RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/223
21 November 2000
(00-4962)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
Replies by Colombia to Questions Posed by the United States, Japan and Switzerland
By means of a communication from the Permanent Mission of Colombia, dated
13 November 2000, the Secretariat has received the following replies to questions posed by theUnited States, Japan and Switzerland, distribu ted in documents IP/C/W/215, IP/C/W/208 and
IP/C/W/207 respectively.
_______________
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Note:  Decision 344 has been replaced by Decision 486 – Common Industrial Property Regime –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
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 withregard 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 ofIP/C/W/223
Page 2
Plants (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.
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 either
source code or object code.
Concerning data compilations, Article 28 of Decision 351 of the Andean Community of 1993
states that these are protected insofar 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 rentalrights 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 thepublic by means of sale, lending or hiring.  This lending right covers all kinds of literary and artistic
work, 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 works and with respect to
each form of neighbouring rights 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 hisdeath.  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 in
accordance with Article 2 of Law No. 44 of 1993.IP/C/W/223
Page 3
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 indicatehow 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 unjustifiablyprejudice 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:
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 lawfully
published 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:
(1) to preserve the original and replace it in the event of loss, destruction or
irreparable damage;  or
(2) 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 orreligious subjects published in newspapers or magazines, or broadcast works of the
same nature, insofar as reproduction, broadcasting or distribution to the public have
not been expressly reserved;IP/C/W/223
Page 4
(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 the
extent 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 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 havethe 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, make 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 considered
a 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 workquoted 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.IP/C/W/223
Page 5
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 insofar 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 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 insofar 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 hisprivate 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 service 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.  Withregard 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, but
their full or partial publication or reproduction shall be prohibited without the writtenauthorization 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 notprohibited.
Article 42.  The reproduction of protected works or of fragments of such works shall be
permitted, insofar as it is considered necessary 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.IP/C/W/223
Page 6
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 therelevant provisions of law.
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 insofar 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 publi c, 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) ofArticle 167 above shall cease to apply."
(ii) Moral rightsLaw 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:IP/C/W/223
Page 7
(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;
(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 in
this 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 legal
person 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 those
moral 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:IP/C/W/223
Page 8
"Article 172. – The producer of a phonogram shall have the right to authorize or prohibit the
direct or indirect reproduction of that phonogram.
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, the
user 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 inaccordance 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."IP/C/W/223
Page 9
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.
Decision 486 of the Commission of the Cartegena 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 belonging 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."IP/C/W/223
Page 10
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:
"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 inconnection 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 license 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:
"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 1551, the limitations established in
Articles 1572 and 1583 being applicable."
                                                     
1 Article 155, Decision 486, of the Commission of the Cartegena 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:IP/C/W/223
Page 11
Article 232 of the Decision fixes the time-limit for action to prevent the use of the sign, as follows:
"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 shallnot affect any action for damages that may be brought pursuant to ordinary law."
                                                                                                                                                                    
(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 se rvices for which the trademark is
registered;  or to the containers, wrapping, packing or packaging of those products;
(b) removing or changing the trademark, once it has b een 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, pack ing, or such other materials as may reproduce or
contain the trademark and selling 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 the registration owner.  Inthe case of the use of an identical sign for identical goods or services, a likelihood of confusion shall bepresumed;
(e) using in the course of trade identical or similar 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 forcommercial or advertising purposes or by taking unfa ir advantage of the prestige of the trademark or of
its owner, could unjustly damage the registration owner's economic 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 that trademark for
commercial or advertising purposes or take unfair advantage of its prestige."
2 Article 157, Decision 486, of the Commission of the Cartegena 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 ownnames, 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 thegoods 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 trademar k to announce, even in advertising using brand
comparisons, to offer for sale or advertise the existence or availability of lawfully trademarked goodsor services or from advertising the compatibility or suitability of spare parts or accessories that may beused with goods bearing the registered trademark, provided that such use is confined to the purpose ofinforming the public and is unlikely to lead to confusion over the corporate origin of the goods orservices concerned."
3 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 inany 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 influence over the other, either directly orindirectly, with respect to use of the trademark right or  when a third party is able to exert that influence
over both persons."IP/C/W/223
Page 12
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 Country 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 one
of 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 time
registration 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 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 naturaland 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:
"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', orthe like."IP/C/W/223
Page 13
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 that is consistent with that inArticle 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 258 4 and 2595
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 the Criminal
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 theproduct 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: (…)
(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 generalpublic."
Article 215, in conformity with Article 24.4 of the TRIPS Agreement provides that:"(…)
                                                     
