WORLD TRADE
ORGANIZATIONIP/N/6/SLV/1
13 June 2000
(00-2338)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  Spanish
CHECKLIST OF ISSUES ON ENFORCEMENT1
Replies by El Salvador
Civil and Administrative Procedures and Remedies
(a) Civil judicial procedures and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
IPR infringement cases fall within the jurisdiction of the commercial courts.
This is based on Article 184 of the Law on the Promotion and Protection of Intellectual
Property, which establishes the jurisdiction of the commercial courts, assuming no special courts are
created with jurisdiction over intellectual property matters.
It is also based subsidiarily on Article 67 of the Central American Convention for the
Protection of Industrial Property and Legislativ e Decree No. 85 ratifying that Convention, which
regulates issues relating to marks, trade names and advertizing slogans or signs as well as indications
of source and appellations of origin.
Cases are brought before the following judicial bodies:
- Trade courts of first instance, which hear at first instance any court cases brought
within the territory corresponding to their ju risdiction,  and at second instance in cases
and areas determined by the law (see Articles 16, 59 and 60 of the Organic Judicial
Law).
Similarly, Article 15 of the Organic Judicial Law stipulates that the civil courts shall also have
jurisdiction over trade matters in the municipalities in which there are no trade courts.
- Chambers of second instance, which have jurisdiction over:
- Cases corresponding to the territory assigned to them, heard at first instance
by the respective courts:
- on appeal;
- on remedy of review of leave to appeal;
- for consultation;
                                                     
1 Document IP/C/5.IP/N/6/SLV/1
Page 2
- for review,
- Special complaint proceedings for delay of justice or other infringement;
- other cases as determined by the law.
The above is based on Article 57 of the Organic Judicial Law.
- Civil Division of the Supreme Court of Justice (see paragraph 1 of Article 54 of the
Organic Judicial Law) which handles, inter alia , judicial review proceedings relating
to trade matters.
2. Which persons have standing to assert IPRs?  How may they be represented?  Are there
requirements for mandatory personal appearances before the court by the right holder?
Standing
Any natural or legal person who is an IPR right holder has standing to assert his right in
accordance with Article 90 of the Law on the Promotion and Protection of Intellectual Property andArticles 5 and 67 of the Central American Convention for the Protection of Industrial Property, which
also confers standing upon the Government Procurator's  Office in cases of infringement of rights to
distinctive commercial signs, and indications of source and appellations of origin.
It should also be mentioned that Article 100 of the Law on the Promotion and Protection of
Intellectual Property stipulates that collective management entities shall have standing, in accordance
with their own articles of association and the contra cts concluded with foreign entities, to exercise the
rights they are called upon to administer and to assert them as legal representatives in any type of
administrative or judicial procedure.
Representation
A right holder who is a natural person may act on his own behalf pending the signature and
stamp of the Chief Attorney, in accordance with Articles 98 and 104 of the Code of Civil Procedure,
or through a solicitor, who must be an attorney, in accordance with Articles 99 and 101.
A right holder that is a legal person may act through a legal representative, pending the
signature and stamp of the Chief Attorney, in accordance with Article 104 of the above-mentioned
Code, or through a solicitor, who must be an attorney, in conformity with Articles 99 and 100.
Mandatory personal appearance
In proceedings before the courts, personal appearance of the right holder is not mandatory
with the exception of cases in which one of the parties has requested that the opposing party reply to
interrogatories (deposition).
In this respect, Article 376 of the Code of Civil Procedure stipulates that as soon as a case is
brought to trial at first instance, the parties may, at  the other instances involved and at any stage prior
to judgment, even where there is no further admission of evidence, request in the form of
interrogatories, written and not oral, sworn statemen ts on personal matters pertaining to the case at
issue, known as pleadings.IP/N/6/SLV/1
Page 3
On the same subject, Article 378 of the Code of Civil Procedure states that the party shall
reply personally to the interrogatories when the requesting party so requires, even when represented
by an attorney with special powers.
3. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produce evidence which lies within its control?
Under Article 237 of the Code of Civil Procedure, the obligation to produce evidence lies
with the claimant.  However, Article 156 establishes the right of all persons to request that the other
party produce, before the competent judge, the public or private documents, or moveable goods
required for the preparation of an action or to defend itself against the action brought against it.
Likewise, Article 21(1) of the Law on Commercial Procedures requires, before an action can
be brought, inter alia , the display before the court of objects constituting evidence of unfair
competition.  Such display is to take place in accordance with the article mentioned in the paragraph
above.
4. What means exist to identify and protect confidential information brought forward as
evidence?
Confidential information brought forward as evidence in the proceedings is protected under
the second paragraph of Article 177 of the Law on the Promotion and Protection of IntellectualProperty, which stipulates that information supplied to any authority by a person holding it as an
industrial or trade secret shall not be considered as coming under the public domain or disclosed by
operation of the law when it is supplied for the purposes of obtaining licences, permits, authorizations,
registration or any other official documents.
Similarly, Article 1245 of the Code of Civil Procedure stipulates that the courts, judges and
secretaries shall not give the parties access to the court records or communicate any document
presented during the proceedings except under signed authorization by the party and subject to a court
order.  However, the litigating parties and their attorneys may apply to the appropriate offices for
consultation of the court records and such documents as they wish to consult, and to take notes or
private copies thereof, as long as in either case they are public, thus ensuring that the confidential
information is safeguarded.
5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use:
- Injunctions;- damages, including recovery of profits, and expenses, including attorneys' fees;- destruction or other disposal of infringing goods and materials/implements for
their production;
- any other remedies.
