sale, selling or otherwise distributing the layout-design or the integrated circuits
incorporating it, or marketing, importing, offering for sale, selling or otherwise distributing articles
incorporating the protected layout-design.18 Lastly, with regard to compulsory licences for layout-
designs, the competent national authority may grant licences at the request of a party or ex officio
provided that this is justified by lack of exploitation, public interest, national emergency, public
health, national security or to remedy anti-competitive practices, and the conditions laid down for
compulsory licences for patents indicated in the reply to question 28 apply.
33. Please explain what protection your national legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies
including integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
In relation to the third part of the question above, Article 99 of Decision 486 provides the
following:
                                                     
15 Article 87, Decision 486 of the Commission of the Cartagena Agreement:  "A layout-design shall be
protected if it is an original design.
A layout-design shall be considered original when it is the result of its creator’s intellectual efforts and
is not in common use in the integrated circuit industry.
Where composed of two or more elements in common use in the integrated circuit industry, a layout-
design shall be considered original only if the co mbination of these elements, as a whole, meets this
requirement."
16 Article 89, Decision 486 of the Commission of the Cartagena Agreement.
17 Article 98, Decision 486 of the Commission of the Cartagena Agreement.
18 Article 99, Decision 486 of the Commission of the Cartagena Agreement.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 29
"The protection shall be applied irrespective of whether the integrated circuit in which the
protected layout-design has been incorporated has been manufactured and irrespective of
whether the layout-design has been incorporated into an integrated circuit.
Registration of a layout-design of an integrated circuit confers on its holder the right to
prevent third persons from performing any of the following acts:
(a) Reproducing, through incorporation into an integrated circuit or in any other way all
or part of the protected layout-design that complies with the requirements for
originality stipulated in Article 87;
(b) marketing, importing, offering for sale, selling or otherwise distributing a protected
layout-design or an integrated circuit in which a protected layout-design is
incorporated;  or
(c) marketing, importing, offering for sale, sell ing or otherwise distributing an article
incorporating such a protected integrated circuit, only in so far as it continues to
contain an unlawfully reproduced layout-design.
Protection conferred by registration shall cover only the layout-design itself and shall not
extend to any idea, process, system, technique or data encoded or incorporated into thelayout-design."
In this connection, if any of the cases specified in the law occur, the owner of the topography
has the right to bring the relevant action before the judicial authorities or competent administrative
authorities, either for infringement of his rights or for breach of the rules on unfair competition, asprovided in Decision 486 and Colombia’s domestic legislation.
34. Please explain how your legislation provide s for the derogation from Article 36, as
specified in Article 37 of the TRIPS Agreement, where a person has no knowledge or reasonable
grounds to know when acquiring an integrated circuit or an article incorporating such an
integrated circuit that it contains an unlawful topography.
Article 104 of Decision 486 resolves this problem as follows:
"Performance of any of the acts referred to in Article 99 in respect of an integrated circuit
unlawfully incorporating a layout-design or any article incorporating such an integrated
circuit shall not be considered an infringement of rights to a registered design where the
person performing or ordering such acts did not know and had no reasonable grounds to know
that the integrated circuit had been reproduced unlawfully. After that person has been
informed that the layout-design was unlawfully reproduced, that person may continue to
perform such acts with respect to the stock in hand or already ordered, but at the request of
the owner of the registration he shall be liable to pay compensation equivalent to a reasonable
royalty based on that payable under a contractual licence." (emphasis added)
35. Please state the term of protection granted by your legislation to topographies.
As mentioned in the second paragraph of the reply to question 32, Article 98 of Decision 486,
in accordance with Article 38 of the TRIPS Agreemen t, provides that the term of the exclusive right
in a layout-design shall be 10 years as of the earliest of the following dates:  (a) the last day of theyear in which the layout-design was first commercially exploited anywhere in the world;  or (b) the
date of filing of the application for registration wi th the competent national office in the respective
country.  Without prejudice to the foregoing, it is provided that the protection of a layout-design shallIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 30
in any event lapse at the expiry of a period of 15 years as of the last day of the year in which it was
created.
H. PROTECTION OF UNDISCLOSED INFORMATION
36. Please explain how and to what extent your legislation provides protection for
undisclosed information within the meaning of Article 39.2 of the TRIPS Agreement.
In the same terms as the provisions of the TRIPS Agreement, Article 260 of Decision 486
states that:
"A business secret shall be considered to be  any undisclosed information within the lawful
control of a natural person or legal entity that may be used for a production, industrial orcommercial activity and that is capable of being transmitted to a third party as long as that
information:
(a) Is secret in the sense that it is not, as a body or in the precise configuration and
assembly of its components, generally known among or readily accessible to personswithin the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret;  and
(c) has been the subject of reasonable steps by the person lawfully in control of the
information to keep it secret.
The information constituting a business secret may be related to the nature, characteristics or
purpose of the products, production methods or processes or the means or forms of
distribution or marketing of goods or rendering of services."
In conformity with the above, Article 262 protects undisclosed information against unfair
competition as follows:
"Persons shall have the possibility of preventing a business secret lawfully within their
control from being disclosed to, acquired by or used by third parties in a manner contrary to
fair trade practices.  Performance of any of the following acts in respect of a business secretshall be considered unfair competition.
(a) Using, without the authorization of the person lawfully in control of that information,
a business secret to which the third party had access under a confidentiality obligation
resulting from a contractual or labour trade practice;
(b) communicating or disclosing, without the consent of the person lawfully in control of
that information, the business secret referred to in subsection (a) with the intent of
obtaining advantages for oneself or another party or of causing injury to the person in
control of that information;
(c) acquiring a business secret by means that are unlawful or contrary to fair trade
practices;
(d) using, communicating or disclosing a business secret acquired in the way described in
subsection (c);IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 31
(e) using a business secret obtained from another person while knowing or negligently
failing to know that the party which communicated the secret had acquired it by use
of the means cited under subsection (c) or did not have consent to communicate it
from the person lawfully in control of that information;
(f) communicating or disclosing a business secret obtained in the way described under
subsection (e) for the benefit of oneself or a third party or to injure the person
lawfully in control of that business secret.
A business secret shall be considered to have been acquired by means contrary to fair trade
practices where such acquisition is the result of industrial espionage, breach of contract orother obligations, breach of trust, breach of a duty of secrecy or inducement to breach."
Secrets are also protected under criminal legislation as follows:Article 238 of the Criminal Code in effect establishes terms of imprisonment and fines for any
person who uses, discloses or reveals a discovery, scientific invention, industrial process or
application known to him by reason of his functions, position or profession and which should remain
confidential.
Law No. 599 of 2000, the new Criminal Code which will enter into force on 24 July 2000,
states in Article 308 that "any person who uses, reveals or discloses a discovery, scientific invention,
industrial or commercial process or application known to him by reason of his functions, position or
profession and which should remain confidential shall be liable to a term of imprisonment of two (2)
to five (5) years and a fine of twenty (20) to two thousand (2,000) minimum prevailing legal monthly
wages".  The same penalty applies to any person who "unlawfully obtains knowledge of, copies or
obtains a secret related to a discovery, scientific invention, industrial or commercial process or
application", in which case the penalty shall be three (3) to seven (7) years of imprisonment and a fine
of one hundred (100) to three thousand (3,000) mini mum prevailing legal monthly wages if he or a
third party obtains a benefit therefrom.
37. Please explain how your legislation defines "undisclosed information".
See the first part of the reply to the previous question.
38. Please indicate where and how your legislation guarantees protection of data submitted
to obtain marketing approval for pharmaceutica l or agricultural chemicals utilizing a new
chemical entity in conformity with Article 39.3 of the TRIPS Agreement.
Article 260 of Decision 486 defines business secrets and Article 262 provides the following:
"Persons shall have the possibility of preventing a business secret lawfully within their control from
being disclosed to, acquired by or used by third parties in a manner contrary to fair trade practices."
Unfair competition consists inter alia  of "using, without the authorization of the person lawfully in
control of that information, a business secret to which the third party had access under a
confidentiality obligation resulting from a contractual or labour trade practice;".  This provision alsostates that a business secret shall be considered to have been acquired by means contrary to fair trade
practices where such acquisition is the result inter alia  of the breach of an obligation, breach of trust,
breach of a duty of secrecy or inducement to such breaches.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 32
From the standpoint of positive law, there are rules which define information that is not
confidential and is available to the public19. Article 61 of the Commercial Code also states that
business records and documents may not be examined by persons other than their owners or persons
authorized by the latter, unless the competent authority orders otherwise.
Article 7420 of the Political Constitution restricts access to documents deemed to be
confidential.  In implementation of this constitutional principle, Article 29 of the Code of
Administrative Litigation provides that a separate  section must be opened in files that contain
documents with confidential information.
The law also establishes systems to protect confidential information by prohibiting its
disclosure and providing mechanisms to repress any action that jeopardizes the right to keep such
information confidential.  Article 16 of  Law N o. 256 of 1992, for example, prohibits the "disclosure
or exploitation, without authorization of the owner, of industrial secrets or any other type of business
secret to which access has been lawfully given subject to an undertaking to maintain confidentiality;".
Pursuant to Article 38 of  Law No. 200 of 1995,  failure to fulfil one’s duty, abusing or exceedingrights or functions or committing prohibited acts on the part of public officials constitute breaches of
discipline that lead to the imposition of the corresponding penalties.
Lastly, as mentioned above, Decision 486 determines the acts deemed to be unfair trade
practices in respect of business secrets and Article 238 of the Criminal Code specifies that theunlawful disclosure of confidential information known to a person inter alia  by reason of his position
constitutes an offence punishable by a term of imprisonment and a fine.  The same provisions can be
found in Article 308
21 of the new Criminal Code.
I. ENFORCEMENT
39. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
(a) Decision 486 of the Commission of the Cartagena Agreement
Decision 486 of the Commission of the Cartagena Agreement provides for the following
actions to protect industrial property rights:
Claims
Article 237 of Decision 486 states that:
"Where patents or registration of industrial designs have been applied for or obtained by
persons with no right to those patents or registrations or to the detriment of other parties also
possessing that right, the parties affected may claim those rights from the competent national
                                                     
19 For example, books and files in the commercial register, pursuant to Article 26 of the Commercial
Code.
20 Article 74, Political Constitution:  "Any person shall have the right of access to public documents,
except in the cases specified in the law."
21 Violation of an industrial or business secret.  Any person who uses, reveals or discloses a discovery,
a scientific invention, an industrial or commercial pro cess or application, known to him by reason of his
functions, position or profession and which should remain confidential shall be liable to a term of imprisonment
of two (2) to five (5) years and a fine of twenty (20) to two thousand (2,000) minimum prevailing legal monthlywages.
The same penalty shall apply to any person who unlawfully obtains knowledge of, copies or obtains a
secret related to a discovery, scientific inventio n, industrial or commercial process or application.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 33
authority and request the transfer to them of the applications being processed or the rights
granted, or their recognition as co-applicants or co-owners of the rights.
Where trademark registrations have been applied for or obtained to the detriment of other
parties with the same rights, the parties affected may make claims to such rights with the
competent national authority by requesting their recognition as co-applicants or co-owners of
the rights in question.
Should the domestic legislation of the Member Country so permit, compensation for damages
may be requested in the same claim. (…)"
Action for infringement of rights
Article 238 of Decision 486 establishes that the owner of a right protected under the Decision
"may bring action before the competent national authority against any persons infringing their right"
or "performing acts that show that an infringement is likely to occur".
Action for compensation for damages
Article 239 of Decision 486 provides that the owner of a patent may take legal action for
damages "resulting from unauthorized use of the invention or utility model between the period whenit became public knowledge and the respective application was opened for consultation and the date
of granting the patent".
Unfair competition
Article 259 of Decision 486 provides an illustrative list of acts that constitute intellectual-
property-linked unfair trade practices, which can be used as grounds for initiating the corresponding
action.  These include:
- Any act capable of causing confusion, by any means whatsoever, with respect to the
business, goods or industrial or commercial activity of a competitor;
- false affirmations made in the course of trade that are capable of discrediting a
competitor’s business, goods or industrial or commercial activity;
- indications or affirmations whose use in the course of trade may mislead the public
with regard to the nature, method of manufacture, characteristics, usefulness orquantity of the goods in question.
(b) Domestic legislation
Domestic legislation allows the following action to protect industrial property rights:
Unfair competition
As the infringement of industrial property rights may involve acts that cause confusion22, are
misleading23 and/or exploit another person’s reputation24, which constitute unfair competition
                                                     
22 Article 10, Law No. 256 of 1996.
23 Article 11, Law No. 256 of 1996.
24 Article 15, Law No. 256 of 1996.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 34
pursuant to  Law No. 256 of 1996, they may be punished through the corresponding action provided
in the aforementioned Law.
Article 20 of  Law No. 256 of 1996 regulates action that may be initiated (before the
competent judges25 or the Supervisory Authority for Industry and Trade, as provided in Articles 143
and 144 of Law No. 446 of 1998) if there has been unfair competition.  The action may be of two
types:  upholding the complaint and punishing the offence, seeking a legal ruling that the acts carried
out are unlawful and, consequently, ordering the infringer to cease the infringement and compensate
for the damages caused and, preventive action or prohibition requesting a judge to prevent the
commission of an unfair trade act that has not yet taken place or to prohibit it even though it has not
yet caused any damage.
In addition, when lodging a complaint for unfair competition or prior to this, the owner of the
industrial property rights may request the competent judge or the Supervisory Authority for Industry
and Trade to order that precautionary measures26 be taken immediately (they may be ordered within
24 hours following the lodging of the complaint) if there is a serious and imminent danger.  Without
prejudice to the aforementioned precautionary measures to be taken as a priority, precautionary
measures may be requested following the normal procedure in order to obtain the provisional
cessation of the act of unfair competition inter alia .
Prohibited use of a mark, logo, trade name or commercial sign
Under the terms of Articles 607 and 609 of the Commercial Code, a party injured by the use
of a mark, logo, trade name or commercial sign ma y apply to circuit judges dealing with civil matters
to prevent such use and claim the corresponding damages in an action which, if successful, entails the
relevant prohibition of use and an order to pay damages.
Proceedings on other grounds of unfair competition relating to industrial property assets
Pursuant to Article 17 of the Code of Civil Procedure, specialized circuit judges dealing with
civil matters27 have the authority at the first instance to hear proceedings concerning "patents,
industrial designs, trademarks, trade signs and names and other industrial property matters" not
attributed to the administrative authorities or subject to administrative litigation jurisdiction and notconnected with any acts of unfair competition specially regulated by Law No. 256 of 1996.
Action for damages
Article 571 of the Commercial Code provides th at the owner or licensee of a patent, utility
model, industrial design, trademark, logo, trade name or sign may take action for damages resulting
from the unauthorized use of such industrial property assets without the need to request the
corresponding precautionary measures or in cases where such measures have been refused.
                                                     
25 Article 17 of the Code of Civil Procedure provides that expert circuit judges dealing with civil
matters are competent to hear proceed ings concerning "patents, industrial designs, trademarks, trade signs and
names and other industrial property matters" at the first level if they are not dealt with by the administrativeauthorities or administrative litigation courts, and the precautionary measures specified in Articles 678, 681, 682
and 690 of the Code of Civil Procedure may be requested in order to prevent the infringement of rights fromcontinuing.
26 Article 31, Law No.256 of 1996.
27 It should be noted that the relevant authority has not appointed specialized circuit judges dealing with
civil matters, therefore, the competence given to them is exercised by ordinary circuit judges dealing with civil
matters (Supreme Court of Justice, Civil Annulment, Order of 25 June 1992.  Reporting judge:  Eduardo GarcíaSarmiento).IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 35
Precautionary measures
Pursuant to Articles 568, 581 and 597 of the Commercial Code, the owner or licensee of a
patent, utility model, industrial design, trademark, logo, trade name or sign may request the competentjudge to take the necessary precautionary measures to protect their industrial property rights, provided
that the latter have been used without authorization or disregarded.
40. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.
When the administrative stage or the official formalities before the administrative authorities
have concluded, a party which disagrees with the final decision may turn to the administrativelitigation jurisdiction – Council of State – in order to seek a favourable ruling overturning the
Administration’s decision by means of the action for annulment provided in Decision 486 or the
annulment and restoration of rights provided in Article 85 of the Code of Administrative Litigation.
41. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensure
the protection of confidential information.
According to Article 283 of the Code of Civil Pr ocedure, a party that wishes to make use of
documents within the control of the other party must request their presentation within the time limit
allowed for submitting evidence.  Article 288 of the Code provides that, either ex officio or at therequest of a party, the presentation of some of the business books and papers relating to the subject
matter of the proceedings may be ordered
28.
Article 28529 of the Code of Civil Procedure provides  that, where a party ordered to produce
documents opposes the order, the court must evaluate the grounds for his opposition and, if these areunjustified, the facts which the party requesting the presentation of the documents seeks to prove shall
be taken as proven, unless admission of guilt is not allowed for such acts, in which case opposition
shall be considered evidence against the person opposing the presentation.  This Article also provides
that the same procedure shall be followed where a party has not lodged opposition but fails to produce
the documents, unless he provides justification for his failure to do so in due time and subsequently
presents the documents when ordered by the court.
With regard to information on the identity of third parties that have taken part in the
production and distribution of goods or services determined to be infringing goods and services and
on their distribution channels, there are no legal provisions allowing the judicial authorities to order
an infringer to provide information regarding the id entity of third parties involved in the production or
distribution of goods or services determined to be in infringement.  Without prejudice to theforegoing, through the submission of evidence and questioning of the parties in civil proceedings or
investigations in criminal proceedings, such information may be obtained with the necessary
collaboration.
It should be noted that, in criminal matters, reduced sentences are allowed for effective
collaboration with the judicial authorities, for exam ple, for successfully assisting in the investigation
to determine the perpetrators of offences or th ose participating therein, for helping to dissolve or
                                                     