4 "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."
5 "Article 259. – The following, among others, constitute intellectual property-linked unfair trade
practices:
(a) any act which, by any means whatsoever, is cap able of causing confusion with respect to the
business, goods or industrial activity of a competitor;
(b) false affirmations made in the course of tr ade that are capable of discrediting a competitor's
business, goods, or industrial or commercial activity;  or
(c) indications or affirmations whose use in the cour se of trade may mislead the public with regard to
the nature, method of manufacture, characteristics, usefulness, or quantity of the goods in question."IP/C/W/223
Page 14
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 with
regard 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 MemberCountry.
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, …".
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.IP/C/W/223
Page 15
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 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 appearances 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.6 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.
(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;
                                                     
6 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. To 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/C/W/223
Page 16
Computer programs are not protected under industrial property but under copyright7.
(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 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 obli gations of the first paragraph of Article 27 of
the TRIPS 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 business
As 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
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 step
and, above all, constitute mere discoveries, which are not defined as inventions in the TRIPSAgreement and may not be protected by patents.
                                                     
7 Article 4(l), Decision 351, of the Commission of the Cartagena Agreement; Article 2, Law No. 23 of
1982; Article 1, Decree 1360 of 1989.IP/C/W/223
Page 17
- 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 humanintellect and intelligence are not involved in their creation and they do not meet the requirement of
novelty and an inventive step.  This exclusion is therefore in conformity with the TRIPS Agreement,
which does not define discoveries as inventions and which 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 andbecomes 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 or
morality, 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
8 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
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 negativeeffect on public order or morality, human, animal or plant life or health or the environment, it would
be patentable.
This is consistent with Article 20 of Deci sion 486, which states that the following are not
patentable:
                                                     
8 Article 4, Decision 345, of the Commission of the Cartagena Agreement, "The Member Countries
shall grant breeders' certificates to persons who have cr eated plant varieties, insofar as the varieties are new,
uniform, distinct and stable, and if they have been given a denomination that constitutes their genericdesignation (…)."IP/C/W/223
Page 18
"(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 administrativeprovision 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 orregulates 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 mannerconsistent with the prohibition in Article 27 of the TRIPS Agreement against discrimination
based 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 Colombia
if 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."
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 anaction of infringement by the patent holder.
The provisions in Article 52 of Decision 486 allo w 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 the
TRIPS Agreement, except in the case of import of a patented product that has been put on sale in anycountry, with the consent of the ow ner, a licensee or any other person authorized by the right holder
9;
use must be in a private circle and for non-commercial purposes10;  the act must not be for
profit-making purposes and must be at the experimental, academic or scientific level11, or one of "the
acts referred to in Article 5 ter of the Paris Convention for the Protection of Industrial Property"12 and
the patent must protect "biological material that is capable of being reproduced, except for plants,"
                                                     