Copyright and neighbouring rights
The remedies or decisions that may be ordered by the judicial authorities at the request of the
holder in respect of copyright or neighbouring rights are the following:IP/N/6/SLV/1
Page 4
- Preventive seizure of the liquid revenue obtained through the unlawful use
(Article 91(a) of the Law on the Promotion and Protection of Intellectual Property);
- preventive seizure of unlawfully reproduced copies (Article 91(b)), Law on the
Promotion and Protection of Intellectual Property;
- suspension of unauthorized reproduction, communication or distribution activities, as
appropriate (Article 91(c) of the Law on the Promotion and Protection of Intellectual
Property);
- prohibition of the import or export of unlawfully reproduced copies by order to the
Directorate-General of Customs Revenue (Article 91(d) of the Law on the Promotionand Protection of Intellectual Property);
- cessation of the violation of the rights (Article 90 of the Law on the Promotion and
Protection of Intellectual Property), i.e:
- Immediate suspension of the unlawful activity;
- prohibition of the infringer from resuming it;- withdrawal from the market of the unlawful copies;- disablement and where necessary, destruction of moulds, plates, printing
blocks, negatives and other elements used predominantly for unlawful
reproduction;
- removal or keeping under lock and seal of the equipment used for
unauthorized public communication.
- destruction of the unlawful copies or delivery up thereof, together with the materials
used for reproduction at cost price and on account of the corresponding damages
(Article 90 of the Law on the Promotion and Protection of Intellectual Property);
- compensation for damages and injury (Article 90 of the Law on the Promotion and
Protection of Intellectual Property).  With respect to loss of earnings, damages are
calculated on the basis of one of the following criteria at the discretion of the injured
party:
- The profits that the right owner would presumably have earned if the
infringement had not occurred;
- the profits actually earned by the infringer as a result of the infringing acts;
- the price or royalty that the infringer would have paid to the right owner if a
contractual licence had been agreed upon, due regard being had to the
commercial value of the subject-matter of the rights infringed and the
contractual licences already granted.
Industrial property
The remedies or decisions that may be applied by the judicial authorities at the request of the
holder in respect of industrial property rights are as follows:IP/N/6/SLV/1
Page 5
Patents, utility models and industrial designs
- Claiming of the right when a patent or industrial design registration has been
requested or obtained by a person who does not have a right thereto or to thedetriment of another person who does have a right to obtain the patent or registration
(Article 168 of the Law on the Promotion and Protection of Intellectual Property);
- cessation of the act or acts which infringe the right conferred by a patent or industrial
design registration (Article 172 of the Law on the Promotion and Protection of
Intellectual Property);
- compensation for damages suffered as a result of the infringement of a right conferred
by a patent or industrial design registration (Article 172 of the Law on the Promotion
and Protection of Intellectual Property).  The calculation of damages as regards
compensation for loss of earnings is based on the following criteria, at the discretion
of the injured party:
- The profits that the right owner would presumably have earned if the
infringement had not occurred;
- the profits actually earned by the infringer as a result of the infringing acts;- the price or royalty that the infringer would have paid to the right owner if a
contractual licence had been agreed upon, due regard being had to the
commercial value of the subject-matter of the rights infringed and the
contractual licences already granted.
- seizure of the goods resulting from the infringement and the means used
predominantly to commit the infringement of a right conferred by a patent or
registration of an industrial design (Article 172 of the Law on the Promotion and
Protection of Intellectual Property);
- transfer of ownership of the above-mentioned objects or means, in which case the
value of the goods shall be deducted from the amount of the damages (Article 172 of
the Law on the Promotion and Protection of Intellectual Property);
- measures necessary to prevent the continuation or repetition of the infringement,
including destruction of the means seized under the relevant paragraph above wherenecessary (Article 172 of the Law on the Promotion and Protection of Intellectual
Property);
- as a precautionary measure, the immediate cessation of the infringing acts may be
ordered (Article 174 of the Law on the Promotion and Protection of IntellectualProperty).
- as a precautionary measure, the preventive seizure, withholding or deposit of the
infringing goods and the means used predominantly to commit the infringement may
be ordered (Article 174 of the Law on the Promotion and Protection of IntellectualProperty);IP/N/6/SLV/1
Page 6
Industrial or trade secrets
- Compensation for damages through the use for commercial purposes or disclosure
without justification and without the consent of the holder or authorized user of the
secret (Article 180 of the Law on the Promotion and Protection of IntellectualProperty);
- compensation for damages resulting from the unlawful procurement of information
containing an industrial or trade secret (Article 180 of the Law on the Promotion and
Protection of Intellectual Property).
Distinctive commercial signs
- Immediate cessation of the use or unlawful imitation of a mark (Article 26 of the
Central American Convention for the Protection of Industrial Property);
- prohibition of the import or entry of merchandise or products as long as they continue
to display a misused mark (Article 26 of  the Central American Convention for the
Protection of Industrial Property);
- recovery of damages caused by the misuse of a mark (Article 26 of the Central
American Convention for the Protection of Industrial Property);
- cessation of the misuse or unlawful imitation of a trade name (Article 53 of the
Central American Convention for the Protection of Industrial Property);
- recovery of damages caused by the misuse of a trade name (Article 53 of the Central
American Convention for the Protection of Industrial Property);
- cessation of the misuse or unlawful imitation of an advertising slogan or sign
(Articles 64 and 26 of the Central American Convention for the Protection of
Industrial Property);
- prohibition of the import or entry of merchandise or products as long as they display a
misused advertising slogan or sign (Articles 64 and 26 of the Central American
Convention for the Protection of Industrial Property);
- recovery of damages caused by the misuse of an advertising slogan or sign
(Articles 64 and 26 of the Central American Convention for the Protection ofIndustrial Property);
- in the case of acts of unfair competition, such prudential court orders as the judge
may deem appropriate for the adequate protection of the rights of the complainant, of
consumers and of the competitors, including the preventive seizure or confiscation ofthe merchandise in question (Articles 65, 66 and 68 of the Central American
Convention for the Protection of Industrial Property);
- in cases of unfair competition, recovery of damages (Article 70 of the Central
American Convention for the Protection of Industrial Property).IP/N/6/SLV/1
Page 7
Indications of source and appellations of origin
- In the case of acts of unfair competition, such prudential court orders as the judge
may deem appropriate for the adequate protection of the rights of the complainant, of
consumers and of the competitors, including the preventive seizure or confiscation ofthe merchandise in question (Articles 77 and 68 of the Central American Convention
for the Protection of Industrial Property);
- in cases of unfair competition, recovery of damages (Articles 77 and 70 of the Central
American Convention for the Protection of Industrial Property).