28 In accordance with Article 65 of the Commercial Code.
29 In accordance with Article 67 of the Commercial Code, which provides the following:  "If a business
person does not submit the books and papers whose presentation has been ordered, conceals any of them orprevents their examination, the facts which the other party seeks to prove shall be considered proven ifadmission of guilt is allowed for such acts (…)"IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 36
weaken criminal organizations or in the arrest of one or more of their members, for collaborating in
the actual prevention of offences or in the diminution of offences already committed or in the course
of being committed, for denouncing the heads of criminal organizations, accompanied by effective
proof of their responsibility, and for identifying the financing sources of criminal organizations30.
Lastly, as regards the protection of confidential information, see the reply to question 38.
42. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
Article 245 of Decision 486 provides the following:
"Any party initiating or preparing to initiate  an action for infringement may request the
competent national authority to order immediate provisional measures for the purpose of
preventing an infringement from occurring, avoiding its consequences, obtaining or
preserving evidence, or ensuring the effectiveness of the action or compensation for damages.
Provisional measures may be requested before starting the action, together with it, or after it
has been initiated."
In accordance with the foregoing, Article 246 of the Decision states that:
"The following provisional measures may be ordered, among others:
(a) Immediate cessation of all acts constituting the alleged infringement;
(b) withdrawal from commercial channels of all products resulting from the alleged
infringement, including packaging, wrapping, labels, printed material or advertising,
or other materials, together with the materials and implements the predominant use of
which has been the commission of the infringement;
(c) suspension of the importation or exportation of the goods or materials or implements
referred to under the previous paragraph;
(d) establishment by the alleged infringer of an adequate guarantee;  and
(e) temporary closure of the business belonging to the defendant or accused, if necessary,
to avoid continuation or repetition of the alleged infringement."
Article 568 of the Commercial Code states that:
"The owner of a patent or a licence may request the court to take the precautionary measures
necessary to prevent infringement of the rights guaranteed to owners of patents (…)
Provisional measures may consist of obliging the infringer to furnish security so as to
guarantee that he will not carry out the acts of which he has been accused;  the seizure of
articles manufactured in infringement of the patent and prohibiting their advertising;
attachment of the equipment or elements used to manufacture the articles infringing the patent
or any other equivalent measure."31 (emphasis added)
                                                     
30 Article 413, Code of Criminal Procedure.
31 This Article also applies to utility models, industria l designs, trademarks, trade names, business signs
and advertising slogans.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 37
43. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder of adequate damages to compensate the injury which he has suffered.
Article 239 of Decision 486 provides the following:
"The owner of a patent shall have the right to take legal action for damages resulting from
unauthorized use of the invention or utility model between the period when it became public
knowledge and the respective application was opened to consultation and the date of granting
the patent.  Compensation shall be lawful only in respect of the subject matter covered by the
patent grant, and shall be computed in accordance with the patent’s effective exploitation by
the defendant over the period in question."
Article 241 of Decision 486 indicates that:"The plaintiff or defendant may request the competent national authority to order one or more
of the following measures, among others:
(…)(b) compensation for damages."
As regards domestic legislation, Article 571 of the Commercial Code provides that the owner
or licensee of a patent, utility model, industrial design, trademark, advertising slogan, trade name or
business sign may take action for damages resulting from the unauthorized use of such industrial
property assets without the need to request the corresponding precautionary measures or in cases
where such measures have been refused.
Likewise, Article 20 of  Law No. 256 of 1996 on unfair competition provides the following:"Action.  The following action may be taken against acts of unfair competition:1. Action to uphold the complaint and punish the offence. A person affected by acts of
unfair competition shall have the right to take action for the purpose of seeking alegal ruling that the acts carried out are unlawful and a subsequent order that the
infringer cease the infringement and compensate for the damages caused to the
plaintiff.  The plaintiff may, at any time during the proceedings, request that the
precautionary measures allowed by Article 33 of this Law be implemented (…)"
44. Please quote what provisions of your legislat ion authorize judges to order the payment
of the right holder’s expenses by the infringer.
The costs corresponding to procedural costs (stamp duty, fees for judicial officials,
formalities, and legal fees, in accordance with paragraph 2, Article 393
32, of the Code of Civil
                                                     
32 Article 393, Code of Civil Procedure:  "The costs shall be paid in the court at the respective level or
the court of appeal and the order imposing them or the or der issued by the higher authority shall be enforceable
immediately subject to the following rules:
1. The clerk of the court shall make the settlement and the reporting magistrate or the judge shall
approve it or order its rejection.
2. The payment shall include the amount of the stamp duty, the fees due to judicial officials, other
judicial costs incurred by the successful party, provided that they are substantiated, are necessaryIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 38
Procedure)33, must be ordered ex officio by the court agai nst the losing party.  Article 392 of the Code
of Civil Procedure determines that:
"In proceedings and subsequently where there is dispute, an order to pay costs shall be subject
to the following rules.
1. The losing party shall be ordered to pay the costs (…)"
45. Please explain if and how judges have the au thority to order that infringing goods are
placed outside channels of commerce or destroyed.
Yes, pursuant to the provisions mentioned below, the courts may remove infringing goods
from channels of commerce and, where necessary, destroy them.
Article 246 of Decision 486 provides that one of the precautionary measures that may be
requested before the competent authorities is withdrawal from commercial channels of all products
resulting from the alleged infringement, including containers, packaging, labels, printed material oradvertising, or other materials, together with th e materials and tools predominantly used to commit
the infringement;  the suspension of the import or e xport of the goods or materials or tools referred to
above;  and temporary closure of the business belonging to the defendant or accused, if necessary, to
avoid continuation or repetition of the alleged infringement, inter alia .
Moreover, Article 568 of the Commercial Code indicates that precautionary measures may
involve seizure of the articles manufactured in violation of the industrial property right, attachment of
machinery or materials used to manufacture the articles infringing the industrial property right or any
other equivalent measures.  The precautionary measures provided in Articles 678, 681, 682 and 690 of
the Code of Civil Procedure include seizure and attachment of goods, whether or not subject toregistration, inter alia .
Because there is no exhaustive list of the precautionary measures that may be requested in the
course of civil proceedings, requests may be made for the imposition of precautionary measures that
are not specifically provided in the civil legislation but are not excluded either.  They include the
following:
Seizure
34 of the implements and tools used to commit a fraudulent punishable act or that
result from its commission and are not freely on sale, which must be handed over to the State
Prosecuting Authority or the body it designates, unless the law orders  their destruction, pursuant to
Article 338 of the Code of Criminal Procedure.
Confiscation of substances, appliances and other objects intended for the performance of acts
connected with indications of goods with distinctive marks that are misleading in respect of their
origin or content35 in accordance with Article 4336 of Decree No.1355 of 1970 and Article 42, which
                                                                                                                                                                    
and relate to acts authorized by the law, and the legal fees fixed by the reporting magistrate or
judge, even if the case takes place without the assistance of an attorney (…)"
33 "Legal fees correspond to the costs incurred for attorneys … they represent payment for the costs
incurred by the party in the legal defence of its interests … this order does not necessarily correspond to the feesactually paid by the successful party to its attorney."  Constitutional Court, Judgement C-539 of 28 July 1999.
Reporting judge:  Eduardo Cifuentes Muñoz.
34 Article 67 of the Code of Criminal Procedure, Law No.600 of 2000;  Article 100 of the Criminal
Code, Law No. 599 of 2000.
35 The aforementioned conduct constitutes a speci al violation affecting the national economy, as
provided in Article 41 of Decree No. 522 of 1971.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 39
provide that, if the act is performed by traders personally or through the action of persons in
establishments owned by them, the closure of the establishment concerned for up to six months shall
be ordered.
46. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
Article 26 of  Law No. 256 of 1996 on unfair competition provides the following:
"When ordering the enquiry requested, the court shall fix the security to be furnished by the
requesting party in order to make good any damages that might be caused (…)"
Article 30 of this Law reads as follows:
"Claim by the party affected by preliminary enquiries.  A party affected by enquiries designed
to collect evidence may claim from the person requesting the enquiry compensation for any
damages that may have been caused, including loss of profit, without prejudice to generalliability for damages caused by the party requesting the measures, where applicable."
and Article 31 states:"Precautionary measures … In accordance with this Article, precautionary measures shall be
governed by the provisions of Article 568 of the Commercial Code and Articles 678 to 691 of
the Code of Civil Procedure."
Article 568 of the Commercial Code provides the following:
"The owner of a patent or a licence may request the court to take the precautionary measures
necessary to prevent infringement of the rights guaranteed to owners of patents (…)
The requesting party shall attach to the request elements constituting written substantiation of
the existence of the infringement … and shall furnish the security fixed in order to guarantee
compensation for damages that may be caused to the alleged infringer or to third parties (…)"
(emphasis added)
Article 678 of the Code of Civil Procedure states that:"The security ordered pursuant to this Code may be in the form of cash, bankers’ drafts, or
letters of credit from insurance firms or credit institutions legally authorized to carry out such
operations (…)"
47. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
The following are the legal regulations impl ementing Article 50 of the TRIPS Agreement.
                                                                                                                                                                    