9 Article 54 of Decision 486, in conformity with Article 6 of the TRIPS Agreement.
10 Article 53(a), Decision 486.
11 Article 53(b) and (c) of Decision 486.
12 Article 53(d) of Decision 486.IP/C/W/223
Page 19
and be used "as a basis for obtaining a viable new material, except where the patented material must
be used repeatedly to obtain the new material".13
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.
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 initiate 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 the
certified copy as provided for in Article 4(D) (3) of the Paris Convention, incorporated by
Article 2.1 of the TRIPS Agreement.
The reply will be given subsequently.
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.
The reply will be given subsequently.
21. Articles 42 through 45 of Decision 344 authorize compulsory licences to remedy
insufficient working, national emergency and nati onal security interests.  Article 46 authorizes
compulsory licences for anti-competitive behaviour and Article 48 provides for compulsorylicences to permit use of a dependent patent.  Please describe in detail the manner in which
Colombia ensures that each of the conditions es tablished for compulsory licences is met with
each form of compulsory licence.
Compulsory licences for reasons of public interest, emergency or national security
Article 6514 of Decision 486 authorizes compulsory licensing for reasons of public interest,
emergency or national security.
                                                     
13 Article 53(e) of Decision 486.
14 Article 65, Decision 486, of the Commission of the Cartagena Agreement:  "Following the
declaration by a Member Country of the existence of public interest, 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 ownerof the 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 ofremuneration and the conditions for its payment."The grant of a compulsory licence for reasons of public interest shall not impair the right of the patentowner to continue exploiting it."IP/C/W/223
Page 20
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.
Compulsory licences as a result of practices affecting free competition
Decision 48615 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 the
owner of the patent, subject to the consent of the national anti-trust authority, which in Colombia'scase is the Supervisory Authority for Industry and Trade, pursuant to Decree 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 48616 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;
                                                     
15 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."
16 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/C/W/223
Page 21
- 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:
- 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. LAY-OUT DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
23. Please describe how Colombia implements the obligations of Section 6, Part II, of the
TRIPS Agreement and cite relevant provisions of law.
Decision 486 includes a chapter regulating lay-out 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 original17, 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 for applications to register lay-out designs of
integrated circuits, giving interested parties the opportunity to lodge objections.18 It is specified that
the term of the exclusive right in a layout design shall be ten years from the earliest of the following
dates:  (a) the last day of the year in which the layout design was first commercially exploitedanywhere 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 of
the year in which it was created
19, which is in accordance with Article 38 of the TRIPS Agreement.
                                                     
17 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."
18 Article 89, Decision 486, of the Commission of the Cartagena Agreement.
19 Article 99, Decision 486, of the Commission of the Cartagena Agreement.IP/C/W/223
Page 22
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.20  Lastly, with regard to compulsory licences for lay-out
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.21
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 in
detail how this definition encompasses all of the undisclosed information as defined in
Article 39.2 of the TRIPS Agreement.
Article 26022 of Decision 486 states that:
"The information constituting an industrial 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 supply 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 the
                                                     
20 Article 99, Decision 486, of the Commission of the Cartagena Agreement.
21 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-
competitive practice and at the request of an interested party or of a competent authority order the following at
any time:
(a) That lay-out 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 inventionsshall be applicable to the granting of compulsory licences in respect of lay-out designs."
22 Article 260, Decision 486, of the Commission of the Cartagena Agreement:
"An industrial secret shall be considered any undi sclosed information within the lawful control of an
individual person or legal entity that may be used for any productive, industrial or commercial activity and thatis capable of being transmitted to a third party, provided that the information:
(a) Is secret in the sense that it is not, as a whole or in the configuration or precise assembly of its
components, generally known among or readily accessible to persons within the circles that
normally deal with this information;
(b) is of commercial value because it is secret;  and(c) has been the subject of reasonable steps taken by the person lawfully in control of the
information to keep  it secret (...)."IP/C/W/223
Page 23
information has been provided either to enfor ce rights in such information, or for other
purposes.
Article 260 of Decision 486 identifies undisclosed information insofar 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.
23   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 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 No. 256 of 1992, for example, prohibits the "disclosure
or exploitation, without authorization of the owner, of industrial secrets or any other type of businesssecret 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 isalso the case in Article 308 of Law No. 599 of 1999
24, which states 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 term of imprisonment 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 anyperson 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 otherdata submitted to obtain marketing approval for pharmaceuticals and agricultural chemicals
and cite the relevant provisions of law.
                                                     