Draft law on marks and other distinguishing signs
In accordance with the section entitled Actions and Penalties for the Violation of Rights of the
draft Law on Marks and Other Distinctive Signs, the following measures may be imposed in case of
infringement of rights regarding distinctive commercial signs, and geographical indications and
appellations of origin:
- Seizure of the infringing goods, including packaging, wrapping, labelling, printed or
advertising materials or other materials resulting from the infringement or used to
commit the infringement, and the means th at served principally to commit the
infringement;
- prohibition of the import of the goods, materials or the means referred to in the
previous indent;
- attribution of ownership of the goods, materials or means referred to in the first
indent, in which case the value of the goods shall be deducted from the amount of the
damages;
- such measures as are required to prevent the continuation or repetition of the
infringement, including the destruction of the goods, materials or means referred to in
the first indent;
- cessation of the infringing acts;
- compensation for damages, which are calculated, inter alia , in accordance with the
following criteria:
- loss of earnings by the right holder as a result of the infringement;
- amount of the profits earned by the infringer as a result of the infringing acts;
and
- the price which the infringer would have paid if a contractual licence had
been agreed upon, due regard being had to the commercial value of the right
infringed and the contractual licences already granted;
- publication of the sentence and notification thereof to interested persons at the cost of
the infringer;
- as a precautionary measure, immediate cessation of the infringing acts;IP/N/6/SLV/1
Page 8
- as a precautionary measure, seizure with inventory, description or deposit of the
goods, packaging, labels or other materials displaying the infringing sign and the
means principally used to commit the infringement;
- as a precautionary measure, suspension of the import or export of the goods, materials
or means referred to in the previous indent;
- as a precautionary measure, provision of a security or other guarantee of payment of
any possible damages by the alleged infringer;
- as a precautionary measure, communication by the alleged infringer of any
information he may have concerning persons who participated in the production ormarketing of the infringing goods or services and the distribution channels for such
goods or services.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the productionand distribution of goods or services found to be infringing and of their channels of
distribution?
In accordance with the provisions in the Code of Civil Procedure concerning depositions
(Article 376), the judge, as soon as the case is brought to trial at first instance, may order a party, atthe request of the other party, to answer interrogatories, in which case the third parties involved in the
infringement of the rights in question must be iden tified together with the channels of distribution
used.
In this connection it should be noted that under Article 385 of the Code of Civil Procedure,
the party asked to answer the interrogatories shall be considered to have confessed:
(1) If he fails to appear on the second citation without reasonable cause;(2) if he refuses to give evidence or take oath;(3) if his replies are evasive and are not complete and final.At the same time, the second paragraph of Article 89 of the draft Law on Marks and Other
Distinctive Signs gives the judicial court the power to order the infringer to  provide any information
in his possession concerning persons involved in the production or marketing of the infringing goods
or services and their channels of distribution.
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?
Indemnification of defendants wrongfully enjoined
Under Article 439 of the Code of Civil Procedure,  any complainant who is unable to prove his
case at first instance or who abandons his action shall be ordered to pay the costs.  The same article
stipulates that if the proceedings reveal that one of the parties not only failed to prove his case orsubstantiate his claim, but in fact acted with intent or is unfit, that party shall also be ordered to pay
damages.IP/N/6/SLV/1
Page 9
At the same time, Article 91 of the Law on the Promotion and Protection of Intellectual
Property stipulates that persons requesting prudential measures in connection with copyright
infringements must file the corresponding complaint within eight days following the date on which
the measures were ordered, failing which they shall be liable for damages.
Similarly, Article 174 of the above-mentioned La w provides for the application of immediate
precautionary measures in cases of infringement of  industrial property rights protected thereunder,
with the possibility of making such measures continge nt on the provision of a sufficient security.  The
same article  also stipulates that if the action for infringement is not brought within ten working days
following the imposition of the measure, the measur e shall cease to have effect and the complainant
shall be liable for damages.
Article 23 of the Law on Commercial Procedure, for its part, gives the judge the authority to
order the payment of a security for the potential damages resulting from the display in court of the
goods proving unfair competition referred to in paragraph 1 of Article 493 of the Commercial Code,
which covers the misuse of distinctive commercial signs.
According to Article 239 of the Constitution, judges and public officials alike are responsible
for governmental offences committed in the exercise of their duties and shall be judged for such
governmental offences as they commit by the common courts.
Similarly, Article 245 stipulates that public officials and employees shall be personally liable
and the State subsidiarily liable for material or moral damages caused as a result of violation of the
rights enshrined in the Constitution.