36 Article 194 of Decree No. 1355 of 1970 states with respect to confiscated goods that their sale by
public auction or handing over to a public welfare institution must be ordered, unless they belong to a third partynot involved in the facts constituting the offence, in wh ich case they must be handed over to that party. The
same Article provides that, in the case of beverages, foodstuffs and provisions in general that are in badcondition, they must be destroyed by the police in the presence of their owner.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 40
Article 50.1(a)
Article 245, Decision 486:
"Any party initiating or preparing to initiate  an action for infringement may request the
competent national authority to order immediate provisional measures for the purpose of
preventing an infringement from occurring, avoiding its consequences, obtaining or
preserving evidence, or ensuring the effectiveness of the action or compensation for damages.
Provisional measures may be requested before starting the action, together with it, or after it
has been initiated."
Article 250:  "The owner of a registered trademark who has valid grounds for suspecting that
the importation or exportation of counterfeit trademark goods will take place may request the
competent national authority to suspend this customs operation (…)"
Article 31,  Law No. 256 of 1996 on unfair competition:
"Precautionary measures.  After it has been proved that an act of unfair competition has taken
place or is being prepared, at the request of the person legally entitled or under that person’s
responsibility, the court may order the temporary cessation thereof and decree the otherprecautionary measures deemed necessary."
Article 568, Commercial Code: "The owner of a patent or a licence may request the court to
take the precautionary measures necessary to prevent infringement of the rights guaranteed to
owners of patents (…)"
Article 50.1(b)
Article 245, Decision 486:"Any party initiating or preparing to initiate  an action for infringement may request the
competent national authority to order immediate provisional measures for the purpose ofpreventing an infringement from occurring, avoiding its consequences, obtaining or
preserving evidence, or ensuring the effectiveness of the action or compensation for damages.
Provisional measures may be requested before starting the action, together with it, or after it
has been initiated."
According to Article 283 of the Code of Civil Pr ocedure, a party that wishes to make use of
documents within the control of the other party must request their presentation within the time limit
allowed for submitting evidence.  Article 288 of the Code provides that, either ex officio or at the
request of a party, the presentation of some of the business books and papers relating to the subjectmatter of the proceedings may be ordered.
Article 285 of the Code provides the following:" … If a business person does not submit the books and papers whose presentation has been
ordered, conceals any of them or prevents their examination, the facts which the other party
seeks to prove shall be considered proven if admission of guilt is allowed for such acts (…)"
which means that, where a party ordered to produce documents opposes the order, the court
must evaluate the grounds for his opposition and if these are unjustified, the facts which the
party requesting the presentation of the documents seeks to prove shall be taken as proven,IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 41
unless admission of guilt is not allowed for such acts, in which case opposition shall be
considered evidence against the person opposing the presentation.  This Article also provides
that the same procedure shall be followed where a party has not lodged opposition but fails to
produce the documents, unless he provides justification for his failure to do so in due time andsubsequently presents the documents when ordered by the court.
Article 50.2
Article 248, Decision 486:"Where a provisional measure has been adopted inaudita altera parte, the party affected shall
be given notice without delay after the execution of the measure.  The defendant may request
the competent national authority to conduct a review of the measure executed.
Unless stipulated otherwise, any provisional measure executed inaudita altera parte shall
cease to have effect by operation of law if infringement proceedings are not initiated withinten days following the execution of the measure.
The competent national authority may modify, revoke or confirm the provisional measure."In cases of unfair competition, immediate precautionary measures may be taken (24 hours)
subject to proof of the existence of a serious imminent danger and payment of the security fixed by
the competent judge or official in order to offset any prejudice that may be caused to the presumed
infringer or to third parties.  In such cases, Article 31 of  Law No. 256 of 1996 states that the
measures may be taken without hearing the opposing party.
Without prejudice to the foregoing, it should be noted that Article 327 of the Code of Civil
Procedure provides that:
"Precautionary measures shall be implemented immediately, prior to notification to the
opposing party of the order under which they are imposed.  If they were imposed prior to the
proceedings, the party concerned shall be notified on the day on which he/she appears in the
proceedings or acts in them or signs the appropriate submission",
therefore precautionary measures must always, without exception, be imposed prior to the notification
to the opposing party.
Article 50.3
Article 247, Decision 486:"A provisional measure shall be ordered only where the persons requesting it accredit their
lawful right to act and the existence of the infringed right, and provide evidence allowing fora reasonable presumption of infringement or th at infringement is imminent. The competent
national authority may require persons requesting the measure to provide security or
sufficient equivalent assurance before ordering such a measure.
The applicant for a provisional measure in respect of particular goods shall supply the
necessary information and a sufficiently detailed and precise description so that the allegedly
infringing goods can be identified."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 42
Article 31, Law No. 256 of 1996 on unfair competition:
"Precautionary measures … In accordance with this Article, precautionary measures shall be
governed by the provisions of Article 568 of the Commercial Code and Articles 678 to 691 ofthe Code of Civil Procedure."
Article 568, Commercial Code:"The owner of a patent or a licence may request the court to take the precautionary measures
necessary to prevent infringement of the rights guaranteed to owners of patents.
The requesting party shall attach to the request elements constituting written substantiation of
the existence of the infringement … and shall furnish the security fixed in order to guarantee
compensation for damages that may be caused to the alleged infringer or to third parties (…)"
Article 50.4
Article 248, Decision 486:"Where a provisional measure has been adopted inaudita altera parte, the party affected shall
be given notice without delay after the execution of the measure. The defendant may requestthe competent national authority to conduct a review of the measure imposed.
Unless stipulated otherwise, any provisional measure imposed inaudita altera parte shall cease
to have effect by operation of law if infringement proceedings are not initiated within ten days
following the execution of the measure.
The competent national authority may modify, revoke, or confirm the provisional measure."Article 30,  Law No. 256 of 1996 on unfair competition:"Claim by the party affected by preliminary enquiries.  A party affected by enquiries designed
to collect evidence may claim from the person requesting the enquiry compensation fordamages that may have been caused, including loss of profit, without prejudice to general
liability for any damages caused by the party requesting the measures, where applicable."
Article 569, Commercial Code:
"A decision ordering precautionary measures is subject to appeal without stay of execution;
which means that the court’s decision is not held in abeyance.  Nonetheless, an appeal against
the order for precautionary measures may lead to suspension of the order if the alleged
infringer furnishes security whose nature and am ount shall be equal to that provided by the
plaintiff in order to compensate for any damages that may be caused."
Article 570, Commercial Code:"Within four months following the date of the order imposing precautionary measures, the
alleged infringer must present the court with evidence of his right to act.  If he fails to do so,his right shall lapse.
If the plaintiff gives valid reasons for his conduct, the court shall lift the precautionary
measures and shall order the defendant to compensate for the damage caused."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 43
Article 348, Code of Civil Procedure:
"Unless otherwise provided, an appeal for revers al shall be against the orders issued by the
court (…)"
Article 350, Code of Civil Procedure:"The purpose of an appeal to a higher court shall be to allow the latter to examine the matter
on which a ruling has been given at the lower level and revoke or amend it.
An appeal to a higher court may be made by the losing party (…)"
Article 50.5
Article 247, Decision 486:
"A provisional measure shall be ordered only where the persons requesting it accredit their
lawful right to act and the existence of the infringed right, and provide evidence allowing for
a reasonable presumption of infringement or th at infringement is imminent. The competent
national authority may require persons requesting the measure to provide security or
sufficient equivalent assurance before ordering such a measure.
The applicant for a provisional measure in respect of particular goods shall supply the
necessary information and a sufficiently detailed and precise description so that the allegedly
infringing goods can be identified."
Article 31,  Law No. 256 of 1996 on unfair competition:
"Precautionary measures … In accordance with this Article, precautionary measures shall be
governed by the provisions of Article 568 of the Commercial Code and Articles 678 to 691 of
the Code of Civil Procedure."
Article 568, Commercial Code:"The owner of a patent or a licence may request the court to take the precautionary measures
necessary to prevent infringement of the rights guaranteed to owners of patents.
The requesting party shall attach to the request elements constituting written substantiation of
the existence of the infringement … and shall furnish the security fixed in order to guarantee
compensation for damages that may be caused to the alleged infringer or to third parties (…)"
(emphasis added)
Article 50.6
Article 248, Decision 486:"… Unless stipulated otherwise, any provisional measure imposed inaudita altera parte shall
cease to have effect by operation of law if infringement proceedings are not initiated withinten days following the execution of the measure.
The competent national authority may modify, revoke, or confirm the provisional measure."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 44
Article 50.7
In addition to the security to be furnished in order to guarantee the payment of any prejudice,
Article 570 of Commercial Code provides the following:
"Within four months following the date of the order imposing precautionary measures, the
alleged infringer must present the court with evidence of his right to act.  If he fails to do so,
his right shall lapse.
If the plaintiff gives valid reasons for his conduct, the court shall lift the precautionary
measures and shall order the defendant to compensate for the damage caused."
48. Please identify the competent authorities in  your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.
In the course of proceedings relating to industrial property offences, infringement or unfair
trade practices, the competent courts and the Supervisory Authority for Industry and Trade may order
the customs authorities, as a precautionary measure previously requested by the interested party, not
to release goods into circulation.  The reason for this is that the precautionary measures allowed by
the Code of Civil Procedure, the Commercial Code and the Code of Criminal Procedure are not
exhaustive and the competent court or official may order another type of precautionary measure at itsdiscretion in order to avoid, prevent or stop an infringement, offence or act of unfair competition
related to industrial property rights.
49. Please indicate whether or not procedures  are available to suspend the exporting of
counterfeit goods.
Decision 486 deals with the issue as follows:
"Article 250. – The owner of a registered tr ademark who has valid grounds for suspecting that
the importation or exportation of counterfeit trademark goods will take place may request the
competent national authority to suspend this customs operation. The conditions and security
stipulated in the domestic legislation of the Member Country concerned shall be applicable to
this request and to such an order as that authority may issue.
The party requesting measures to be taken at the border shall be required to supply the
necessary information and a sufficiently detailed and precise description so that the allegedly
infringing goods can be identified.
The competent national authority may, if permitted by the domestic laws of the Member
Country, order the application of measures at the border ex officio .
Article 251. - The competent national authority shall give trademark owners the opportunity
to participate in the inspection of the detained goods in order to substantiate their claims. Theimporter or exporter of those goods shall be entitled to exercise the same right.
The competent national authority shall make all necessary arrangements for confidential
information to be protected during the inspection procedure.
Article 252. - Upon fulfilment of the applicable conditions and the security provisions, the
competent national authority shall order or reject the suspension of the customs operation and
shall inform the applicant accordingly.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 45
In the event that the authority orders the oper ation to be suspended, the notification to the
applicant shall include the name and address of the consigner, importer, exporter, and
consignee of the goods concerned, and the amount of goods to be detained. The importer orexporter of those goods shall be likewise notified of the suspension."
50. Please quote what provisions of your legisl ation authorize the competent authorities to
order the destruction or disposal of infringing goods.
Article 255 of Decision 486 provides the following:
"Once the existence of an infringement has been determined, such counterfeit trademark
goods as the competent national authority may have seized may not be re-exported in an
unaltered state or subjected to a different customs procedure, except in cases duly qualified by
the competent national authority or expressly authorized by the right holder.
Without prejudice to other rights of action available to the right holder and subject to the right
of the defendant to seek review by a judicial authority, the competent national authority may
order the destruction or seizure of infringing goods." (emphasis added)
For further details, see also the reply to question 45.
51. Please indicate whether or not your legislation provides for a de minimis  imports
exception.
Yes, in compliance with Article 60 of the TRIPS Agreement, Article 256 of Decision 486
provides the following:
"Small quantities of goods of a non-commercial nature contained in travellers’ luggage or sent
in small consignments shall be excluded from the application of the provisions of this
chapter."
52. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Article 257 of Decision 486 states the following:
"Member Countries shall provide for criminal procedures and penalties to be applied in cases
of trademark counterfeiting."
In addition, under Colombia’s domestic legislation, the current Criminal Code specifies
various acts that constitute offences of infringement of industrial property rights as follows:
- Article 238 fixes prison sentences and fines for any person who uses, publishes or
discloses a scientific invention, industrial process or application known to him by
reason of his functions, position or profession and which should remain confidential,
therefore, any disclosure of such information by the authorities could also make themliable to criminal proceedings if the said conduct is classified as an offence.
- Article 236 states that anyone who fraudulently uses a legally protected industrial,
commercial or agricultural name, sign, mark, emblem, design, label, patent or
industrial design shall be liable to a term of imprisonment of six (6) months to three(3) years and a fine of 2,000 to 100,000 pesos.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 46
- Lastly, Article 237 penalizes the unlawful use of patents, stating that any person who
manufactures a product without authorization from the owner of the legally protected
right or uses a patented means or process without proper authorization shall be liable
to a term of imprisonment of six (6) months to four (4) years and a fine of 20,000 to500,000 pesos.  The same penalties apply to any person who brings into or takes out
of the country, exhibits, offers for sale or disposes of a product manufactured in
breach of a patent.
Law No. 599 of 2000, the new Criminal Code which will enter into force on 24 July 2000,
defines the following offences related to infringement of industrial property rights:
- Article 306 states that "Any person who fraudulently uses a trade name, sign,
trademark, patent, utility model or industrial design that is legally protected or likely
to be confused with one that is legally protected shall be liable to a term of
imprisonment of two (2) to four (4) years a nd a fine of twenty (20) to two thousand
(2,000) minimum prevailing legal monthly wages", and the same penalty applies toany person who finances, supplies, distributes, puts on sale, markets, transports or
acquires goods produced or distributed in the circumstances described above for
commercial or brokerage purposes.
- Article 307 provides that any person who "manufactures a product without the
authorization of the owner of the legally protected right or uses a patented means or
process without proper authorization shall be liable to a term of imprisonment of
one (1) to four (4) years and a fine of twenty (20) to one thousand (1,000) minimum
prevailing legal monthly wages", and the same penalty applies to any person who
brings into or takes out of the country, exhibits, offers for sale, disposes of, finances,distributes, supplies, stores, transports or acquires a product manufactured in breach
of a patent for commercial or brokerage purposes.
- Lastly, Article 308 provides that any person who "uses, reveals or discloses a
discovery, a scientific invention, an industrial or commercial process or application,
known to him by reason of his functions, position or profession and which should
remain confidential shall be liable to a te rm of imprisonment of two (2) to five (5)
years and a fine of twenty (20) to two thousand (2,000) minimum prevailing legal
monthly wages", and the same penalty appl ies to any person who "unlawfully obtains
knowledge of, copies or obtains a secret related to a discovery, scientific invention,
industrial or commercial process or application", in which case the penalty shall be
three (3) to seven (7) years of imprisonment and a fine of one hundred (100) tothree thousand (3,000) minimum prevailing legal monthly wages if he or a third party
obtains a benefit therefrom.
There is also provision for seizure (Article 67 of the Code of Criminal Procedure, Law
No. 600 of 2000;  Article 100 of the Criminal C ode,  Law No. 599 of 2000) of the implements and
tools used to commit a fraudulent punishable act or  that result from its commission and are not freely
on sale, which must be handed over to the State Prosecuting Authority or the body it designates,
unless the law orders their destruction, pursuant to Article 338 of the Code of Criminal Procedure in
force.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 47
IV. REPLIES TO QUESTIONS POSED BY JAPAN
A. GENERAL PROVISIONS
1. Please explain how Decisions 344, 345, 351 a nd 391 of the Commission of the Cartagena
Agreement are implemented in your country, indicating whether they are applied directly orthrough national legislation.
Pursuant to Article 3 of the Treaty Creating the Court of Justice of the Andean Community
(Cochabamba Protocol of 1996), decisions of th e Cartagena Agreement do not require any domestic
law in order to be incorporated into domestic le gislation:  "Decisions of the Andean Council of
Foreign Ministers or of the Commission and Resolutions of the General Secretariat shall be directly
applicable in Member Countries as of the date they are published in the Official Gazette of the
Agreement … ".
B. 
COPYRIGHT AND NEIGHBOURING RIGHTS
2. Please explain exceptions or exemptions to  the national treatment and most-favoured-
nation treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
As an exception to the principle of national treatment and most-favoured-nation treatment, the
Colombian Government notified the Cartagena Agreement, among Colombia, Venezuela, Ecuador,
Peru and Bolivia, to the TRIPS Council.
C. INDUSTRIAL DESIGNS
3. Please explain how Article 25.2 of the TRIPS Agreement, which provides protection for
textile designs, is implemented in your country, whereas Article 58 of Decision 344 stipulates
that "industrial designs relating to clothing shall not be registerable".
Article 113 of Decision 486, New Common And ean Regime, which replaces Decision 344,
allows the protection of clothing, complying with the provisions in the TRIPS Agreement because the
text states the following:
"The particular appearance of a product that results from any arrangement of lines or
combination of colours, or any two-dimensiona l or three-dimensional external shape, line,
outline, form, texture or material, without the intended use or purpose of the said productthereby being changed, shall be considered an industrial design."
4. Please explain how Article 26.3 of the TRIPS Agreement, which requires protection of
industrial designs for at least ten years, is implemented in your country, whereas Article 65 of
Decision 344 stipulates that the registration of an industrial design shall have a term of eight
years counted from the filing date of the application.
Article 128 of Decision 486 amending Decision 344 provides the following:
"Registration of an industrial design shall be for a term of ten years, counted from the filing of
the application in the Member Country."
Industrial designs are therefore protected in accordance with the provisions of the TRIPS
Agreement.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 48
V. REPLIES TO QUESTIONS POSED BY SWITZERLAND
A. PATENTS
1. Are all categories of products subject to patent protection under your law or are there
any exceptions?  If so, please explain in detail what these exceptions are and how they apply.  In
particular, are all pharmaceutical products patentable?
Our legislation complies with the provisions of the TRIPS Agreement in so far as patents may
be obtained for all inventions, whether for products or processes, in all areas of technology, provided
that they are new, involve an inventive step and are industrially applicable.  Consequently,
pharmaceutical and agricultural chemicals can be protected by patents.
In addition, the legislation determines the exclusions from patentability which are at the
discretion of the Member Countries and are contained in the TRIPS Agreement (including those
which are not considered inventions and those which will not be patentable).
In this connection, Decision 486 of the Co mmission of the Andean Community "Common
Industrial Property Regime", recently approved by the Andean countries, which replaces the previous
Decision 344, abolishes the non-patentability of the WHO’s list of generic drugs.  This Decision
enters into force on 1 December 2000.
Decision 486 of the Commission of the Ande an Community also clearly states that
biotechnology can be the subject of a patent.  It also establishes an exception to inventions which shall
not be patentable by including the following in Article 20(c): "Plants, animals and essentially
biological processes for the production of pl ants or animals other than non-biological or
microbiological processes." (emphasis added)
Decision 486 includes the principles of national treatment and most-favoured-nation
treatment to be found in the WTO’s TRIPS Agreement.
2. Does your law, in accordance with Articl e 27.1 in combination with Article 31 of the
TRIPS Agreement, recognize importation as "working a patent" (and therefore preclude
compulsory licences)?
Our legislation establishes that the owner of a patent is obliged to exploit the patented
invention in any Member Country of the Andean subregion, either directly or through any person
authorized by him.
Exploitation means inter alia  import, together with distribution and marketing of the patented
product, when this is sufficient to satisfy market demand.
If a patent concerns a process that does not lead to a product, the marketing and distribution
requirements are not enforced (addition to Article 60 of Decision 486 of the Commission of the
Andean Community).
Consequently, our legislation recognizes the import of a patented product as a way of proving
the working of the patent, thus excluding compulsory licences at the discretion of the Supervisory
Authority for Industry and Trade, which is the competent authority in Colombia, requested by any
interested party at the expiry of three years after the grant of the patent or four years after the patent
application, whichever is the longer, and subject to compliance with the requirements (of form and of
substance) specified in the law.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 49
In accordance with the foregoing, a compulsory licence shall only be granted when the person
requesting it has previously made efforts to obtain a contractual licence from the owner of the patent
on reasonable commercial terms and conditions and such efforts were not successful within areasonable period of time (third paragraph of Arti cle 61 of Decision 486 of the Commission of the
Andean Community, which replaces the previous Decision 344).
3. Does your law make compulsory licences  subject to the conditions enumerated in
Article 31 of the TRIPS Agreement?  If exception s are provided for, please describe in detail
what these exceptions are and how they apply in Colombian law.
Below, we mention the various grounds for obtaining compulsory licences defined in
Colombia’s legislation, which are subject to and applied in accordance with Article 31 of the TRIPS
Agreement.
Following a declaration by a Member Country of the existence of public interest, emergency
or national security considerations and only for as long as those considerations exist, a patent may at
any time be subject to a compulsory licence for its exploitation, one of the modalities of exploitation
being import of the patented product (Article 65 of Decision 486 of the Commission of the Andean
Community, which enters into force on 1 December 2000).
Likewise, the competent national office, after having obtained the assent of the national
anti-trust authority, may grant compulsory licences, either ex officio or at the request of a party, where
practices are noted that are detrimental to the exercise of free competition, especially where they
constitute abuse of a dominant market position by the patent owner.  (Article 66 of Decision 486 of
the Commission of the Andean Community, which enters into force on 1 December 2000).
In addition, the competent national authority shall grant a licence at any time in the case of
dependent patents, where such a licence is requested by the owner of a patent whose exploitation
necessarily requires the use of another patent, provided that the owner has been unable to secure a
contractual licence on reasonable commercial terms.  (Article 67 of Decision 486 of the Commission
of the Andean Community, which enters into force on 1 December 2000).
Lastly, in the case of patents protecting semiconductor technology, a compulsory licence shall
only be authorized for public non-commercial use or to remedy or rectify a practice declared by the
competent national authority to be anti-competitive.  (Article 68(e) of Decision 486 of the
Commission of the Andean Community, which enters into force on 1 December 2000).
Among the general provisions determined for the various grounds for granting compulsory
licences, Article 68(b) of Decision 486 of the Commission of the Andean Community provides the
following:  " … compulsory licences shall be subject to the following:  they shall be non-assignable,
except with the part of the business or the goodwill which permits their industrial use.  This shall be
evidenced in writing and registered with the competent national office.  Otherwise, those assignments
or transfers shall not be legally binding".
Finally, it should be noted that in Colombia there has not yet been any case of granting or
subjecting a patent to a compulsory licence.
Follow-up question
Does Article 66 of Decision 486 of the Co mmission of the Andean Community, which
should enter into force on 1 December 2000, explicit ly state, as required by Article 31(k) of the
TRIPS Agreement, that only once an anti-competitive practice has been duly determined byIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 50
judicial or administrative process can a Member refrain from applying the conditions set forth
in subparagraphs (b) and (f) of the same article?
Decision 486, which enters into force on 1 December, provides that, as required by Article 31
of the TRIPS Agreement, a Member may only apply the conditions set forth in subparagraphs (b) and
(f) of the Article if an anti-competitive practice has been determined after judicial or administrative
process.
The scope of Article 66 of Decision 486 on compulsory licences for anti-competitive
practices is determined by the provisions of Article 68 of the Decision on some of the criteria for such
licences.  Subparagraph (f) of Article 68, for example, states that a compulsory licence shall "providefor payment of adequate remuneration according to  the circumstances of each case, taking into
account the economic value of the licence, without prejudice to the stipulations of Article 66" and (g)
provides that compulsory licences "shall be used predominantly for the supply of the domestic
market".
4. Does your legislation provide for the principle of the reversal of burden of proof in a
process patent litigation?  Please name the relevant law and explain the relevant section.
Aspects relating to judicial proceedings are dealt with in Title XV – On Actions for
Infringement of Rights – of Decision 486 of the Andean Community.
Follow-up question
Could you please provide us with more detailed information on the principle of the
reversal of burden of proof in a process patent litigation as enshrined in Title XV – "De lasAcciones por Infracción de Derechos" – of  Decision 486 of the Andean Community.
Article 240 of Decision 486 determines the following:
"In cases where infringement of a patent for a process for obtaining a product is claimed,
defendants shall be liable to prove a difference between the process they have used to obtain
the product and the process protected by the patent whose infringement is claimed. For thispurpose, any identical product when produced without the consent of the patent owner shall,
in the absence of proof to the contrary, be deemed to have been obtained by the patented
process:
(a) If the product obtained by the patented process is new; or
(b) if there is a substantial likelihood that the identical product was made by the process
and the owner of the patent has been unable through reasonable efforts to determine
the process actually used."
As can be seen from this provision, determining the burden of proof in such cases obligatorily
and unequivocally lies with the alleged infringer, which is perfectly in accordance with the provisions
in Article 34 of the TRIPS Agreement.  Provided that the product obtained using the patented process
is new or there is a substantial likelihood that the identical product was made by the process and the
owner of the patent has been unable through reasonable efforts to determine the process actually used,it will be the responsibility of the defendant to prove that the process used to obtain the product is
different to the process protected by the patent whose infringement is alleged.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 51
B. PROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed and confidential test
data or other data submitted by an applicant to the responsible State agency in the procedure
for market authorization of a pharmaceutical or of an agricultural chemical product isprotected against disclosure and against unfair commercial use by a competitor, for example, by
prohibiting a second applicant from relying on, or fr om referring to the original data of the first
applicant, when applying subsequently for market authorization for his own product.  Does
your legislation provide for exceptions to this ?  If yes, under what conditions would such
exceptions apply?
Article 266 of Decision 486 of the Commission of the Andean Community, which will enter
into force on 1 December 2000, literally repeats Article 39.3 of the TRIPS Agreement as follows:
"Member Countries, when requiring, as a condition for approving the marketing of
pharmaceutical or of agricultural chemical prod ucts which utilize new chemical entities, the
submission of undisclosed test or other data, the origination of which involves a considerableeffort, shall protect such data against unfair commercial use.  In addition, Member Countries
shall protect such data against disclosure, except where necessary to protect the public, or
unless steps are taken to ensure that the data are protected against unfair commercial use.
Member Countries may take steps to guarantee the protection provided for under this Article."This provision is to be found in Title XVI "On Intellectual Property-linked Trade Practices",
which determines Acts of Unfair Trade Practices (Chapter I);  Business Secrets (Chapter II),
containing Article 266 on pharmaceutical and agricultural chemical products.
Follow-up question
Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible Authorities in the procedure for mark et authorization of a pharmaceutical or of an
agrochemical product, please explain whether and how your legislation prevents the responsible
Authorities or a second applicant from relying on or referring to the original data of the first
applicant for the market authorization procedure of a second product equivalent to the productof the first party.  Does your legislation provide for time-limits before the expiration of which
such data cannot be relied upon or referred to by the Authorities or a second applicant?
Article 263 of Decision 486 provides the following:
"Protection of a business secret shall last as long as the conditions set out in Article 260 exist,
"in other words, for as long as continue to exist the conditions which mean that the
information as a body or in the precise configuration and assembly of its components is
secret, is not generally known among nor readily accessible to persons within the circles that
normally deal with the kind of information in question, has commercial value because it issecret, and has been the subject of reasonable steps by the person lawfully in control of the
information to keep it secret.
Article 260 of Decision 486 lays down the criteria for business secrets and Article 262
provides that: "Persons shall have the possibility of preventing a business secret lawfully within theircontrol from being disclosed to, acquired by or used by third parties in a manner contrary to fair trade
practices" and states that unfair trade practices shall include inter alia "using without the authorization
of the person lawfully in control of that information, a business secret to which the third party had
access under a confidentiality obligation resulting from a contractual or labour trade practice;".IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 52
This shows that the Andean legislation reproduces the provisions in the TRIPS Agreement.
It should also be noted that the holder of a business secret is protected under various
provisions of Colombia’s legislation, for example, unfair competition or criminal regulations, as
explained in the replies to the questions.
With regard to authorization for the marketing of pharmaceutical or agricultural chemical
products in particular, where a second applicant refers to data previously submitted by a third party,
Decision 486 allows each country the possibility of adopting measures to guarantee the protection of
this right, therefore, this matter is now regulated.
VI. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
Note:  Decision 344 has been replaced by Decision 486 – Common Industrial Property Regime –
which will enter into force on 1 December 2000.  Consequently, the replies are based on The
provisions in Decision 486.
A. GENERAL PROVISIONS
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and
most-favoured-nation treatment are provided to nationals of other WTO Members.
The new Decision 486 "Common Industrial Property Regime" includes aspects related to
national treatment and most-favoured-nation treatment:
"Article 1.  Each Member Country shall accord the nationals of other members of the Andean
Community, the World Trade Organization and the Paris Convention for the Protection of
Industrial Property treatment no less favourable than it accords to its own nationals with
regard to the protection of industrial property, subject to the exceptions already provided in
Articles 3 and 5 of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(‘TRIPS’), and in Article 2 of the Paris Convention for the Protection of Industrial Property.
Article 2.  With regard to the protection of industrial property, any privilege or immunity
granted by a Member Country to the nationals of any other Member Country of the Andean
Community shall be accorded to the nationals of all other Members of the World Trade
Organization or of the Paris Convention for the Protection of Industrial Property.
The stipulation set forth in the preceding paragraph shall be applicable without prejudice to
the reservations in Articles 4 and 5 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS)."
As regards plant varieties, the provisions applicable are those in  Law No. 243 of
28 December 1995, approving the International Convention for the Protection of New Varieties ofPlants (UPOV) of 2 December 1961, as revised in Geneva on 10 November 1972 and
23 October 1978.
B. 
COPYRIGHT AND NEIGHBOURING RIGHTS
2. Please explain how Colombia’s copyright law protects computer programs as literary
works and compilations of data as required by Article 10 of the TRIPS Agreement and cite the
relevant provisions.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 53
With regard to computer programs, Article 23 of Decision 351 of the Andean Community of
1993 guarantees their protection through copyright on the same terms as literary works.  The
protection covers both operating programmes and application programmes, in the form of eithersource code or object code.
Concerning data compilations, Article 28 of Decision 351 of the Andean Community of 1993
states that these are protected in so far as the selection or arrangement of the contents constitutes an
intellectual creation.  The protection granted shall not extend to compiled data or information, but it
shall not affect any rights subsisting in the wo rks or materials constituting the said database.
3. Article 11 of the TRIPS Agreement requires th at rental rights be provided for computer
programs and cinematographic works in most instances and Article 14 requires that rental
rights be provided to the producers of phonograms.  Please describe the manner in which rental
rights are provided to right holders in th ese works and phonograms and cite the relevant
provisions of Colombia’s copyright law.
Article 13 of Decision 351 of the Andean Community of 1993 gives the author or his
successors in title the right to carry out, authorize or prohibit distribution of copies of the work to the
public by means of sale, rental or hiring.  This rental right covers all kinds of literary and artistic
works, including computer programs and cinematographic works.
In addition, Article 37(c) gives producers of phonograms the right to authorize or prohibit
distribution of the original and any copy of their phonograms to the public, by means of sale, rental or
any other means.
4. Please identify the term of protection availa ble with respect to wo rks and with respect to
each form of neighbouring righ ts under Colombia’s law on copyright and neighbouring rights
and cite the relevant provisions of law.
Regarding the term of copyright, economic rights are protected throughout the author’s life
and for 80 years after his death, in accordance with Article 21 of  Law No. 23 of 1982.
The rights of performers, producers of phonograms and broadcasting organizations, where the
owner is a natural person, shall be protected throughout the owner’s lifetime and for 80 years after his
death.  Where the owner is a legal person, the term of protection shall be 50 years, counted from the
last day of the year in which the performance, the first publication of the phonogram, or the first
fixation thereof if it was not published, or the transmission of the broadcast took place.  This is inaccordance with Article 2 of  Law No. 44 of 1993.
5. Article 13 of the TRIPS Agreement obliges WTO Members to confine any limitations or
exceptions to copyright to certain special cases th at do not conflict with the normal exploitation
of the work and do not unreasonably prejudice the legitimate interests of the right holder.Please describe any and all limitations and exceptions to copyright provided under Colombia’s
law on copyright and neighbouring rights and cite the relevant provision of law.  Please indicate
how Colombia ensures that those limitations and exceptions do not conflict with the normal
exploitation of works and do not unreasonably prejudice the legitimate interests of the right
holder.
Article 21 of Decision 351 of the Andean Community of 1993 provides that limitations and
exceptions to copyright established by domestic legislation in Member Countries shall be confined to
those cases that do not adversely affect the normal exploitation of the works nor unjustifiably
prejudice the legitimate interests of the owner or owners of the rights.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 54
The following are the provisions concerning limitations and exceptions to copyright:
Article 22 of Decision 351 of the Andean Community of 1993 states the following:"Article 22.  Without prejudice to the provisions of Chapter V and those in the foregoing
Article, it shall be lawful, without the authorization of the author and without payment of any
remuneration, to do the following:
(a) Quote published works in another work, provided that the source and name of the
author are given and on condition that the quotations are made in accordance withfair practice and to the extent justified by the purpose;
(b) reproduce by reprographic means for teaching or for the holding of examinations in
educational establishments, to the extent justified by the purpose, articles lawfully
published in newspapers or magazines or brief extracts from lawfully publishedworks, on condition that such use is made in accordance with fair practice, that it
does not entail sale or any other transaction for payment and that no profit-making
purposes are directly or indirectly pursued thereby;
(c) reproduce a work in single copies on behalf of a library or for archives whose
activities are not conducted for any direct or indirect profit-making purposes,
provided that the original forms part of the permanent stocks of the said library or
archives and the reproduction is made for the following purposes:
(i) to preserve the original and replace it in the event of loss, destruction or
irreparable damage;  or
(ii) to replace, in the permanent stocks of another library or archives, an original
that has been lost, destroyed or irreparably damaged;
(d) reproduce a work for the purposes of judicial or administrative proceedings, to the
extent justified by the purpose;
(e) reproduce and distribute through the press, transmit by broadcasting or public cable
distribution, articles on topical subjects and commentaries on economic, political or
religious subjects published in newspapers or magazines, or broadcast works of the
same nature, in so far as reproduction, broadcasting or distribution to the public havenot been expressly reserved;
(f) reproduce and make accessible to the public, in connection with the reporting of
current events, by means of photography, cinematography, broadcasting or cable
distribution to the public, works seen or heard in the course of such events, to theextent justified by the informatory purpose;
(g) reproduce in the press, by broadcasting or transmission to the public, political
speeches and also dissertations, addresses, sermons, speeches delivered in the course
of judicial proceedings or other works of similar character presented in public, for thepurpose of reporting current events, to the extent justified by the purpose and subject
to the right of the authors to publish collections of such works;IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 55
(h) undertake the reproduction, transmission by broadcasting or cable distribution to the
public of the image of an architectural work, work of fine art, photographic work or
work of applied art located permanently in a place open to the public;
(i) in the case of broadcasting organizations, make ephemeral recordings using their own
facilities and for use in their own broadcasts of a work in respect of which they have
the right of broadcasting.  The broadcasting organization shall be obliged to destroy
the recording within the time or under th e circumstances provided for in national
legislation;
(j) effect the performance or execution of a work in the course of the activities of an
educational institution, by the staff and students of the said institution, provided that
no charge is made for admission and no direct or indirect profit-making purpose is
pursued and that the audience consists solely of the staff and students of the
institution or relations or guardians of pupils and other persons directly associated
with the activities of the institution;
(k) in the case of a broadcasting organization, ma ke a transmission or retransmission of a
work originally broadcast by it, provided that the public transmission or
retransmission occurs at the same time as the original broadcast and the work is
broadcast or transmitted publicly, without any alteration."
Law No. 23 of 1982 provides the following limitations and exceptions:"Article 31.  It shall be permissible to quote an author by transcribing the necessary passages,
insofar as they are not of such length and continuity that they might reasonably be considereda simulated, substantial reproduction constituting a prejudice for the author of the work from
which they were taken.  Every quotation shall mention the name of the author of the work
quoted and the title of that work.
Where the inclusion of the works of others constitutes the main part of the new work, the
court shall, at the request of any interested party, make an equitable assessment in an oral
proceeding, awarding a proportional amount to each of the owners of the works included.
Article 32.  It shall be permissible to make use, to the extent justified by the purpose, of
literary or artistic works, or parts thereof, by way of illustration in works intended for
teaching, by means of publications, broadcasts or sound or visual recordings, or to
communicate, without gainful intent and for teaching purposes, works broadcast for use inschools, education, universities and professional training, subject to the obligation to mention
the name of the author and the title of the works thus used.
Article 33.  Any title, photograph, illustration and commentary on a current event, published
by the press or broadcast by radio or television, may be reproduced in so far as this has notbeen expressly prohibited.
Article 34.  It shall be lawful to reproduce, distribute and communicate to the public news or
other information on facts or events that have been publicly disseminated by the press or by
broadcasting.
Article 35.  Speeches delivered or read at deliberative assemblies, in the course of legal
proceedings or proceedings brought before other public authorities, or any lecture, speech,
sermon or other similar work delivered in public, may be published in the periodical press or
broadcast by radio or television in the form of news reports, and without any authorization,IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 56
provided that the ownership of the works concerned has not been expressly reserved.  It is
understood that an author’s works of this kind may not be published in separate collections
without his permission.
Article 36.  Publication of a person’s portrait shall be free in so far as it is related to scientific,
educational or cultural purposes in general or to facts or events of public interest or that may
have occurred in public.
Article 37.  It shall be lawful to reproduce, by any means, a literary or scientific work, such
reproduction having been arranged or effected by the party concerned in one copy for his
private use and without gainful intent.
Article 38.  Public libraries may produce, for the exclusive use of their readers and where
such reproduction is necessary for conservation or for exchange services with other libraries,
likewise public, one copy of protected works deposited in their collections or archives and
which are out of print on the local market.  Such copies may also be produced singly by thelibrary that receives them, should that be necessary for conservation, and solely for the use of
readers.
Article 39.  It shall be permissible to reproduce, by painting, drawing, photography or
cinematography, works that are permanently located on public highways, streets or squares,and to distribute such reproductions or works and communicate them to the public.  With
regard to works of architecture, this provision shall be applicable solely to external views.
Article 40.  Lectures or talks given at establishments of higher, secondary or primary
education may be freely noted and collected by the students to whom they are addressed, buttheir full or partial publication or reproduction shall be prohibited without the written
authorization of the person who gave them.
Article 41.  Any person shall be allowed to reproduce the Constitution, laws, decrees, orders,
resolutions, regulations and other administrative texts and judicial decisions, subject to the
obligation to abide strictly by the official edition and provided that such reproduction is not
prohibited.
Article 42.  The reproduction of protected works or of fragments of such works shall be
permitted, in so far as it is considered necessa ry by the competent authority, for use in the
course of judicial proceedings or by the legislative or administrative bodies of the State.
Article 43.  The creator of an architectural design may not prevent the owner from making
alterations to it, but he shall have the right to prohibit his name from being associated with the
altered work.
Article 44.  The use of scientific, literary and artistic works in a private residence without
gainful intent shall be free."
6. Please describe in detail the rights provided under Colombia’s law on copyright and
neighbouring rights to performers, broadcasters and producers of phonograms and cite the
relevant provisions of law.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 57
Performers
(i) Economic rights
Decision 351 of the Andean Community of 1993 es tablishes the following with regard to the
rights of performers:
"Article 34 – Performers shall have the right to authorize or prohibit the communication to the
public of their live performances in any form and the fixing and reproduction of their
performances.
Nevertheless, performers may not object to the communication to the public of their
performances where they in themselves are broadcast performances or are made from a
previously authorized fixation."
 Law No. 23 of 1982, applicable in so far as it extends the protection granted under
Decision 351 of the Andean Commun ity of 1993, provides the following:
"Article 166.  Performers or their representatives shall have the right to authorize or prohibit
the fixation, recording, communication to the public, transmission or any other form of use of
their performances.  Consequently, without the authorization of the performers, no personmay carry out any of the following acts:
(a) Broadcasting and communication to the public of their performance, except where it
is made from a previously authorized fixation or where the transmission has been
authorized by the broadcasting organization that transmits the first performance;
(b) fixation of their performance not previously fixed on a physical medium;
(c) reproduction of a fixation of their performance in the following cases:  (1) where the
performance was initially fixed without their authorization;  (2) where the
reproduction is made for purposes other than those for which the performers gave
their authorization;  and  (3)  where the performance was initially fixed in accordancewith the provisions of this Law, but the reproduction is made for purposes other than
those specified.
(…)
Article 168.  Once the performers have authorized the incorporation of their performance in a
visual or audiovisual fixation, the provisions of (b) and (c) of Article 166 and (c) of
Article 167 above shall cease to apply."
(ii) Moral rights Law No. 23 of 1982 provides the following:"Article 171.  Performers shall have the moral rights specified in Article 30 of this Law."
"Article 30.  The author shall have the perpetual, inalienable and imprescriptible right:
(a) To claim authorship of his work at any time and, in particular, to demand that his
name or pseudonym be mentioned when any of the acts referred to in Article 12 of
this Law is performed;IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 58
(b) to object to, and to seek relief in connection with, any distortion, mutilation or other
modification of the work, where such action may be or is prejudicial to his honour or
reputation or where the work is discredited thereby;
(c) to keep his work unpublished or anonymous until his death or after it where he has so
ordered by testamentary provision;
(d) to alter it either before or after its publication;
(e) to withdraw it from circulation or suspend any form of use even where such use has
previously been authorized.
Paragraph 1.  The above rights may not be either renounced or assigned.  On transferring or
authorizing the exercise of their economic rights, the authors grant none other than those of
benefit and disposal referred to in the contract concerned, and retain the rights provided for inthis Article.
Paragraph 2.  On the death of the author, the exercise of the rights specified in (a) and (b) of
this Article shall fall to his spouse and consanguineous heirs.  In the absence of the author, his
spouse or consanguineous heirs, the exercise of copyright shall accrue to any natural or legalperson who provides proof of his title to the work concerned.
Paragraph 3.  The protection of the authorship, integrity and authenticity of works that have
fallen into the public domain shall be the responsibility of the Colombian Institute of Culture
when the works do not have owners or successors in title who can defend or represent thosemoral rights.
Paragraph 4.  The rights mentioned in (d) and (e)  may only be exercised against prior
indemnification of third parties for any prejudice that such exercise might cause."
Producers of phonograms
Decision 351 of the Andean Community of 1993 provides the following:"Article 37. – The producers of phonograms shall have the right to:(a) Authorize or prohibit the direct or indirect reproduction of their phonograms;
(b) prevent the importation of copies of the phonogram made without the authorization of
the owner of rights;
(c) authorize or prohibit the public distribution of the original and each copy thereof to
the public by sale, rental or any other means;   and
(d) charge remuneration for each use of the phonogram or copies thereof for commercial
purposes, which remuneration may be shared among the performers on the terms laid
down by the domestic legislation of the Member Countries."
Law No. 23 of 1982 states the following:"Article 172. – The producer of a phonogram shall have the right to authorize or prohibit the
direct or indirect reproduction of that phonogram.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 59
An unlawful copy shall be understood to be one which, whether or not in imitation of the
external characteristics of the lawful copy, incorporates all or part of the producer's
phonogram without his authorization."
Law No. 44 of 1993 provides the following:"Article 69. – Article 173 of the  Law No. 23 of 1982, shall read as follows:When a phonogram published for commercial purposes or a reproduction of such phonogram
is used directly for broadcasting or for any other form of communication to the public, theuser shall pay a single equitable royalty destined for both the performers and the phonogram
producer, the amount of which shall be paid by the user to the performers and to the
phonogram producers through the collective administration organizations established in
accordance with the law, and distributed in equal shares."
Broadcasting organizations
Decision 351 of the Andean Community of 1993 provides the following:
"Article 39. – Broadcasting organizations shall enjoy the exclusive right to authorize or
prohibit:
(a) The retransmission of their broadcasts by any means or process;(b) the fixing of their broadcasts on a physical medium;  and(c) the reproduction of a fixation of their broadcasts."Law No. 23 of 1982 provides the following:"Article 177.  Broadcasting organizations shall have the exclusive right to authorize or
prohibit the following acts:
(a) The retransmission of their broadcasts;(b) the fixing of their broadcasts;
(c) the reproduction of a fixation of their broadcasts;
(1) where the fixation used to make the reproduction was made without
authorization;
(2) where the broadcast was initially fixed in accordance with the provisions of
this Law, but the reproduction is made for purposes other than those
specified."
C. 
TRADEMARKS
7. Please explain how Colombia’s trademark law provides for a presumption of likelihood
of confusion, as required by Article 16.1 of th e TRIPS Agreement, where an identical mark for
identical goods and services is used without auth orization on identical goods or services, and cite
the relevant provision.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 60
Decision 486 of the Commission of the Cartagena Agreement, in conformity with the
provision in Article 16.1 of the TRIPS Agreement, establishes the presumption of likelihood or
confusion in Article 155 as follows:
"The owner of a registered trademark shall have the exclusive right to prevent all third parties
not having the owner's consent from  engaging in the following acts:
(a) Using or affixing the trademark or a similar or identical distinguishing sign to
products in respect of which the trademark is registered;  to products connected with
the services for which the trademark is registered;  or to the containers, wrapping,packing or packaging of those products;
(…)(d) using in the course of trade identical or similar signs to the trademark for goods or
services, where such use may result in a likelihood of confusion or mistaken
association with the registration owner.  In the case of the use of an identical sign for
identical goods or services, a likelihood of confusion shall be presumed." (emphasis
added)
As can be seen, the provision does not only state that use of an identical mark to distinguish
the same products or services constitutes a presumption of the likelihood of confusion, but also
provides that such use may give rise to legal pr oceedings by the owner of the trademark against any
person who uses the sign without his consent.
8. Please explain whether and how Colombia’s trademark and other laws ensure
protection of well-known trademarks and service marks, citing the relevant provisions of law.
Decision 486 of the Commission of the Cartagena Agreement protects trademarks and other
well-known signs, defining them in Article 224, whic h provides that "A well-known distinctive sign is
understood to mean a sign that is recognized as su ch in any Member Country by the pertinent sector,
independently of the way or means by which it was made known."
In addition, such signs are protected through the following mechanisms:
Grounds for non-registration
Subparagraph (h) of Article 136 of Decision 486 states the following:"Those signs, whose use in commerce constitutes an impediment to the rights of third parties
may not be registered as trademarks, in particular where:  ( … )
(h) [they] consist of a total or partial reproduction, imitation, translation, transliteration or
transcription of a well-known sign belongin g to a third party without regard to the
type of product or service to which the sign applies where its use would lead to a
likelihood of confusion or association with the third party or with its goods or
services;  taking unfair advantage of the prestige of the sign;  or weakening its
distinctive force or its use for commercial or advertising purposes."
This is a preventive mechanism, so it is necessary to prove that it is a well-known mark
according to the illustrative criteria listed in Article 228 as follows:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 61
"In order to determine whether a distinctive sign is well-known, due account shall be taken of
the following criteria, inter alia :
(a) The extent to which it is known in the relevant sector in any Member Country;
(b) the lifespan of the distinctive sign and the size of the geographical area where it is
used within and outside any Member Country;
(c) the length of time during which the distinctive sign has been promoted and the size of
the geographical area where it is promoted, within or outside any Member Country,
including its advertising and presentation at fairs, exhibitions or other events in
connection with the goods or services, the establishment or the activity to which it is
applied;
(d) the value of all investments made in promoting the distinctive sign or the
establishment, activity, goods or services to which it is applied;
(e) figures for the sales and income of the owner, both at the international level and in the
Member Country where protection is being sought, in respect of the distinctive sign
whose well-known character is alleged;
(f) the extent of the inherent or acquired distinctiveness of the sign;
(g) the book value of the sign as a corporate asset;
(h) the number of requests from persons interested in obtaining a franchise or licence for
the sign in a specific territory;
(i) the existence of significant manufacturing, purchasing or storage activities by the
owner of the sign in the Member Country where protection is being sought;
(j) the international trade-related aspects;  or
(k) the existence and duration of any registration or application for registration of the
distinctive sign in the Member Country concerned or in any other country."
Action to prohibit use
Article 231 of Decision 486 provides that the owner of a well-known sign may bring
proceedings to prevent its use as follows:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 62
"The owner of a well-known distinctive sign may take action to prevent its use by third
parties and may bring such action and take such measures as may be appropriate with the
competent national authority.  The owner may also prevent a third party from engaging in
such acts in respect of the sign as are stipulated in Article 15537, the limitations established
in Articles 15738 and 15839 being applicable."
Article 232 of the Decision fixes the time-limit for action to prevent the use of the sign, as
follows:
                                                     