23 For example, records and archives in the commercial register, pursuant to Article 26 of the
Commercial Code.
24 Law No. 599 of 2000, containing Colombia's new criminal code, will enter into force on
24 July 2001.IP/C/W/223
Page 24
 Decision 486 abolishes the provision in Article 79 of Decision 344.  Article 263 of
Decision 486 states that "Protection of an industrial 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 preventing an industrial secret lawfully within their control
from being disclosed to, acquired, 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, an industrial secret to which the third party had access under a
confidentiality obligation resulting from a contractual or labour trade practice".  This Article also
states that a business secret shall be considered as having 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 secrecy, or inducement to carry out any of these acts.
From the standpoint of positive law, there are rules which define information that is not
confidential and is available to the public.25  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 7426 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 No. 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 rightsor 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 and is punishable by a term of imprisonment and a fine.  The same provisions
can be found in Article 308
27 of the new Criminal Code.
                                                     
25 For example, records and archives in the commercial register, pursuant to Article 26 of the
Commercial Code.
26 Article 74, Political Constitution:  "Any person shall have the right to access to public documents,
except in the cases specified in the law."
27 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 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/C/W/223
Page 25
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 those remedies.
Decision 486 of the Commission of the Cartagena Agreement provides for the following
action 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 authority and request the transfer to them of the applications being processedor the rights granted, or their recognition as co-applicants or co-owners of the rights.
Where trademark registrations have been filed 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 when
it 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 to initiate 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;  orIP/C/W/223
Page 26
- 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.
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 confusion28, are
misleading29 and/or exploit another person's reputation30, which constitute unfair competition 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 judges31 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 carriedout 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
committal 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 measures
32 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, precautionarymeasures 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
                                                     
28 Article 10, Law No. 256 of 1996.
29 Article 11, Law No. 256 of 1996.
30 Article 15, Law No. 256 of 1996.
31 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 administrative
authorities 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.
32 Article 31, Law No. 256 of 1996.IP/C/W/223
Page 27
Pursuant to Article 17 of the Code of Civil Pr ocedure, specialized circuit judges dealing with
civil matters33 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.
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.
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 withthe law.
With the exception of records (which do not cover industrial property-related proceedings) in
which the decision may consist of a recording
34, all judgments 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 documents35, except in the cases specified in the law", therefore, verdicts by judges
insofar 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.
                                                     
33 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).
34 Article 432, Code of Civil Procedure.
35 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/C/W/223
Page 28
- 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 or
to 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, including
containers, packaging, labels, printed material or advertising, or other materials, together with the
materials and tools predominantly used to commit 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 thedefendant or accused, if necessary, to avoid continuation or repetition of the alleged infringement.
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 andprohibiting 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 that
are not specifically provided in the civil legislation but are not excluded either.  These include the
following:
Seizure
36 of the implements and effects used to commit a fraudulent punishable act or derived
from its perpetration and not available on the open market, which shall be placed under the control of
the State Prosecuting Authority or the entity appointed by the latter, unless the law requires that they
be destroyed in accordance with 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 content37, in accordance with Article 4338 of Decree 1355 of 1970 and Article 42, which
provide that, if the act is performed by traders personally or through the action of persons in
                                                     