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Article 182(5) of the Constitution stipulates that the Supreme Court of Justice shall ensure
that justice is administered rapidly and completely, to which end it shall adopt such measures as it
deems necessary.
In accordance with the above and with Article 184 of the Law on the Promotion and
Protection of Intellectual Property as well as Article 2 of the Law on Commercial Procedure,complaints with respect to intellectual propert y infringements shall be dealt with by summary
procedure.
In this respect, Article 59 of the Law on Commercial Procedure establishes the rules
governing summary procedures, referring to the provisions of Articles 975, 976 and 977 of the Codeof Civil Procedure:
Article 975:  The complaint shall be transmitted for a period of three days to the opposing
party, and, upon receipt of the said party's reply or by default, the evidence shall be admitted
for a period of eight days together with all of the charges if necessary.  Once those eight dayshave elapsed, a judgement shall be handed down in accordance with the law and without
further formalities or procedures
Article 976:  In all summary proceedings, objections shall be put forward and substantiated as
indicated in Article 483.Article 977:  As a rule, in summary proceedings, provided the dispute concerns the
application of the law to the matter under question and once the facts have been substantiatedIP/N/6/SLV/1
Page 10
by the public records that have not been refuted, or provided the parties expressly so agree
evidence shall not be required.
The actual duration of commercial summary proceedings, taking account of motions filed
during the course of the proceedings or appeals lodged in connection with the pleas or motionsresolved therein, may be up to a year and a half.
Article 181 of the Constitution stipulates that the administration of justice shall be free of
charge.
On the other hand, the right holder shall be responsible for paying the fees of the Chief
Attorney or prosecutor he appoints.  Since El Salvador has an outdated system of fees, these arenormally determined by agreement.
It is therefore extremely difficult to establish the costs of such proceedings, since they vary
from case to case.
(b) Administrative procedures and remedies
9. Reply to the above questions in relation to any administrative procedures on the merits
and remedies that may result from these procedures.
9.1 Specify the courts which have jurisdiction over IPR infringement cases.
With respect to copyright and neighbouring rights, Article 98(b) of the Law on the Promotion
and Protection of Intellectual Property states that the Commercial Registry shall be responsible for
serving as an arbitrator, when the interested parties so request, in disputes which arise between right
holders, between collective management entities, between the latter and their partners orrepresentatives and between the management entities and right holders or users of works,
performances or productions protected under Title II of the said Law related to artistic, literary or
scientific property.
It should be noted that in such cases, the interested parties retain the right to apply to the
competent court where they do not agree with the decision of the Registrar.
With respect to industrial property, objections to registrations of marks, trade names and
advertising slogans or signs are substantiated before the Commercial Registry in accordance with
Articles 97 et seq . of the Central American Convention for the Protection of Industrial Property.
9.2 Which persons have standing to assert IPRs?  How may they be represented?  Are there
requirements for mandatory personal appearances before the court by the right holder?
Proceeding from the previous reply and in c onformity with the above-mentioned Article 98 of
the Law on the Promotion and Protection of Intellectual Property, the persons who have standing to
assert IPRs in an arbitration before the Commercial Registry are:
- The holders of such rights;- collective management entities;
- partners or representatives of the management entities;IP/N/6/SLV/1
Page 11
- users of the works, performances or prod uctions protected under Title II of the said
Law relating to artistic, literary or scientific property.
Industrial property
With respect to the procedure for filing an objection to the registration of marks, trade names
and advertising slogans or signs, Article 97 of the Central American Convention for the Protection of
Industrial Property states that any person claiming to have a legitimate interest may oppose an
application for registration and object to the granting thereof.
Similarly, the above-mentioned provision states that the objecting party may appear in person
with the assistance of an attorney or may be represented by an agent who must also be an attorney.
There are no provisions which provide for mandatory personal appearances by the right
holder.
9.3 What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produce evidence which lies within its control?
The administrative authorities have no authority to order, at the request of an opposing party,
a party to a proceeding to produce evidence which lies within its control.
9.4 What means exist to identify and protect confidential information brought forward as
evidence?
Confidential information brought forward as evidence in the proceedings is protected under
the second paragraph of Article 177 of the Law on the Promotion and Protection of IntellectualProperty, which stipulates that information supplied to any authority by a person holding it as an
industrial or trade secret shall not be considered as coming under the public domain or disclosed by
operation of the law when it is supplied for the purposes of obtaining licences, permits, authorizations,
registration or any other official documents.
9.5 Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use.
In the area of copyright, the issue of the resolution under the arbitration procedure referred to
in Article 98(b) of the Law on the Promotion and Protection of Intellectual Property.
In the industrial property area, settlement of the objection in conformity with Article 106 of
the Central American Convention for the Protection of Industrial Property.
9.6 In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the production
and distribution of the goods or services found to be infringing and of their channels ofdistribution?
The administrative authorities do not have such authority.
9.7 Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?IP/N/6/SLV/1
Page 12
Under Article 439 of the Code of Civil Procedure,  any complainant who is unable to prove his
case at first instance or who abandons his action shall be ordered to pay the costs.  The same Article
stipulates that if the proceedings reveal that one of the parties not only failed to prove his case or
substantiate his claim, but in fact acted with intent or is unfit, that party shall also be ordered to pay
damages.
9.8 Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Since Article 98(b) of the Law on the Promotion and Protection of Intellectual Property does
not provide any details on the arbitration procedure provided for therein, the procedure is governed by
the provisions on arbitration procedures in Articles 56 et seq . of the Code of Civil Procedure.
It should also be noted that since this type of procedure is not commonly used, it is extremely
difficult to provide any data on its duration and cost.