37 Article 155, Decision 486, of the Commission of the Cartagena Agreement:  "The owner of a
registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent
from engaging in the following acts:
(a) Using or affixing the trademark or a similar or identical distinguishing sign to products in
respect of which the trademark is registered;  to products connected with the services for
which the trademark is registered;  or to th e containers, wrapping, packing or packaging of
those products;
(b) removing or changing the trademark, once it has been placed on or affixed to the products in
respect of which the trademark is registered, for commercial purposes;  to products connected
with the services for which it is registered;  or to the containers, wrapping, packing or
packaging of those products;
(c) manufacturing labels, containers, wrapping, packing, or such other materials as may reproduce
or contain the trademark and sel ling or storing such materials;
(d) using in the course of trade identical or similar signs to the trademark for goods or services,
where such use may result in a likelihood of confusion or mistaken association with theregistration owner.  In the case of the use of an identical sign for identical goods or services, alikelihood of confusion shall be presumed;
(e) using in the course of trade identical or sim ilar signs to a well-known trademark with respect
to any goods or services, where such use, by weakening the distinctive force or the value of
that trademark for commercial or advertising purposes or by taking unfair advantage of the
prestige of the trademark or of its owner, could unjustly damage the registration owner’seconomic or commercial interests;
(f) making public use of identical or similar signs to a well-known trademark, even for purposes
that are non-commercial, where such use could weaken the distinctive force or value of thattrademark for commercial or advertising purposes  or take unfair advantage of its prestige."
38 Article 157, Decision 486, of the Commission of the Cartagena Agreement:
"Provided that it is done in good faith and does not constitute use as a trademark, third parties may,
without the consent of the owner of the registered trademark, make use in the market of their own names,addresses or pseudonyms, a geographical name or any other precise indication concerning the kind, quality,amount, purpose, value, place of origin or time of production of their goods or of the rendering of their services
or other characteristics thereof, provided  that such use is confined to identification or information purposes only
and is not likely to create confusion over the source of the goods or services.
Trademark registration shall not confer on the owner the right to prevent a third party, where
proceeding in good faith, from using the trademark to announce, even in advertising using brand comparisons,
to offer for sale or advertise the existence or availability of lawfully trademarked goods or services or fromadvertising the compatibility or suitab ility of spare parts or accessories that may be used with goods bearing the
registered trademark, provided that su ch use is confined to the purpose of informing the public and is unlikely to
lead to confusion over the corporate origin of the goods or services concerned."
39 Article 158, Decision 486, of the Commission of the Cartagena Agreement:
"Trademark registration shall not confer on the owner the right to prevent third parties from engaging
in trade in a product protected by registration once the owner of the registered trademark or another party with
the consent of or with economic ties to that owner has introduced that product into trade in any country, in
particular where any such products and the containers or packaging in direct contact with the product concerned
have not undergone any change, alteration, or deterioration.
For the purposes of the preceding paragraph, two pe rsons shall be considered to have economic ties
when one of the persons is able to exercise a decisive in fluence over the other, either directly or indirectly, with
respect to use of the trademark right or when a third pa rty is able to exert that influence over both persons."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 63
"The right to action against unauthorized use of a well-known distinctive sign shall lapse five
years counted from the date on which the owner was informed of that use, except where such
use was started in bad faith, in which case the right to action shall not lapse.  Such action shall
not affect any action for damages that may be brought pursuant to ordinary law."
Action to cancel or amend registration of a domain name or electronic mailing address by an
unauthorized third party when it contains a well-known distinctive sign
Article 233 of Decision 486 contains the following provisions on action to cancel or amend
the registration of a domain name or electronic mailing address which contains a well-known sign:
"The competent national authority shall, at the request of the owner or lawful right holder in
respect of a well-known distinctive sign, where the said sign has been unlawfully registered
by an unauthorized third party in a Member C ountry as part of a domain name or electronic
mailing address, order the cancellation or amendment of the registration of the domain name
or electronic mailing address, provided that use of that name or address is likely to have oneof the effects cited in the first and second paragraphs of Article 226."
Action for cancellation on grounds of similarity with a well-known trademark
Article 235 of Decision 486 provides the following:"Without prejudice to recourse to the grounds for cancellation stipulated in Articles 165 and
169, if permitted by domestic legislation, the competent national office shall cancel the
registration of a trademark, at the request of the legitimate owner where it is identical or
similar to one that was well-known, according to the legislation in force, at the timeregistration was requested."
D. 
GEOGRAPHICAL INDICATIONS
9. Please describe in detail how and under what laws geographical indications are
protected in Colombia and cite the relevant provisions of law.
Title XII of Decision 486 covers geographical indications, subdivided into two categories:
appellations of origin and indications of origin.
Article 201 defines an appellation of origin as "a geographical indication consisting of the
name of a particular country, region, or locality or of a name which, without being that of a particular
country, region or locality, refers to a specific geographical area whose name is used to identify aproduct originating therein, the qualities, reputation or characteristics of which are exclusively or
essentially attributable to the geographical environment in which it is produced, including both natural
and human factors".
Article 221 defines an indication of origin as "a name, expression, image or sign that indicates
or evokes a particular country, region, locality or place".
As can be seen from the foregoing, appellations of origin are fully assimilated to the
geographical indications covered by Article 22 of the TRIPS Agreement and are thus properly
protected by Community legislation.  In addition, in the same way as the TRIPS Agreement,Decision 486 gives special protection to appellations of  origin identifying wines and spirits, providing
in Article 215 that:IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 64
"Member Countries shall prevent use of an appellation of origin identifying wines or spirits
for goods of this kind not originating in the place indicated by the appellation of origin in
question, even where the true origin of the goods is indicated or the geographical indication is
used in translation or accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’,or the like."
It should be noted that Article 214 of Decision 486 states with regard to appellations of origin
that "Use by unauthorized persons of appellations of origin, including cases where such use is
accompanied by indications of gender, type, imitation and other similar indications, in such manner as
is likely to cause confusion among consumers, shall be considered an infringement of that intellectual
property right and as such sanctionable by punishment", a provision which is in harmony withArticle 22.1 of the TRIPS Agreement and the aforementioned Articles 258 and 259 of Decision 486,
as well as Article 15 of  Law No. 256 of 1996 on unfair competition and Title XV of Decision 486,
which deals with action for infringement of righ ts, precautionary measures, border measures and
criminal procedures.
Complementary measures
With regard to this aspect, it is also important to note that, similarly, Articles 25840 and 25941
of Decision 486 determine industrial property-related acts of unfair competition and Article 15 of
Law No. 256 of 1996 on unfair competition states that "Without prejudice to the provisions in theCriminal Code and in international treaties, unauthorized use of another person’s distinctive signs or
false or misleading appellations of origin, even when accompanied by an indication of the true origin
of the product or expressions such as ‘model’, ‘system’, ‘type’, ‘kind’, ‘class’, ‘manner’, ‘imitation’
and similar expressions shall be considered unfair".
10. Does the law of Colombia regarding geographical indications provide for any of the
exceptions to protection of geographical indica tions contained in Article 24 of the TRIPS
Agreement and, if so, please describe the way in which the exception is applied and cite the
relevant provisions of law?
Decision 486 of the Commission of the Cartagena Agreement provides several exceptions to
the protection of geographical indications contained in Article 24 of the TRIPS Agreement, as will beseen below:
Subparagraph (b) of Article 202, in conformity with Article 24.6 of the TRIPS Agreement,
states that "The following appellations may not be declared appellations of origin:
(…)
                                                     