36 Article 67 of the Code of Criminal Procedure, Law No. 600 of 2000:  Article 100 of the Criminal
Code, Law No. 599 of 2000.
37 The aforementioned conduct constitutes a special violation affecting the national economy, as
provided in Article 41 of Decree 522 of 1971.
38 Article 194 of Decree 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 party notinvolved in the facts constituting the offence, in which cas e 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 bad condition,they must be destroyed by the police in the presence of their owner.IP/C/W/223
Page 29
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, precautionary measures may 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 particulargoods to supply the necessary information and a sufficiently detailed and precise description of the
allegedly infringing goods to allow them to be identified.
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 theexistence 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 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 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.
32. Please describe in detail the procedures under Colombia's laws, at least with respect to
counterfeit trademarked goods and pirated copyrighted works, that allow right holders to
request customs authorities not to release good s into free circulation and cite the relevant
provisions of law.  Please indicate if the cust oms authorities have ex officio authority to take
such action.
Decree 2685 of 1999 (Customs Statute) covers 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 the
customs authorities as a precautionary measure prev iously requested by the interested party not toIP/C/W/223
Page 30
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.
The reply will be given subsequently.
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.
Decision 486 contains an entire chapter regulating the border measures covered by Section 4
of Part III of the TRIPS Agreement.
Article 250, for example, gives the owner of a registered trademark who has valid grounds for
suspecting that goods infringing his right are about to be imported or exported the possibility of
requesting the competent national authority to suspend the relevant customs operation.  He must
supply the necessary information and a sufficiently detailed and precise description of the goods that
are the subject of the alleged infringement to allow them to be identified.
Article 251 of Decision 486 allows the owner of a trademark to participate in the inspection
of the goods detained in order to substantiate his claims and gives the importer or exporter of the
goods the same right.  It also states that the competent national authority must make all the necessary
arrangements to protect confidential information, if applicable.
In accordance with the provisions in the TRIPS Agreement, Article 253 provides the
following:
"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 berevoked and the detained goods shall be released."
and Article 254 allows the party against whom the measure has been taken to appeal against it after
the infringement proceedings have been initiated.
Article 255 states that, after infringement has been determined, goods bearing counterfeit
trademarks seized by the competent national authority may not be re-exported nor made subject to a
different customs procedure, except in the cases duly authorized by the competent national authority
or expressly authorized by the right holder, without prejudice to other actions available to the right
holder and subject to the defendant's  right to seek a review of the decision by a judicial authority.
Lastly, Article 256 of Decision 486, in conformity with Article 60 of the TRIPS Agreement,
regulates matters related to export of small quantities of goods, determining that small quantities of a
non-commercial nature contained in a traveller's luggage or sent in small consignments are exempt
from application of border measures.
As regards Colombian domestic legislation, it should be pointed out that a draft law on border
measures is currently being examined with the view  to regulating the relevant chapter in the TRIPS
Agreement.IP/C/W/223
Page 31
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 relevant
provisions 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.
- 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,IP/C/W/223
Page 32
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) 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 the
judgement stage lies in the first instance with the circuit judges, in the second instance with the higherdistrict 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 not
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.
These 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 lay-out 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 reply will be given subsequently.
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.
The reply will be given subsequently.
40. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in Colombia, particularly initiatives related to criminal
enforcement.
The reply will be given subsequently.IP/C/W/223
Page 33
JAPAN
A. GENERAL
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 theAgreement … ".
B. C
OPYRIGHT AND RELATED 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 inArticles 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. I
NDUSTRIAL 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-di mensional or three-dimensional shape, line, outline,
form, texture or material, without the intended use or purpose of the said product thereby 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/C/W/223
Page 34
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 insofar 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 containe d 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 plants  or animals other than non-biological or micro-
biological processes."
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/C/W/223
Page 35
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 a
reasonable 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 TRIPSAgreement.
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 thefollowing:  " … 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.
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 sections.
Aspects relating to judicial proceedings are dealt with in Title XV "On Actions for
Infringement of Rights" of Decision 486 of the Andean Community.IP/C/W/223
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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 is
protected against disclosure and against unfair commercial use by a competitor, for example byprohibiting 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 considerable
effort, shall protect such data against unfair commercial use.  In addition, Member Countriesshall protect such data against disclosure, except when necessary to protect the public or
unless steps are taken to ensure that the data is 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);  Industrial Secrets (Chapter II),
containing Article 266 on pharmaceutical and agricultural chemical products.
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