Provisional measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
Copyright and neighbouring rights
The provisional measures that may be applied by the judicial authorities with respect to
copyright and neighbouring rights are as follows:
- Preventive seizure of the liquid revenue obtained through the unlawful use (Article 91
of the Law on the Promotion and Prot ection of Intellectual Property);
- preventive seizure of unlawfully reproduced copies (Article 91 of the Law on the
Promotion and Protection of Intellectual Property);
- suspension of the unauthorized reproduction, communication or distribution
activities, as appropriate (Article 91 of the Law on the Promotion and Protection of
Intellectual Property);
- prohibition of the import or export of unlawfully reproduced copies by order to the
Directorate-General of Customs Revenue (Article 91 of the Law on the Promotionand Protection of Intellectual Property).
Industrial property
The provisional measures that may be applied by the judicial authorities with respect to
industrial property rights are as follows:
Patents, utility models and industrial designs
- As a precautionary measure, the immediate cessation of the infringing acts
may be ordered (Article 174 of the Law on the Promotion and Protection of
Intellectual Property);IP/N/6/SLV/1
Page 13
- as a precautionary measure, the preventive seizure, withholding or deposit of
infringing goods and the means used predominantly to commit the
infringement may be ordered (Article 174 of the Law on the Promotion and
Protection of Intellectual Property).
Distinctive commercial signs
- Prohibition of the import or entry of merchandise or products as long as they
continue to display a misused mark (Article 26 of the Central American
Convention for the Protection of Industrial Property);
- prohibition of the import or entry of merchandise or products as long as they
continue to display a misused advertising slogan or sign (Articles 64 and 26
of the Central American Convention for the Protection of Industrial Property;
- in the case of acts of unfair competition, such prudential court orders as the
judge may deem appropriate for the adequate protection of the rights of thecomplainant, of consumers and of the competitors, including the preventive
seizure or confiscation of the merchandise in question (Articles 65, 66 and 68
of the Central American Convention for the Protection of Industrial Property).
Indications of source and appellations of origin
- In the case of acts of unfair competition, such prudential court orders as the
judge may deem appropriate for the adequate protection of the rights of the
complainant, of consumers and of the competitors, including the preventive
seizure or confiscation of the merchandise in question (Articles 77 and 78 ofthe Central American Convention for the Protection of Industrial Property).
Draft Law on Marks and Other Distinctive Signs
In accordance with the section entitled Actions and Penalties for the Violation of
Rights of the draft Law on Marks and Other Distinctive Signs, the following measures
may be imposed in case of infringement of rights regarding distinctive commercial
signs, and geographical indications and appellations of origin:
- Immediate cessation of the infringing act;- seizure with inventory, description or deposit of the goods, packaging, labels
or other materials displaying the infringing sign and the means principally
used to commit the infringement;
- suspension of the import or export of the goods, materials or means referred
to in the previous indent;
- provision of a security or other guarantee of payment of any possible damages
by the alleged infringer;
- communication by the alleged infringer of any information he may have
concerning persons who have participated in the production or marketing of
the infringing goods or services and the distribution channels for such goods
or services.IP/N/6/SLV/1
Page 14
11. In what circumstances may such measures be ordered inaudita altera parte ?
With respect to copyright, Article 91 of the Law on the Promotion and Protection of
Intellectual Property stipulates that the judge may order, at the request of the holder of the infringed
rights and subject to the provision of a security, such prudential measures as are necessary for theurgent protection of such rights, to be imposed without notice to the infringer.
Similarly, Article 174 of the said Law stipulates that in cases of infringement of industrial
property rights protected thereunder, the judge may order, with immediate effect, such precautionary
measures as are necessary to ensure the effectiveness of the infringement proceedings or the recovery
of damages.
In addition, Article 148 of the Code of Civil Procedure states that it is not necessary to name
the person in respect of whom attachment is requested to order such measure.
12. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular, relevant time-limits and safeguards to protect the legitimateinterests of the defendant.
Copyright and neighbouring rights
Under Article 91 of the Law on the Promotion a nd Protection of Intellectual Property, any
right holder, who considers that his copyright has been violated may ask the judge to order such
prudential measures as are necessary to protect that right.
In such cases, the judge shall verify the violation of the right or the existence of a justified
fear that such violation will occur or a violatio n already committed might be repeated, together with
the validity of the complainant's claims, following which, and subject to the provision of a security, he
shall order such prudential measures as the circumstances require.
This procedure is initiated through a written application by the complainant.  The application
may be submitted before or together with the main complaint.  If the measures are requested prior to
the complaint, the complaint must be filed within eight days following the granting of the measures,
failing which the complainant shall be liable for the damages caused.
Patents, utility models and industrial designs
Article 174 of the Law on the Promotion and Protection of Intellectual Property stipulates that
an industry property right holder protected thereunder may ask the judge, prior to or together with therequest, to order immediate precautionary measures to ensure the effectiveness of the proceedings or
the recovery of damages.  Such precautionary measures may be made contingent on the provision of a
sufficient security.
If the infringement action is not brought within ten working days following the imposition of
a precautionary measure, the measure will cease to have effect and the complainant will be liable for
the damages.
Distinctive commercial signs, indications of source and appellations of origin
Article 68 of the Central American Convention for the Protection of Industrial Property
stipulates that once the action for unfair competition has been brought, the judge or authority
concerned may order, subject to the provision by the complainant of a security to cover damages, such
prudential measures as he deems appropriate for the adequate protection of the rights of theIP/N/6/SLV/1
Page 15
complainant, of consumers and of the competitors, including the preventive seizure or confiscation of
the merchandise in question, and to ensure the suspension of the acts which gave rise to the action or
the return to the state of affairs prior to the commission of the acts of unfair competition.