40 "Article 258. – Any act carried out in respect of intellectual property in the course of trade that is
contrary to honest commercial prac tices shall be considered unfair."
41 "Article 259. – The following, among others, constitute industrial property-related unfair trade
practices:
(a) Any act which, by any means whatsoever, is capab le of causing confusion with respect to the
business, goods or industrial activity of a competitor;
(b) false affirmations made in the course of trad e that are capable of discrediting a competitor’s
business, goods, or industrial or commercial activity;  or
(c) indications or affirmations whose use in the course of trade may mislead the public with
regard to the nature, method of manufacture, characteristics, usefulness, or quantity of thegoods in question."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 65
(b) … common or generic terms that distinguish the product concerned, namely, terms
considered as such both by persons with knowledge of the area concerned and by the
general public."
Article 215, in conformity with Article 24.4 of the TRIPS Agreement, provides that:
"(…)Member Countries may not prevent continued and similar use of a particular appellation of
origin of another country identifying wines or spirits in connection with goods or services by
any of their nationals who have used that geographical indication in a continuous manner withregard to the same or related goods or services within the territory of the respective Member
Country for at least ten years preceding 15 April 1994 or, in good faith, preceding that date."
Articles 218 and 219, in conformity with Article 24.9 of the TRIPS Agreement, provide the
following respectively:
"Article 218. – Competent national offices may, where the application is made by producers,
extractors, manufacturers or craftsmen with a legitimate interest in the matter or the
respective public authorities, recognize appellations of origin protected in another Member
Country.
To be eligible for such protection the appellations of origin, must have been declared as such
in their countries of origin.
Article 219. – Competent national offices may recognize the protection accorded by third
countries to appellations of origin or geograph ical indications, provided that an agreement to
which the Member Country in question is party so specifies.  To be eligible for such
protection, the appellations of origin must have been declared as such in their countries of
origin."
E. 
INDUSTRIAL DESIGNS
11. Please describe in detail the way in which industrial designs, including textile designs,
are protected under Colombia’s laws and cite the relevant provisions of law.
Term of protection
Decision 486 gives industrial designs a term of  protection of ten years: "Registration of an
industrial design shall be for a term of ten years,  counted from the filing of the application in the
Member Country."
Protection of textile designs
In addition, as regards exceptions to the registration of industrial designs, Article 113 of
Decision 486 eliminates the exception concerning clothing, bearing in mind that the TRIPS
Agreement specifically permits this in Article 25.2.  Article 113 defines industrial designs as follows:
"… any arrangement of lines or combination of colours or any two-dimensional or
three-dimensional external shape, line, outline,  form, texture or material, without the intended
use or purpose of the said product thereby being changed …".IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 66
Less complex and costly registration procedures
With a view to making the registration procedure for industrial designs less costly and
complex, Decision 486, aligning itself on the provisions in Article 25.2 of the TRIPS Agreement,abolishes the ex officio examination of the novelty of applications for industrial designs, which is
only carried out if there is opposition to the application.
Rights of owners of protected industrial designs
In conformity with Article 26.1 of the TRIPS Agreement, Article 129 of Decision 486
provides that:
"Registration of an industrial design shall conf er on the owner thereof the right to prevent
third parties from making use of the design concerned. By virtue of that prohibition, the
owner of the registration shall be entitled to proceed against any third party who, without his
consent, manufactures, imports, offers for sale, markets or makes commercial use of productsthat incorporate or reproduce the industrial design.
Registration shall likewise confer the right to proceed against any person who produces or
markets an article whose design only presents minor differences with respect to the protected
design or whose appearance is the same as the protected design."
F. 
PATENTS
12. Please explain whether or not inventions within the categories specified below are
eligible to be patented under Colombian law if they are otherwise novel, involve an inventive
step and are industrially applicable:
(a) Process inventions which, in whole or in part, consist of steps that are performed
by a computer and are directed by a computer program;
Processes which make a technical contribution to the state of the art and are not covered by
the exceptions to patentability may be patented.42  This does not change if a computer is involved in
performing or directing the process. Nevertheless, if the process itself is not patentable, it does not
become patentable simply because a computer is involved.
                                                     