13. Describe the provisions governing the length and cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost.
As a rule, a provisional measure is ordered by the judge for a period of one to two weeks.
As regards the cost of the proceedings, the right holder must pay the fees of the
Chief Attorney or prosecutor he appoints.  Since El Salvador has an outdated system of fees, these are
normally determined by agreement.
It is therefore extremely difficult to establish the costs of such proceedings, since they vary
from case to case.
(b) Administrative measures
14. Reply to the above questions in relation to any administrative provisional measures.
The administrative authorities do not have the authority to order provisional measures, which
are handled by the judicial authorities.
Special requirements related to border measures
15. Indicate for which goods it is possible to  apply for the suspension by the customs
authorities of the release into free circulation,  in particular whether these procedures are
available also in respect of goods which involve infringements of intellectual property rights
other than counterfeit trade mark or pirate d copyright goods as defined in the TRIPS
Agreement (footnote to Article 51).  Specify, together with relevant criteria, any imports
excluded from the application of such procedures (such as goods from another member of a
customs union, goods in transit or de minimis imports).  Do the procedures apply to imports of
goods put on the market in another country by or with the consent of the right holder and to
goods destined for exportation?
The intellectual property right holder may ask the judge to prohibit the import of any products
which infringe that right.  Such measure will be ordered by the judge once he has established the
ownership of the right by the complainant and such other circumstances as are provided for in each
particular case.
Copyright
Article 91 of the Law on the Promotion and Protection of Intellectual Property stipulates that
in the event of a violation of rights, or where there is a justified fear that such a violation might occuror a violation already committed might be repeated, the judge may, on verification of the prior
circumstances and the validity of the complainant's claim, prohibit, inter alia , the import or export of
unlawfully reproduced copies by order to the Directorate-General of Customs Revenue.
Patents, utility models and industrial designs
Article 174(b) of the Law on the Promotion and Protection of Intellectual Property states that
the holder of an industrial property right protecte d thereunder may ask the judge to order, among otherIP/N/6/SLV/1
Page 16
precautionary measures, the preventive seizure, detention or deposit of the infringing goods and the
means predominantly used to commit the infringement.
Distinctive commercial signs
Article 26 of the Central American Convention for the Protection of Industrial Property
establishes the right of the holder of a registered mark to have the competent authorities prohibit the
import or entry of the merchandise or products as long as they continue to display that mark.
Similarly Article 92 of the draft Law on Marks and Other Distinctive Signs states that the
precautionary measures to be applied at customs shall be implemented by the customs authorities
upon import or export of the infringing goods, materials or means.
The law also provides that products carrying unlawful distinctive signs, advertizing material
referring to such signs and the materials and means used to commit the infringement shall be detained
or confiscated by the competent customs or police authorities pending the results of the corresponding
procedure.
Indications of source and appellations of origin
According to Articles 77 and 68 of the Central American Convention for the Protection of
Industrial Property, when an action has been brought for unfair competition, the judge may order suchprudential measures as he deems appropriate to provide adequate protection for the rights of the
complainant, consumers and the competitors.
Imports excluded from the application of border measures
With respect to imports excluded from the application of the above-mentioned procedure, it
should be noted that de minimis  imports are considered to be personal and are not liable to be detained
by the customs authorities (Legislative Decree No. 647).
Similarly, Article 228 of the Central American Convention for the Protection of Industrial
Property stipulates that it will not be possible to file an action for the prohibition of the entry of
merchandise unlawfully displaying a mark when a customs union is established between the territoriesof the signatory States if the merchandise originates in one of those States.  However, El Salvador
does not as yet belong to any customs union with any country in Central America or outside the
region, so that the said provision does not apply.
16. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirements related
to the duration of suspension (Article 55).  How have Articles 53 (security or equivalent
assurance), 56 (indemnification of the importer and of the owner of the goods) and 57 (right of
inspection and information) been implemented?
An intellectual property right holder requesting border measures may apply directly to the
judge to issue the corresponding judicial order to the Directorate-General of Customs Revenue.
In such case, the Directorate-General of Customs Revenue issues a circular for distribution to
all customs posts in the country instructing them to restrict the entry of the infringing goods.IP/N/6/SLV/1
Page 17
This is based on Articles 91 and 174 of the Law on the Promotion and Protection of
Intellectual Property and Article 68 of the Central American Convention for the Protection of
Industrial Property, which also define the content of the applications and the security to be provided.
17. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of decisions
by the competent authorities for the suspension of the release of goods into free circulation?
As already mentioned in the replies concerning precautionary or prudential measures, the
border measures constitute one of the various precautionary measures that a judge may impose in
response to infringements of intellectual property rights when the right holder has so requested.
In this respect, the comments made in reply to question 13 of this questionnaire are
applicable.
18. Are competent authorities required to act upon  their own initiative and, if so, in what
circumstances?  Are there any special provisions applicable to ex officio action?
The customs authorities do not have the authority to act ex officio.
19. Describe the remedies that the competent au thorities have the authority to order and
any criteria regulating their use.
The customs authorities do not have the authority to impose border measures on there own
initiative, but must act on judicial order as follows:
Copyright
Under Article 91 of the Law on the Promotion a nd Protection of Intellectual Property, the
prohibition on the import or export of unlawfully produced copies is treated as a prudential measure,
and the owner of the infringed right must apply to the judge for the imposition of such a measure,
which the judge then orders subject to the provision of a security and without notifying the infringer.
Patents, utility models and industrial designs
Article 174 of the Law on the Promotion and Protection of Intellectual Property establishes,
among the precautionary measures that may be requested by the holder of the infringed right,
preventive seizure, detention or deposit of the infringing goods and the means predominantly used to
commit the infringement.
Thus, the judge may issue the order immediately in response to the right holder's application,
and may make such measure contingent on the provision of a sufficient security.
Distinctive commercial signs
With respect to distinctive commercial signs, the Central American Convention for the
Protection of Industrial Property provides for the following precautionary measures:
- Prohibition of the import or entry of merchandise or products as long as they display
a misused mark (Article 26 of the Central American Convention for the Protection of
Industrial Property);IP/N/6/SLV/1
Page 18
- prohibition of the import or entry of merchandise or products as long as they display a
misused advertising slogan or sign (Articles 64 and 26 of the Central American
Convention for the Protection of Industrial Property);
- in cases of unfair competition, such prudential measures shall be imposed by the
judge at the request of the right holder subject to the provision of a sufficient security
(Article 68 of the Central American Convention for the Protection of Industrial
Property).
Indications of source and appellations of origin
In the case of acts of unfair competition, such prudential court orders as the judge may deem
appropriate for the adequate protection of the rights of the complainant, of consumers and of the
competitors, including the preventive seizure or confiscation of the merchandise in question, in
accordance with the procedure described in the previous indent (Articles 77 and 68 of the Central
American Convention for the Protection of Industrial Property).
Draft Law on Marks and Other Distinctive Signs
The section entitled Action and Penalties for the Violation of Rights of the draft Law on
Marks and Other Distinctive Signs provides, in cases of infringement of rights to distinctive
commercial signs and geographical indications and appellations of origin, among other prudentialmeasures that may be ordered, for the suspension of imports or exports of the goods or materials
displaying the infringing sign and of the means predominantly used to commit the infringement.
The right holder may apply to the competent authority to impose this measure before, during
or after the initiation of the action.  The precautionary measures may only be ordered when thecompetent authority is satisfied that sufficient evidence has been shown of the commission of the
infringement or its imminence.  The authority ma y, in such cases, require a sufficient security.
Criminal procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
Under Article 48 of the Code of Penal Procedure, criminal jurisdiction is exercised by the
courts and judges of the Republic and applies to nationals and foreigners.
Criminal cases are tried as follows:
- The magistrates' courts have jurisdiction in respect of the initial investigation
proceedings and the initial hearing, which addresses the application by the public
prosecutor to determine whether there is sufficient evidence to initiate the
proceedings (Article 55 of the Code of Penal Procedure);
- the examining courts handle the formal pre-trial hearings for publicly actionable
offences, in conformity with Article 54 of the Code of Penal Procedure;
- the courts of judgment handle the full court stage for all offences in accordance with
Article 53 of the Code of Penal Procedure;
- the chamber of second instance, under Article 51 of the Code of Penal Procedure,
handles, inter alia , regular appeals and appeals for review once the judgement in
question has been handed down;IP/N/6/SLV/1
Page 19
- the Criminal Division of the Supreme Court of Justice handles, inter alia , appeals to
vacate a judgement when the Criminal Chamber has tried it at second instance and
the appeal for review when the judgement in question has been handed down.
21. In respect of which infringement of which intellectual property rights are criminal
procedures and penalties available?
Title VIII (Offences Relating to Property), Chapter VII (Offences Relating to Intellectual
Property) of the Penal Code provides as follows:
- Violation of copyright or neighbouring rights
Article 226:  The reproduction, plagiariza tion, distribution or public communication,
in part or in full, of a literary, artistic, scientific or technical work, or its artistic
transformation or performance, fixed on any type of medium or communicated
through any medium without the authorization of the holders of the correspondingintellectual property rights or their assignees, shall be punished by one to three years'
imprisonment.
The same penalty shall apply to anyone who fa ils to submit to the Register of Commerce such
works or productions or performances, or imports, exports or stores copies thereof without the saidauthorization.
- Aggravated violation of copyright and neighbouring rights
Article 227:  A penalty of three to five years' imprisonment shall be applied to anyone
who commits any of the acts described in Article 226 above in conjunction with any
of the following circumstances:
- Usurpation of the status of author of a work  or part of a work, or of the name of an
artist in a performance;
- substantial modification of the integrity of the work without the authorization of the
author;
- if the quantity or value of the unlawful copy is of particular economic importance.Similarly, Title IX (Offences Relating to the Socioeconomic Order), Chapter I (Offences
Relating to Industrial Property), establishes the following:
- Violation of the privileges of invention
Article 228:  The manufacture, import, possession, offer or introduction into the
market for industrial or trade purposes and without the consent of the owner of the
patent or utility model of the subject-matter thereof shall be punished by one to three
years' imprisonment.
The same penalty shall apply to anyone who for the same purposes uses an industrial
process or design that is protected by registration, without the authorization of the
holder or without the necessary licence, or offers or introduces into the market or uses
the product obtained directly by the registered process.IP/N/6/SLV/1
Page 20
- Violation of distinctive commercial signs
Article 229:  The reproduction, imitation, modification or use of any kind of a mark,
trade name, expression, advertising sign or any other distinctive commercial sign for
industrial or commercial purposes and without the consent of the holder, in violationof the rights appertaining to the industrial property registered in conformity with the
law, shall be punished by one to two years' imprisonment.
The same penalty shall apply to those w ho knowingly possess for the purposes of sale
or placing on the market, products or services with distinctive commercial signs
which, in accordance with the preceding paragraph, constitute an infringement of the
exclusive rights of the holder.