42 Article 15 of Decision 486 of the Commission of the Cartagena Agreement provides that the
following shall not be considered inventions: discoverie s, scientific theories and mathematical methods; any
living thing, either complete or partial, as found in nature, natural biological processes and biological material asexisting in nature or able to be separated, including the genome or germplasm of any living thing; literary andartistic works or any other aesthetic creation protected by  copyright; plans, rules and methods for the pursuit of
intellectual activities, playing of games or economic and  business activities; computer programs and software,as such; and methods for presenting information. Article 20 states that the following shall not be patentable:
inventions whose commercial exploitation in the territory of the respective Member Country must be prevented
in order to protect public order or morality, provided that the commercial exploitation of the invention shall notbe considered contrary to public order or morality mere ly because of the existence of a legal or administrative
provision which prohibits or regulates such exploitation; inventions whose commercial exploitation in therespective Member Country must be prevented in order to protect human or animal health or life or to conserve
plants or the environment. For this purpose, the commercial exploitation of an invention shall not to be
considered contrary to human or anim al health or life or the conservation of plants or the environment merely
because of the existence of a legal or administrative pr ovision which prohibits or regulates such exploitation;
plants, animals and essentially biological processes for the production of plants or animals other than non-biological or microbiological processes; therapeutic or surgical methods for the treatment of humans or animals,
as well as diagnostic methods applied to human beings or animals.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 67
(b) product inventions consisting of elements of a computer-implemented invention
including:
(i) machine-readable computer program code stored on a tangible medium
such as a  floppy disk, comput er hard drive or computer memory;
Computer programs are not protected under industrial property but under copyright.43
(ii) a general purpose computer whose novelty over the prior art arises
primarily due to its combination with a specific computer program;
Products which include a combination of hardware and software are patentable provided that
they are inseparable (firmware) or if the hardware  has been modified, for example, either within or
outside a processor.
(c) process inventions that facilitate the conduct of business;
No, because they are not considered inventions pursuant to Article 15 of Decision 486.
(d) isolated or purified forms of materials found in nature;
No, because they do not constitute inventions in accordance with Article 15 of Decision 486.
(e) matter related to or intended for use in the human body, including matter
relating to the genetic identity of a human.
No, because they are not patentable pursuant to Article 15 of Decision 486.
If any of these types of invention are excluded from patentable subject matter, please explain
how Colombian law complies with the obligations of the first paragraph of Article 27 of theTRIPS Agreement that all categories of inventions are patentable subject matter.
- Computer programs
As inventions are not defined in the TRI PS Agreement and computer programs are not
inventions but literary works under the Andean Community's legal system, they are protected under
copyright.
- Process inventions that facilitate the conduct of businessAs inventions are not defined in the TRIPS Agreement, and procedures that facilitate the
conduct of business do not come within the field of  technology, under the Andean Community's legal
system, they are not considered inventions, and are not protected under patents.  This provision is in
conformity with Article 27 of the TRIPS Agreement.
- Isolated or purified forms of materials found in nature
Bearing in mind that materials found in nature constitute mere discoveries and that human
intellect and intelligence are not in volved in their development and creation, and also that Article 27
                                                     
43 Article 4(l), Decision 351 of the Commission of the Cartagena Agreement; Article 2, Law No. 23 of
1982;  Article 1, Decree No.1360 of 1989.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 68
of the TRIPS Agreement provides that patents should be available for "any inventions, whether
products or processes, … provided that they are new, involve an inventive step and are capable of
industrial application", it can be seen that the non-patentability of these materials is in conformitywith the TRIPS Agreement because they do not meet the requirements of novelty and inventive stepand, above all, constitute mere discoveries, which are not defined as inventions in the TRIPS
Agreement and may not be protected by patents.
- Matter related to or intended for use in the human body including matter relating to
the genetic identity of a human
Bearing in mind that materials found in nature constitute mere discoveries and that these
include the materials within the human body, they cannot constitute inventions because human
intellect and intelligence are not in volved in their creation and they do not meet the requirements of
novelty and an inventive step.  This exclusion is therefore in conformity with the TRIPS Agreement,
which does not define discoveries as inventions and requires compliance with the aforementioned
requirements for these materials to be patentable.
If material from the human body is modified, however, the product is the result of man's
creativeness and so meets the requirements of novelty, inventive step and industrial application and
becomes patentable.  The only obstacle to patenting these products would be that they were contrary
to the provisions in Article 27.2 of the TRIPS Agreement on the protection of public order ormorality, human, animal or plant life or health and avoiding serious prejudice to the environment.
In the case of materials for use in the human body, for example, drugs or artificial limbs,
provided that they meet the requirements of novelty , inventive step and industrial application, they are
patentable.
13. Animal species and varieties are expressly excluded under Article 7(c) of Decision 344.
Plant varieties are not excluded nor are micro-organisms mentioned in Decision 344.  Please
indicate whether the inventor of a micro-organism that is new, involves an inventive step and is
industrially applicable may receive a patent for that micro-organism in Colombia.
Plant varieties
44 are protected through breeders’ certificates, which is consistent with
Article 27.3(b) of the TRIPS Agreement.
Micro-organisms that are the result of man's creativeness, in other words they are the result of
modifications and thus involve novelty and an inventive step, are patentable.
14. Article 7(a) and (b) of Decision 344 exclude s from patentable subject-matter "inventions
contrary to public policy, morality, or proper practice" and "inventions that are clearly
prejudicial to human health or life ..." Article 27.2 of the TRIPS Agreement authorizes
exclusion from patentability on the basis of ordre public  o nly i f i t is  nece ssa ry to  proh ibi t th e
commercialization of the invention, but not merely because exploitation is prohibited by law.Please describe in detail how Colombia implements Articles 7(a) and (b) of Decision 344,
including what criteria are used to determine what is "necessary".
An invention whose exploitation is prohibited by domestic legislation is not excluded from
patentability for this reason.  It is excluded from patentability if its exploitation may have a negative
                                                     
44 Article 4, Decision 345, of the Commission of the Cartagena Agreement, "The Member Countries
shall grant breeders’ certificates to persons who have creat ed plant varieties, in so far as the varieties are new,
uniform, distinct and stable, and if they have been given a denomination that constitutes their genericdesignation (…)."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 69
effect on public order or morality, human, animal or plant life or health or the environment to the
extent that, in order to protect these effectively, the patentability must be refused.  Consequently, if
the exploitation of an invention is prohibited by domestic legislation but it does not have any negative
effect on public order or morality, human, animal or plant life or health or the environment, it wouldbe patentable.
This is consistent with Article 20 of Deci sion 486, which states that the following are not
patentable:
"(a) Inventions whose commercial exploitation in the territory of the respective Member
Country must necessarily be prevented in order to protect public order or morality.For this purpose, commercial exploitation of an invention shall not be considered
contrary to public order or morality merely because there is a legal or administrative
provision which prohibits or regulates such exploitation.
(b) Inventions whose commercial exploitation in the respective Member Country  must
necessarily be prevented in order to protect human, animal or plant life or health or
the environment.  For this purpose, commercial exploitation of an invention shall not
be considered prejudicial to human, animal or plant life or health or the environment
merely because there is a legal or administrative provision which prohibits or
regulates such exploitation."
15. Article 7(e) of Decision 344 appears to excl ude as patentable subject matter inventions
related to pharmaceutical products shown on th e list of essential drugs of the World Health
Organization.  Please explain how Colombia has implemented this provision in a manner
consistent with the prohibition in Article 27 of the TRIPS Agreement against discriminationbased upon the area of technology.
Decision 486 does not mention the exclusion referred to in the question.
16. Article 16 of Decision 344 provides that prev iously patented products may not be the
subject of a new patent simply because of a use different from that described in the original
patent.  Please indicate whether a new use of an existing product may be patented in Colombiaif the new use is novel, involves an inventive step and is industrially applicable.
Article 14 of Decision 486  provides the following:
"The Member Countries shall grant patents for inventions, whether goods or processes, in all
areas of technology that are new, involve an inventive step and are industrially applicable."
Follow-up question
Article 16 of Decision 344 appears to have prohibited the grant of patents for inventions
that claim a new use of a previously patented product.  Article 21 of Decision 486 appears to
have continued this prohibition.  Please explain whether and how an invention involving the
innovative use of a previously patented product to solve a problem different from that for which
the product was originally developed may be patented if that use is new, involves an inventive
step, and has industrial applicability.
This question covers two different issues.
Firstly, is there any change in Decision 486 in comparison with Article 16 of Decision 344?
The answer to this is no, thus this rule has not been modified.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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Regarding the second issue, namely, whether Colombia grants new use patents, our
interpretation is that the subject matter patentable in accordance with Article 27 of the TRIPS
Agreement is that which, in addition to meeting the criteria for inventions, corresponds specifically toa product or process.  Products or processes already patented cannot therefore be the subject of a new
patent because they are put to a new use.
Along the same lines, Colombia’s multilateral commitment, as well as that of the other
Members of the WTO, applies solely to products and processes and there is no mention of use.  For
Colombia, therefore, there is no regulatory provision whatsoever that obliges us to give a product or
process another patent because it is put to a new use.
Notwithstanding the foregoing, it should be noted that Article 21 of Decision 486 (which in
this regard is substantially the same as the former provision in Decision 344) has given rise to other
interpretations and a ruling by the Andean Court of  Justice regarding the scope of this provision is
pending.
Statement made by the representative of the United States at the Meeting of the Council
It appears that the delegate draws a distinction between products and processes, but this
distinction is not clear to us.  We shall await the written answers to be furnished by Colombiawithin the next few days.
With regard to Article 27.1 of the TRIPS Agreement, which we are discussing, we know
that the only criteria for patentability are novelty, an inventive step and industrial applicability.
17. The translation of Article 35 of Decision 344 states that patent owners have the right to
prevent others from "working" the patented inve ntion without authorization.  Please explain
what acts, enumerated in Article 28 of the TRIPS Agreement, can serve as the basis for an
action of infringement by the patent holder.
The provisions in Article 52 of Decision 486 allow the owner of a patent to bring proceedings
for infringement based on any of the acts indicated in subparagraphs (a) and (b) of Article 28.1 of theTRIPS Agreement, except in the case of import of a patented product that has been put on sale in any
country, with the consent of the owner, a licensee or any other person authorized by the right holder
45;
use must be in a private circle and for non-commercial purposes46;  the act must not be for profit-
making purposes and must be at the experimental, academic or scientific level47;  or one of "the acts
referred to in Article 5 ter of the Paris Convention for the Protection of Industrial Property"48, and the
patent must protect "biological material that is capable of being reproduced, except for plants," and be
used "as a basis for obtaining a viable new material, except where the patent material must be used
repeatedly to obtain the new material"49.
18. Please describe in detail any limited exceptions to patent rights that exist under
Colombia’s laws and indicate what safeguards are used to ensure that such limited exceptions
do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably
prejudice the legitimate interests of the pate nt owner, taking into account the legitimate
interests of third parties.
                                                     
45 Article 54 of Decision 486, in conformity with Article 6 of the TRIPS Agreement.
46 Article 53(a) of Decision 486.
47 Article 53(b) and (c) of Decision 486.
48 Article 53(d) of Decision 486.
49 Article 53(e) of Decision 486.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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In addition to the indications in the preceding reply, Article 55 of Decision 486 states that the
rights conferred by a patent may not be asserted against a third party that, in good faith and before the
priority date or the filing date of the application on which the patent was granted, was already usingthe invention in a private circle or had made effective and serious preparations for such use, in which
case the third party shall have the right to start or continue manufacturing the product or using the
process, as appropriate, in any Member Country.
19. Please describe how Colombia has implemented Article 14 of Decision 344 (that states
that, if a right of priority is claimed, a patent application must be accompanied by a copy of the
first patent application filed) to ensure that the applicant has up to three months to file thecertified copy as provided for in Article 4(D) (3) of the Paris Convention, incorporated by
Article 2.1 of the TRIPS Agreement.
Article 9 of Decision 486 states the following:
"The first application for an invention or utility model patent or for the registration of an
industrial design or a trademark that is validly filed in another Member Country or with a
national, regional, or international authority to which the Member Country is linked by a
treaty establishing an analogous right of priority to that established in this Decision, shall
confer on the applicant or the applicant’s assignee the right of priority in filing for a patent orregistration on the same subject matter in the Member Country. (…)
In order to qualify for that right, an application claiming priority shall be filed within the
following non-renewable periods to be counted as from the filing date of the application
whose priority is claimed:
(a) Twelve months for patents on inventions and utility models;  and
(b) six months for registrations of industrial designs and trademarks."
Moreover, Article 10 of the Decision provides that the declaration and relevant documents
must be submitted together with or separately from the application at the latest within the following
non-renewable periods calculated from the date of filing of the application whose priority is claimed:
(a) For applications for patents or utility models:  16 months;
(b) for applications for the registration of industrial designs or trademarks;  nine months;
20. Article 37 of Decision 344 appears to require that each patented invention must be
"worked" in a Member Country of the Andean Community.  Please describe the manner in
which the Government of Colombia implements this provision to ensure that its obligations
under Article 4 and Article 27.1 of the TRIPS Agreement are fulfilled.
Article 59 of Decision 486, like Article 37 of Decision 344, provides that:
"Owners of patents shall be under the obligation to exploit their patented inventions in any
Member Country, either directly or through a person they authorize to do so."
The provision in Article 37 of Decision 486 thus extends to all countries of the Andean
Community, irrespective of the nationality of the owner of the patent, as owners are given the
opportunity to work the invention in any of the countries composing the Customs Union.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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It is therefore clear that this provision is not relevant to the provisions in Articles 4 and 27.1
of the TRIPS Agreement.  The most-favoured-nation treatment provided in Article 4 refers to
advantages, favours, privileges or immunities granted by a Member to the nationals of another
country, and this is not the situation with the provision in Article 59, which is confined to establishinga prerogative available to any owners of patents granted in Colombia.
Regarding Article 27.1, the obligation to work the patent established in Decision 486 is not
relevant either because, irrespective of the place of invention, if it is patented in Colombia, all the
obligations imposed for the conservation and exer cise of rights laid down in the corresponding
Community regulations must be observed, which is consistent with the TRIPS provisions.  In this
respect, the owner enjoys rights in a patent after it has been granted irrespective of the place where theinvention was made.  The possibility of proving use in any Andean country does not constitute any
form of discrimination against the owner but on the contrary is a general benefit available to all
owners of patent rights.
21. Articles 42 through 45 of Decision 344 authorize compulsory licences to remedy
insufficient working, for national emergency a nd national security interests.  Article 46
authorizes compulsory licences for anti-competitive behaviour and Article 48 provides for
compulsory licences to permit use of a dependent patent.  Please describe in detail the manner
in which Colombia ensures that each of the conditions established for compulsory licences is
met in connection with each form of compulsory licence.
Compulsory licences for reasons of public interest, emergency or national security
Article 6550 of Decision 486 authorizes compulsory licensing for reasons of public interest,
emergency or national security.
The prior requirement for the granting of such licences is a declaration by the Government of
the country that there are reasons of public interest, emergency or national security.  When applying
to the competent national office for the grant of the corresponding licences, the reasons which led to
the declaration in question must still exist and, in addition, the owner of the patent must be notified as
soon as possible.
Pursuant to these provisions, in Colombia's case, in order to obtain a compulsory licence,
either the national, provincial or municipal authorit ies, as appropriate, must declare that there are
reasons of public interest, emergency or national security, as required by the Political Constitution and
the law.  When filing an application with the competent national office, the reasons which give rise to
the corresponding application must still exist.
                                                     
50 Article 65, Decision 486 of the Commission of the Cartagena Agreement:  "Following the
declaration by a Member Country of the existence of public interest, an emergency, or national securityconsiderations, and only for as long as those consider ations exist, the patent may be subject to compulsory
licensing at any time. In that case, the competent national office shall grant the licences requested. The owner ofthe patent so licensed shall be notified as soon as is reasonably possible.
The competent national office shall specify the scope or extent of the compulsory licence and, in
particular, the term for which it is granted, the subject matter of the licence, and the amount of remuneration andthe conditions for its payment.
The grant of a compulsory licence for reasons of public interest shall not impair the right of the patent
owner to continue exploiting it."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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Compulsory licences as a result of practices affecting free competition
Decision 48651 authorizes the granting of compulsory licences when there are practices which
affect free competition and, in particular, constitute an abuse of a dominant market position by theowner of the patent, subject to the consent of the national anti-trust authority, which in Colombia's
case is the Supervisory Authority for Industry and Trade, pursuant to Decree No.2153 of 1992.
From the above it can be seen that an administrative act by the competent official in the
Supervisory Authority for Industry and Trade establishing the existence of a practice that affects free
competition is a necessary prerequisite for granting such licences.
Compulsory licences to permit the use of a patent whose exploitation necessarily requires the use of
another patent
Decision 48652 authorizes a compulsory licence for patents whose exploitation necessarily
depends on the exploitation of another patent, laying down three criteria:
- Exploitation of the dependent patent necessarily requires the use of the patent for
which a compulsory licence is being sought;
- the invention claimed in the dependent patent involves an important technical
advance in relation to the invention clai med in the patent for which a compulsory
licence is being sought;
- the owner of the dependent patent proves that he has been unable to obtain a
contractual licence on reasonable terms.
The first two criteria must be verified by the competent national office and the third requires
proof from the licence applicant before the corresponding licence can be granted.
In addition, in accordance with Article 31 of the TRIPS Agreement, and Decision 486,
licences are subject to the following requirements:
                                                     
51 Article 66, Decision 486, of the Commission of the Cartagena Agreement:  "The competent national
office may, either ex officio or at the request of a party and after having obtained the consent of the nationalanti-trust authority, grant compulsory licences where prac tices are noted that are detrimental to the exercise of
free competition, especially where they constitute an abuse by the patent owner of a dominant position in the
market.
The need to correct anti-competitive practices shall be taken into account in determining the amount of
remuneration to be paid in such cases.
The competent national office shall refuse termination of a compulsory licence if and when the
conditions which led to the granting of a licence are likely to recur."
52 Article 67, Decision 486, of the Commission of the Cartagena Agreement:  "The competent national
office shall grant a licence, upon request by the owner of the patent whose exploitation necessarily requires theuse of another patent provided that the right holder has been unable to secure a contractual licence for the other
patent on reasonable commercial terms.  That licence shall, without prejudice to the provisions of Article 68, besubject to the following conditions:
(a) The invention claimed in the second patent shall involve an important technical advance of
considerable economic significan ce in relation to the invention claimed in the first patent;
(b) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the
invention claimed in the second patent;  and
(c) the licence authorized in respect of the first patent may not be assigned without the assignment
of the second patent."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 74
- The owner of the first patent shall have the right to a cross-licence on reasonable
terms in order to exploit the invention claimed in the second patent;
- the licence for the first patent may not be assigned without the assignment of the
second patent.
22. Please indicate how many compulsory licences have been granted in each of the last five
years.
To date, Colombia has not granted any compulsory licences.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
23. Please describe how Colombia implements the obligations of Section 6, Part II of the
TRIPS Agreement and cite the relevant provisions of law.
Decision 486 includes a chapter regulating layout-designs of integrated circuits.  These are
protected as a new industrial property right, in the same way as the protection provided under the
TRIPS Agreement, determining as a requirement for registration that they must be original53, in other
words, they are the result of their creator’s inte llectual effort and are not in common use in the
integrated circuit industry.
Decision 486 also lays down the requirements fo r applications to register layout-designs of
integrated circuits, giving interested parties the opportunity to lodge objections.54  It is specified that
the term of the exclusive right in a layout-design shall be 10 years from the earliest of the following
dates:  (a) the last day of the year in which the layout-design was first commercially exploited
anywhere in the world;  or (b) the filing date of an application for registration with the competent
national office in the Member Country concerned.  Without prejudice to the foregoing, it is provided
that protection of a layout-design shall in any event lapse at the expiry of 15 years as of the last day ofthe year in which it was created
55, which is in accordance with Article 38 of the TRIPS Agreement.
Decision 486 also regulates the rights conferred by registration of a layout-design, including
the right to prevent third parties from reproducing all or part of the design, marketing, importing,
offering for sale, selling or otherwise distributing the layout-design or the integrated circuits
incorporating it, or marketing, importing, offering for sale, selling or otherwise distributing articles
incorporating the protected layout-design.56  Lastly, with regard to compulsory licences for layout-
designs, the competent national authority may grant licences at the request of a party or ex officio
provided that this is justified by lack of exploitation, public interest, national emergency, public
health, national security or to remedy anti-competitive practices, and the conditions laid down for
compulsory licences for patents indicated in the reply to question 21 above apply.57
                                                     
53 Article 87, Decision 486, of the Commission of the Cartagena Agreement:  "A layout-design shall be
protected if it is an original design.
A layout-design shall be considered original when it is the result of its creator’s intellectual efforts and
is not in common use in the integrated circuit industry.
Where composed of two or more elements in common use in the integrated circuit industry, a layout-
design shall be considered original only if the co mbination of these elements, as a whole, meets this
requirement."
54 Article 89, Decision 486, of the Commission of the Cartagena Agreement.
55 Article 98, Decision 486, of the Commission of the Cartagena Agreement.
56 Article 99, Decision 486, of the Commission of the Cartagena Agreement.
57 Article 107, Decision 486 of the Commission of the Cartagena Agreement:
"The competent national authority may, given a lack of exploitation or for reasons of public interest, in
particular a national emergency, or for public health or national security considerations or to remedy an anti-IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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H. PROTECTION OF UNDISCLOSED INFORMATION
24. The last paragraph of Article 72 of Decision 344 defines "industrial secrets" as including
only the nature of products, methods of production, or means of distribution.  Please describe indetail how this definition encompasses all of the undisclosed information as defined in
Article 39.2 of the TRIPS Agreement.
Article 260
58 of Decision 486 states that:
"The information constituting a business secret may be related to the nature, characteristics or
purpose of the products, production methods or processes or the means or forms ofdistribution or marketing of goods or rendering of services."
25. Please describe in detail the measures that can be taken by judicial authorities in
Colombia to protect the confidentiality of undisclosed information furnished by a party to the
court during legal proceedings, as required by Article 42 of the TRIPS Agreement, when theinformation has been provided either to enfor ce rights in such information, or for other
purposes.
Article 260 of Decision 486 identifies undisclosed information in so far as it determines the
essential elements of such information and also provides that any person who has lawful control of anindustrial or business secret shall be protected against its disclosure, acquisition or use without his
consent by third parties in any way that is contrary to fair trade practices.
Furthermore, Article 261 of Decision 486 states that information provided to any authority by
any person in possession of it for the purpose of obtaining permits, licences, authorizations,registration or any other legal acts shall not be considered as within the public domain, thereby
imposing on the relevant authority an obligation to keep this information secret.
From the standpoint of positive law, there are rules which define information that is not
confidential and is available to the public.
59  Article 61 of the Commercial Code also states that
                                                                                                                                                                    
competitive practice and at the request of an interested party or of a competent authority order the following at
any time:
(a) That layout-designs that are registered or for which registration has been filed shall be used or
exploited industrially or commercially by a government institution or by one or more public orprivate legal entities that have been expressly appointed to do so;  or
(b) that the said layout-design shall be subject to the granting of one or more compulsory licences,
in which case the competent authority may grant a licence to any person who applies for it,subject to the conditions stipulated for that purpose.
The conditions that have been stipulated for granting compulsory licences with respect to patents for
inventions shall be applicable to the granting of compulsory licences in respect of layout-designs."
58 Article 260, Decision 486 of the Commission of the Cartagena Agreement:  "A business secret shall
be considered to be any undisclosed information within the lawful control of a natural person or legal entity that
may be used for a production, industrial or commercial activity and that is capable of being transmitted to a thirdparty as long as that information:
(a) Is secret in the sense that it is not, as a body or in the precise configuration and assembly of its
components, generally known among or readily accessible to persons within the circles thatnormally deal with the kind of information in question;
(b) has commercial value because it is secret;  and
(c) has been the subject of reasonable steps by the person lawfully in control of the information to
keep it secret.
59 For example, records and archives in the commercial register, pursuant to Article 26 of the
Commercial Code.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 76
business records and documents may not be examined by persons other than their owners or persons
authorized by the latter, unless the competent authority orders otherwise.
Article 74 of the Political Constitution restricts access to documents deemed to be
confidential.  In implementation of this constitutional principle, Article 29 of the Code of
Administrative Litigation provides that a separate section must be opened in files that contain
documents with confidential information.
The law also establishes systems to protect confidential information by prohibiting its
disclosure and providing mechanisms to repress any action that jeopardizes the right to keep such
information confidential.  Article 16 of  Law N o. 256 of 1992, for example, prohibits the "disclosure
or exploitation, without authorization of the owner, of industrial secrets or any other type of business
secret to which access has been lawfully given subject to an undertaking to maintain confidentiality";
pursuant to Article 38 of  Law No. 200 of 1995, failure to fulfil one's duty, abusing or exceeding
rights or functions or committing prohibited acts on the part of public officials constitute breaches of
discipline that lead to the imposition of the corresponding penalties.
Lastly, Article 238 of the Criminal Code specifies that the unlawful disclosure of confidential
information constitutes an offence and is punishable by a term of imprisonment and a fine.  This is
also the case in Article 308 of  Law No. 599 of 199960, which states that any person who "uses,
reveals or discloses a discovery, a scientific invention, an industrial or commercial process orapplication, known to him by reason of his functions, position or profession and which should remain
confidential shall be liable to a term of imprisonmen t of two (2) to five (5) years and a fine of twenty
to two thousand (2,000) minimum prevailing legal monthly wages".  The same penalty applies to any
person who "unlawfully has knowledge of, copies or obtains a secret related to a discovery, scientific
invention, industrial or commercial process or application".
26. In light of the exception provided in the second paragraph of Article 79 of Decision 344,
please explain in detail how Colombia protects against unfair commercial use test and other
data submitted to obtain marketing approval for pharmaceuticals and agricultural chemicals
and cite the relevant provisions of law.
Decision 486 abolishes the provision in Article 79 of Decision 344.  Article 263 provides that
"Protection of a business secret shall last as long as the conditions set out in Article 260 exist."
27. Please explain in detail how Colombia protects against disclosure test and other data
submitted to obtain marketing approval for pharmaceuticals and agricultural chemicals and
cite the relevant provisions of law.
Article 260 of Decision 486 defines the criteria for business secrets and Article 262 provides
that:  "Persons shall have the possibility of preven ting a business secret lawfully within their control
from being disclosed to, acquired by or used by third parties in a manner contrary to fair trade
practices", and that unfair competition consists, inter alia , of "using, without the authorization of the
person lawfully in control of that information, a business secret to which the third party had access
under a confidentiality obligation resulting from a contractual or labour trade practice;".  This Article
also provides that a business secret shall be considered to have been acquired by means contrary to
fair trade practices where the acquisition is the result, inter alia , of breach of contract or other
obligations, breach of trust, breach of a duty of se crecy or inducement to carry out any of these acts.
                                                     
60 Law No. 599 of 2000, containing Colombia's new Criminal Code, will enter into force on
24 July 2001.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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From the standpoint of positive law, there are rules which define information that is not
confidential and is available to the public61.  In the same way, Article 61 of the Commercial Code also
states that business records and papers may not be examined by persons other than their owners or
persons authorized by the latter, unless the competent authority orders otherwise.
Article 7462 of the Political Constitution restricts access to documents deemed to be
confidential.  In implementation of this constitutional principle, Article 29 of the Code of
Administrative Litigation provides that a separate section must be opened in files that contain
documents with confidential information.
The law also establishes mechanisms to protect confidential information by prohibiting its
disclosure and providing mechanisms to repress any action that jeopardizes the right to keep such
information confidential.  Article 16 of  Law N o. 256 of 1992, for example, prohibits the "disclosure
or exploitation, without authorization of the owner, of industrial secrets or any other type of business
secret to which access has been lawfully given subj ect o an undertaking to maintain confidentiality";
pursuant to Article 38 of  Law No. 200 of 1995,  failure to fulfil one’s duty, abusing or exceedingrights or functions or committing prohibited acts on the part of public officials constitute breaches of
discipline that lead to the imposition of the corresponding penalties.
Lastly, as mentioned above, Article 238 of the Criminal Code specifies that the unlawful
disclosure of confidential information known to a person inter alia  by reason of his position
constitutes an offence punishable by a term of imprisonment and a fine.  The same provisions can be
found in Article 308
63 of the new Criminal Code.
I. ENFORCEMENT
28. Please describe in detail what civil actions and what civil remedies are available under
Colombia’s laws to right holders of each kind of intellectual property covered by Part II of the
TRIPS Agreement, including plant variety protectio n, that permit effective action against any
act of infringement to prevent infringement and deter further infringement, and cite the
provisions of law providing for these remedies.
Decision 486 of the Commission of the Cartagena Agreement provides for the following
actions to protect industrial property rights:
Claims
Article 237 of Decision 486 states that:
"Where patents or registration of industrial designs have been applied for or obtained by
persons with no right to those patents or registrations or to the detriment of other parties also
possessing that right, the parties affected may claim those rights from the competent national
                                                     
61 For example, records and archives in the commercial register, pursuant to Article 26 of the
Commercial Code.
62 Article 74, Political Constitution:  "Any person shall have the right to access to public documents,
except in the cases specified in the law".
63 Violation of an industrial or business secret.  Any person who uses, reveals or discloses a discovery,
a scientific invention, an industrial or commercial pr ocess or application known to him by reason of his
functions, position or profession and which should remain confidential shall be liable to a term of imprisonment
of two (2) to five (5) years and a fine of twenty (20) to two thousand (2,000) minimum prevailing legal monthlywages.
The same penalty shall apply to any person who unlawfully obtains knowledge of, copies or obtains
secrets related to a discovery, scientific inventio n, industrial or commercial process or application.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 78
authority and request the transfer to them of the applications being processed or the rights
granted, or their recognition as co-applicants or co-owners of the rights.
Where trademark registrations have been applied for or obtained to the detriment of other
parties with the same rights, the parties affected may make claims to such rights with the
competent national authority by requesting their recognition as co-applicants or co-owners of
the rights in question.
Should the domestic legislation of the Member Country so permit, compensation for damages
may be requested in the same claim. (…)"
Action for infringement of rights
Article 238 of Decision 486 establishes that the owner of a right protected under the Decision
"may bring action before the competent national authority against any persons infringing their right"
or "performing acts that show that an infringement is likely to occur".
Action for compensation for damages
Article 239 of Decision 486 provides that the owner of a patent may take legal action for
damages "resulting from unauthorized use of the invention or utility model between the period whenit became public knowledge and the respective application was opened for consultation and the date
of granting the patent".
Unfair competition
Article 259 of Decision 486 provides an illustrative list of acts which constitute intellectual-
property-linked unfair trade practices, which can be used as grounds for initiating the corresponding
action.  These include:
- Any act capable of causing confusion, by any means whatsoever, with respect to the
business, goods or industrial or commercial activity of a competitor;
- false affirmations made in the course of trade that are capable of discrediting a
competitor’s business, goods or industrial or commercial activity;
- indications or affirmations whose use in the course of trade may mislead the public
with regard to the nature, method of manufacture, characteristics, usefulness orquantity of the goods in question.
Domestic legislation allows the following action to protect industrial property rights:
Unfair competition
As the infringement of industrial property rights may involve acts that cause confusion64, are
misleading65 and/or exploit another person’s reputation66, which constitute unfair competition
pursuant to Law No. 256 of 1996, they may be punished through the corresponding action provided in
the aforementioned Law.
                                                     
64 Article 10, Law No.256 of 1996.
65 Article 11, Law No.256 of 1996.
66 Article 15, Law No.256 of 1996.IP/Q/COL/1, IP/Q2/COL/1,
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Article 20 of  Law No. 256 of 1996 regulates action that may be initiated (before the
competent judges67 or the Supervisory Authority for Industry and Trade, as provided in Articles 143
and 144 of Law No. 446 of 1998) if there has been unfair competition.  The action may be of two
types:  firstly, upholding the complaint and punishing the offence, seeking a legal ruling that the acts
carried out are unlawful and a subsequent order that the infringer cease the infringement and
compensate for the damages caused, and secondly preventive action or prohibition requesting a judge
to prevent the commission of an unfair trade act that has not yet taken place or to prohibit it even
though it has not yet caused any damage.
In addition, when lodging a complaint for unfair competition or prior to this, the owner of the
industrial property rights may request the competent judge or the Supervisory Authority for Industryand Trade to order that precautionary measures
68 be taken immediately (they may be ordered within
24 hours following the lodging of the complaint) if there is a serious and imminent danger.  Without
prejudice to the aforementioned precautionary measures to be taken as a priority, precautionary
measures may be requested following the normal procedure in order to obtain the provisional
cessation of the act of unfair competition inter alia .
Prohibited use of a mark, logo, trade name or commercial sign
Under the terms of Articles 607 and 609 of the Commercial Code, a party injured by the use
of a mark, logo, trade name or commercial sign ma y apply to circuit judges dealing with civil matters
to prevent such use and claim the corresponding damages in an action which, if successful, entails the
relevant prohibition of use and an order to pay damages.
Proceedings on other grounds of unfair competition relating to industrial property assets
Pursuant to Article 17 of the Code of Civil Procedure, specialized circuit judges dealing with
civil matters69 have the authority at the first instance to hear proceedings concerning "patents,
industrial designs, trademarks, trade signs and names and other industrial property matters" not
attributed to the administrative authorities or subject to administrative litigation jurisdiction and not
connected with any acts of unfair competition specially regulated by  Law No. 256 of 1996.
Action for damages
Article 571 of the Commercial Code provides th at the owner or licensee of a patent, utility
model, industrial design, trademark, logo, trade name or sign may take action for damages resulting
from the unauthorized use of such industrial property assets without the need to request the
corresponding precautionary measures or in cases where such measures have been refused.
                                                     