- Breach of trust
Article 230:  Anyone who takes possession of documents, carrier media or other
items with a view to discovering or revealing an economically assessable secret
belonging to an enterprise and involving economic advantages shall be punished by
six-months' to two years' imprisonment.
- Exposure or disclosure of an industrial secret
Article 231:  Anyone who, while legally or contractually bound to maintain
confidentiality, exposes or discloses an invention for which a patent application has
been filed, or an industrial or trade secret, shall be punished by six months' to two
years' imprisonment.
If the secret is used to the perpetrator's own advantage, the penalty shall be increased
by up to one third of the maximum.
If the perpetrator is a public official or employee and the act is perpetrated in the
course of his duties, he shall, in addition, be disqualified from such duties or
employment for six months to two years.
22. Which public authorities are responsible for initiating criminal proceedings?  Are they
required to do this on their own initiative and/or in response to complaints?
Under Article 193 of the Constitution, responsibility for initiating criminal proceedings,
ex officio or at the request of a party, lies with the Attorney-General of the Republic, and the Office of
the Attorney-General of the Republic is therefore re sponsible for monitoring the investigation of the
offence.
In this connection, Article 26 of the Code of Penal Procedure stipulates that intellectual and
industrial property offences shall be prosecuted at the request of a private person, in accordance withthe guidelines for criminal proceedings set forth in Article 19 of the Code concerning public right of
action upon request by a private person.
The above Article also states that the Office of the Attorney-General of the Republic shall be
responsible for initiating the publicly prosecutable penal action where the case is prosecuted uponprior request by a private person.IP/N/6/SLV/1
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23. Do private persons have standing to initiate criminal proceedings and, if so, who?
As mentioned in the previous replies, offences against intellectual and industrial property are
offences for which there is a public right of penal action upon request by a private person.
In this respect, Article 26 of the Code of Penal Procedure stipulates that such offences shall
only be prosecutable as criminal offences on application by the victim or, in case of disability, by the
victim's legal representative or guardian.
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- Imprisonment;
- monitory fines;
- seizure, forfeiture and destruction of infringing goods and materials and
implements for their production;
- other.
In addition to the offences mentioned in the reply to question 21 in relation to intellectual
property and industrial property, the following measures apply:
- Civil Liability, Articles 114 and 115 of the Penal Code
The commission of an act described by the law as an offence or misdemeanour gives
rise to civil liability.  The civil consequences of the offence, which shall be set forthin the judgement, include:
- Restitution of whatever was obtained as a consequence of the commission of
the punishable act, failing which, payment of the value thereof;
- reparation of the damage caused;
- payment of material or moral damages to the victim or the victim's family;- procedural costs.
Forfeiture of the product, profits and advantages deriving from the act, Article 126 of the
Penal Code
This provision stipulates that, without prejudice to such repayments and compensation as are
due for the damages resulting from the act, the judge or court shall order the forfeiture, on behalf of
the State, of the product, the profits and the advantages obtained by the convicted party as a result ofthe act.
This forfeiture shall include assets, rights and goods obtained by any means for the purpose or
as a result of the act, by the convicted party or any other person, natural or legal, on whose behalf the
convicted party has acted.IP/N/6/SLV/1
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Seizure, Article 127 of the Penal Code
This Article stipulates that, without prejudice to the rights of purchasers in good faith and for
valuable consideration or to such improvements or expenditures as have been made by acquirers free
of charge, the judge or the court shall order the confiscation or forfeiture on behalf of the State of theobjects or instruments used by the convicted party to prepare or facilitate the act.
25. Describe provisions governing the length a nd any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
Cost of the proceedings
Under Articles 172 and 181 of the Constitution, the judicial body has the exclusive authority
to judge and to enforce judgments, inter alia  in criminal cases, guaranteeing that the administration of
justice remains free of charge.
Similarly, criminal proceedings in respect of intellectual property and industrial property
offences are actionable publicly at the request of a private person, and the Office of theAttorney-General of the Republic is the institution responsible for conducting the proceedings, so that
no cost is in fact involved.
However, Article 95 of the Code of Penal Procedure stipulates that the victim may participate
in the proceedings through his representative, who, under Article 98 of the Code, must be an attorneyof the Republic.  In cases where the holder of the infringed intellectual property right chooses to
participate in the proceedings, he must pay the fees of his representative.
Duration of the proceedings
Criminal proceedings are dealt with in Book Two of the Code of Penal Procedure.Article 274 of the Code of Penal Procedure stipulates that the duration of the investigation
stage shall not exceed a maximum of six months fo llowing the initiating order.  The purpose of this
stage is to prepare the public hearing by gathering together all of the elements on which to base the
accusation of the prosecutor or the complainant and to prepare the defence of the accused.
However, Article 379 of the Code of Penal Procedure stipulates that during the time between
the initiation of the proceedings and the preliminary hearing it is possible to request application of the
accelerated procedure provided for in Book Three of the Special Procedures, Title I, when the
following conditions are satisfied:
- The prosecutor requests a custodial or prison sentence of up to three years;
- the accused admits the act and agrees to the application of such procedure, without
prejudice to the inclusion in his pleading of such other facts or circumstances as he
may consider appropriate;
- the counsel for the defence certifies that the accused has freely given his consent;
- the victim or complainant has given his consent.  If not, the judge shall examine the
reasons put forward and may proceed with the accelerated procedure even without the
consent of the victim or complainant.
In addition to the above, Book Two, Title II (The Trial) does not establish any maximum
duration for this stage.IP/N/6/SLV/1
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Finally, Book IV (Procedural Acts), Chapter VI  regulates matters concerning the duration of
procedural acts and deadlines for settlement.
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