67 Article 17 of the Code of Civil Procedure provides that expert circuit judges dealing with civil
matters are competent to hear proceed ings concerning "patents, industrial designs, trademarks, trade signs and
names and other industrial property matters" at the first level if they are not dealt with by the administrativeauthorities or administrative litigation courts, and the precautionary measures specified in Articles 678, 681, 682
and 690 of the Code of Civil Procedure may be requested in order to prevent the infringement of rights fromcontinuing.
68 Article 31, Law No.256 of 1996.
69 It should be noted that the relevant authority has not appointed specialized circuit judges dealing with
civil matters, therefore, the competence given to them is exercised by ordinary circuit judges dealing with civil
matters (Supreme Court of Justice, Civil Annulment, Order of 25 June 1992.  Reporting judge:  Eduardo GarcíaSarmiento).IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
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Precautionary measures
Pursuant to Articles 568, 581 and 597 of the Commercial Code, the owner or licensee of a
patent, utility model, industrial design, trademark, logo, trade name or sign may request the competent
judge to take the necessary precautionary measures to protect their industrial property rights, provided
that the latter have been used without authorization or disregarded.
29. Please state whether decisions on the merit in court proceedings are provided in writing
and if those written opinions are available to the public so that people can become familiar with
the law.
With the exception of records (which do not cover industrial-property-related proceedings) in
which the decision may consist of a recording70, all judgements in other proceedings are given in
writing, as can be seen from Article 304 of the Code of Civil Procedure.
In addition, Article 74 of the Political Constitution states that "Any person shall have the right
to access to public documents71, except in the cases specified in the law", therefore, verdicts by
judges, inasmuch as they are public documents, are available to any person.
30. Please describe what civil provisional measures are available to right holders under
Colombia’s laws, describe the procedures that mu st be followed and cite the relevant provisions
of law.
Precautionary measures may be requested and ordered in the following proceedings:
- Prior to initiation of action for infringement or for compensation for damages covered
by Decision 486, either together with the action or subsequent to its initiation.
- In the course of proceedings for precautionary measures covered by Article 568 of the
Commercial Code, the owner of an industrial property right may request the judge to
take the relevant precautionary measures to prevent his rights being infringed.
- Together with submission of a complaint of unfair competition covered by  Law No.
256 of 1996 or prior to the complaint if there is a serious and imminent danger.
- In the course of industrial property rights  proceedings brought before the competent
judges and provided that they do not relate to acts of unfair competition, the
complainant may request that precautionary measures be ordered to prevent injury orto ensure that it does not continue.
The precautionary measures that may be ordered pursuant to Article 246 of Decision 486 may
be inter alia :  the immediate cessation of all acts constituting the alleged infringement;  withdrawal
from commercial channels of all products resulting from the alleged infringement, includingcontainers, packaging, labels, printed material or advertising, or other materials, together with the
materials and tools predominantly used to comm it the infringement;  suspension of the import or
export of the goods or materials or tools referred to under the previous paragraph;  establishment by
the alleged infringer of an adequate guarantee;  and temporary closure of the business belonging to the
defendant or accused, if necessary, to avoid continuation or repetition of the alleged infringement.
                                                     
70 Article 432, Code of Civil Procedure.
71 Article 251, Code of Civil Procedure:  "… a public document is a document drawn up by a public
official in exercise of his functions or with his involvement."IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 81
Article 568 of the Commercial Code indicates that precautionary measures may involve
requiring infringers to provide security as a guarantee that they will not carry out the acts alleged
against them, the seizure of the articles manufactured in violation of the industrial property right and
prohibiting their advertising, the attachment of machinery or materials used to manufacture the
articles infringing the industrial property right or any other equivalent measures.  The precautionary
measures provided in Articles 678, 681, 682 and 690 of the Code of Civil Procedure include seizure
and attachment of goods, whether or not subject to registration;  recording of the complaint and
seizure and attachment of funds, inter alia .
Because there is no exhaustive list of the precautionary measures that may be requested in the
course of civil proceedings, requests may be made for the imposition of precautionary measures thatare not specifically provided in the civil legislation but are not excluded either.  These include the
following:
Seizure
72 of the implements and tools used to commit a fraudulent punishable act or that
result from its commission and are not freely on sale, which must be handed over to the StateProsecuting Authority or the body it designates, unless the law orders their destruction, pursuant to
Article 338 of the Code of Criminal Procedure.
Confiscation of substances, appliances and other objects intended for the performance of acts
connected with indications of goods with distinctive marks that are misleading in respect of theirorigin or content
73, in accordance with Article 4374 of Decree No.1355 of 1970 and Article 42, which
provide that, if the act is performed by traders personally or through the action of persons in
establishments owned by them, the closure of the establishment concerned for up to six months shall
be ordered.
31. Please state whether judicial authorities have authority to adopt provisional measures
inaudita altera parte , as required under Article 50.2 of the TRIPS Agreement, and under what
circumstances that authority will be invoked.
Article 248 of Decision 486 states that "Where a provisional measure has been adopted
inaudita altera parte, the party affected shall be given notice without delay after the execution of the
measures", therefore provisional measures can  be taken without hearing the opposing party.
Article 247 of Decision 486 regulates the admissibility of requests for precautionary
measures, indicating that they can only be ordered when the persons requesting them prove "their
lawful right to act, the existence of the infringed right, and provide evidence allowing for a reasonable
presumption of infringement or imminent infringe ment".  The competent authority may also require
that persons requesting the measure deposit a sufficient bond or security before it is ordered.
Moreover, this Article requires any person requesting a precautionary measure in respect of particular
goods to supply the necessary information and a sufficiently detailed and precise description of the
allegedly infringing goods to allow them to be identified.
                                                     
72 Article 67 of the Code of Criminal Procedure, Law No.600 of 2000;  Article 100 of the Criminal
Code, Law No. 599 of 2000.
73 The aforementioned conduct constitutes a speci al violation affecting the national economy, as
provided in Article 41 of Decree No. 522 of 1971.
74 Article 194 of Decree No. 1355 of 1970 states with respect to confiscated goods that their sale by
public auction or handing over to a public welfare institution must be ordered, unless they belong to a third partynot involved in the facts constituting the offence, in wh ich case they must be handed over to that party.  The
same Article provides that, in the case of beverages, foodstuffs and provisions in general that are in badcondition, they must be destroyed by the police in the presence of their owner.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 82
In addition, as indicated in the replies to questions 28 and 30 above respectively, in cases of
unfair competition immediate precautionary measures may be taken (24 hours) subject to proof of the
existence of a serious imminent danger and payment of the security fixed by the competent judge or
official in order to offset any prejudice that may be caused to the presumed infringer or to thirdparties.  In such cases, Article 31 of  Law No. 256 of 1996 states that the measures may be taken
without hearing the opposing party.
Without prejudice to the foregoing, it should be indicated that Article 327 of the Code of Civil
Procedure states that "Precautionary measures shall be implemented immediately, prior to notification
to the opposing party of the order under which they are imposed.  If they were imposed prior to the
proceedings, the party concerned shall be notified on the day on which he/she appears in theproceedings or acts in them or signs the appropriate submission", therefore, precautionary measures
must always without exception be imposed prior to the notification to the opposing party.
32. Please describe in detail the procedures under Colombia’s law, at least with respect to
counterfeit trademarked goods and pirated copyrighted works, that allow right holders torequest customs authorities not to release good s into free circulation and cite the relevant
provisions of law.  Please indicate if the customs authorities have ex officio  authority to take
such action.
Decree No.2685 of 1999 (Customs Statute) cove rs the seizure and confiscation of goods,
imported, exported or in transit when they do not correspond to or exceed the volume of the goods
listed in the relevant documents, have entered or  left the country illegally or are being hidden,
inter alia .
Without prejudice to the foregoing, the aforementioned law provides that if, during the
verification and appraisal of the goods conducted as a result of their seizure and confiscation pursuant
to the aforementioned provisions, the customs authority determines that an offence may have been
committed, it must inform the competent authority accordingly.
It should also be pointed out that the comp etent authorities (competent judges and the
Supervisory Authority for Industry and Trade), during proceedings before them as a result of
offences, infringement or unfair competition related to industrial property rights, may order thecustoms authorities as a precautionary measure prev iously requested by the interested party not to
release goods into free circulation.  This is justified by the fact that the precautionary measures
provided in the Code of Civil Procedure, the Commercial Code and the Criminal Code are not
exhaustive so the judge or competent official has discretion to order other types of precautionary
measure in order to prevent, forestall or stop an infringement, offence or act of unfair competition
related to industrial property rights.
33. Please indicate whether border enforcemen t is available with regard to other forms of
intellectual property rights and cite the relevant provisions of law.
Decision 486 contains a chapter regulating the measures at the border mentioned in Section 4,
Part III, of the TRIPS Agreement.
Article 250, for example, allows the owner of a registered trademark who has valid grounds
for suspecting that goods infringing his rights are to be imported or exported to request the competentnational authority to suspend the corresponding cu stoms operation, providing for this purpose the
necessary information and a sufficiently detailed and precise description of the goods subject to the
alleged infringement to allow them to be identified.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 83
Article 251 of Decision 486 allows the owner of a trademark to participate in the inspection
of the goods withheld in order to substantiate his claims, giving the importer or exporter of the goods
the same right.  Furthermore, the competent national authority must make all necessary arrangements
for confidential information to be protected, as relevant.
In accordance with the provisions of the TRIPS Agreement, Article 253 states that:"If, within ten working days af ter the applicant has been served notice of the suspension of the
customs operation, the plaintiff fails to initiate infringement proceedings or the competent
national authority has not taken measures to prolong the suspension, the measure shall be
revoked and the detained goods shall be released."
and Article 254 allows the defendant to appeal against the measure after infringement  proceedings
have been initiated
Article 255 indicates that, once the existence of infringement has been determined, the
counterfeit trademark goods seized by the competent national authority may not be re-exported nor
made subject to a different customs procedure, except in cases duly qualified by the competent
national authority or with the express consent of the right holder, without prejudice to other rights of
action available to the right holder and subject to the right of the defendant to seek review by a
judicial authority.
Lastly, Article 256 of Decision 486, in accordance with Article 60 of the TRIPS Agreement,
deals with insignificant exports, providing that small quantities of goods of a non-commercial nature
contained in travellers’ luggage or sent in small consignments are excluded from the application of the
provisions on border measures.
Regarding Colombia’s domestic legislation, it should be noted that a draft decree on border
measures is currently being examined so as to regu late the whole of the relevant chapter in the TRIPS
Agreement.
34. Please describe in detail how Colombia implements the remaining provisions of section 4
of Part III of the TRIPS Agreement, citing the relevant provisions of law.
See the reply to question 33.
35. Please describe in detail the criminal actions and remedies that are available with
respect to counterfeit trademarked goods and pirated copyrighted works and cite the relevantprovisions of law.
The current Criminal Code determines a number of acts that constitute the offence of
infringing  industrial property rights, for example:
- Article 238 fixes prison sentences and fines for any person who uses, publishes or
discloses a scientific invention, industrial process or application known to him by
reason of his functions, position or profession and which should remain confidential,
therefore, any disclosure of such information by the authorities could also make them
liable to criminal proceedings if the said conduct is classified as an offence.
- Article 236 states that anyone who fraudulently uses a legally protected industrial,
commercial or agricultural name, sign, mark, emblem, design, label, patent or
industrial design shall be liable to a term of imprisonment of six (6) months to three
(3) years and a fine of 2,000 to 100,000 pesos.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 84
- Lastly, Article 237 penalizes the unlawful use of patents, stating that any person who
manufactures a product without authorization from the owner of the legally protected
right or uses a patented means or process without proper authorization shall be liableto a term of imprisonment of six (6) months to four (4) years and a fine of 20,000 to
500,000 pesos.  The same penalties apply to any person who brings into or takes out
of the country, exhibits, offers for sale or disposes of a product manufactured in
breach of a patent.
 Law No. 599 of 2000, the new Criminal Code which will enter into force on 24 July 2000,
defines the following offences related to infringement of industrial property rights:
- Article 306 states that "Any person who fraudulently uses a trade name, sign,
trademark, patent, utility model or industrial design that is legally protected or likely
to be confused with one that is legally protected shall be liable to a term of
imprisonment of two (2) to four (4) years a nd a fine of twenty (20) to two thousand
(2,000) minimum prevailing legal monthly wages", and the same penalty applies to
any person who finances, supplies, distributes, puts on sale, markets, transports or
acquires goods produced or distributed in the circumstances described above for
commercial or brokerage purposes.
- Article 307 provides that any person who "manufactures a product without the
authorization of the owner of the legally protected right or uses a patented means or
process without proper authorization shall be liable to a term of imprisonment of
one (1) to four (4) years and a fine of twenty (20) to one thousand (1,000) minimum
prevailing legal monthly wages", and the same penalty applies to any person whobrings into or takes out of the country, exhibits, offers for sale, disposes of, finances,
distributes, supplies, stores, transports or acquires a product manufactured in breach
of a patent for commercial or brokerage purposes.
- Lastly, Article 308 provides that any person who "uses, reveals or discloses a
discovery, a scientific invention, an industrial or commercial process or application,
known to him by reason of his functions, position or profession and which shouldremain confidential shall be liable to a te rm of imprisonment of two (2) to five (5)
years and a fine of twenty (20) to two thousand (2,000) minimum prevailing legal
monthly wages", and the same penalty appl ies to any person who "unlawfully obtains
knowledge of, copies or obtains a secret related to a discovery, scientific invention,
industrial or commercial process or application", in which case the penalty shall bethree (3) to seven (7) years of imprisonment and a fine of one hundred (100) to
three thousand (3,000) minimum prevailing legal monthly wages if he or a third party
obtains a benefit therefrom.
36. Please indicate the authorities responsible for criminal actions involving intellectual
property rights and indicate whether their authority extends to other forms of intellectual
property rights.
Article 67 of the Code of Criminal Procedure provides that it is the responsibility of the State
Prosecuting Authority to direct, conduct and coordinate criminal investigations.  Competence at thejudgement stage lies in the first instance with the circuit judges, in the second instance with the higher
district courts, and, in the case of appeals, with the Supreme Court of Justice.
It is important to emphasize that any act related to industrial property rights that is not
classified as an offence cannot be judged as an act that violates criminal law, so these officials do notIP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 85
have the authority to judge acts other than those indi cated in the previous reply relating to other types
of industrial property rights.
37. Please explain whether and under what circumstances seizure, forfeiture and
destruction of infringing goods and any materials and implements are available as remedies in
wilful trademark counterfeiting or copyright piracy cases and describe the conditions under
which such penalties would be imposed.
Those penalties (with the exception of destruction) may be provisional as a result of an order
for precautionary measures becoming definitive after the appeals allowed in the law have been
exhausted and the sentence has also become definitive.
38. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout-design, and trade secret
enforcement for each of the years 1998 and 1999, including the number of cases filed;
injunctions issued;  infringing products seized ;  infringing equipment seized;  cases resolved
(including settlement);  and the amount of damages awarded.
The annex to these replies contains preliminary statistics on copyright-related action.
As regards industrial property, it should be noted that since the entry into force of Law
No. 446 of 1998 the number of actions for unfair competition has increased every six months, a trend
that is expected to continue because the public views favourably the speed and effectiveness of
proceedings before the Supervisory Authority for Industry and Trade.
Prior to the entry into force of  Law No. 446, legal action in this type of case was within the
exclusive competence of the ordinary courts, more specifically the civil circuit courts.
We hope that, with technical cooperation resources, we will be able to strengthen the
information systems, particularly as regards the jurisdictional authority, and thus obtain up-to-date
statistics on the important efforts we are making in this respect in Colombia.
39. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1998 and 1999, including the
number of raids, prosecutions, convictions, and th e amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that the criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
See the reply to the previous question.
40. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in Colombia, particularly initiatives related to criminalenforcement.
No new action will be taken in the criminal field because we are certain that the current
regulations provide intellectual property rights with adequate guarantees.
In the Colombian Government’s perspective, protection of intellectual property should be
reinforced in other areas such as education of the public and the establishment of liability for
infringement of the rules in this area in the public and private sectors.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 86
Colombia has made significant efforts in this sector and is now carrying out an awareness
campaign concerning the importance of intellectual property rights.  In addition, the verification of
compliance with the relevant rules by public bodies, the status report - an additional responsibility
given to company directors – constitute important  steps forward in an unprecedented effort to
strengthen enforcement of intellectual property rights.IP/Q/COL/1, IP/Q2/COL/1,
IP/Q3/COL/1, IP/Q4/COL/1
Page 87
ANNEX
Special Administrative Unit
National Copyright Department
Anti-piracy statistics
1999-2000
Body Complaints
madeRentals Materials and
goods seizedEconomic value Arrested
Colvideo 14 62 19,767 films 494,175,000 3
Señales TV 10 10
Cámara del
libro50 50 Books 1,440,680,000 10
Asincol 827 53,894 audio tapes
85,043 CD
Judicial PoliceDepartment8,790 CD
13,763 video tapes26,245 audio tapes
125,805 books329,860,000
Judicial Police
– General
Investigations
Group346 video games
83,325 CD
13,185 video tapes
16,624 audio tapes
1,620 books1,052,056,600 14
DIJIN 44,819 CD
1,134 video tapes12,383 books
4 jukeboxes571,012,000 18
TOTAL 901 506,748 3,887,783,600 45
__________