WORLD TRADE
ORGANIZATIONIP/N/6/PAN/1
23 June 1998
(98-2518)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  Spanish
CHECKLIST OF ISSUES ON ENFORCEMENT
Replies from Panama
Civil and administrative procedures and remedies
(a) Civil and judicial procedures and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
In civil jurisdiction, Article 141 of Law 29 of 1996 establishes the following courts:
1.1     Three (3) civil circuit courts, known as the Eighth, Ninth and Tenth Courts, of the
First Judicial Circuit of Panama;
1.2 a circuit court in Colón;1.3 a civil circuit court in Coclé, known as the Coclé Second Court;1.4 a civil circuit court in Chiriquí, known as Chiriquí Fourth Court;
1.5 a civil circuit court in Los Santos, known as Los Santos Second Court.
For budgetary reasons, only the Eighth and Ninth Courts of the civil circuit of the First
Judicial Circuit of Panama were actually established.  But the additional paragraph to Article 141 of
Law 29 of 1996 reads as follows:
"Additional paragraph. The procedural rules established in this Law will take effect
immediately.  However, proceedings under paragraph 3 of this Article which have been initiated
before the courts provided for in this Law are established, will be referred to such courts but will be
governed by the law in force at the time they were initiated.  Proceedings initiated after theestablishment of the above-mentioned courts shall be governed solely by this Law.
Accordingly, the above-mentioned courts ha ve jurisdiction, among other things, to hear
intellectual property-related disputes, including those pertaining to copyright and related rights,
product or service marks and patents pursuant to paragraph 3 of above-mentioned Article 141.
Such proceedings are brought before the Third Higher Court of Justice, First Judicial District,
for appellate review, as specified in Article 143 of Law 29 of 1996.IP/N/6/PAN/1
Page 2
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?
A right holder protected by Law 35 of 10 May 1996, on industrial property, by Law 15 of
8 August 1994, on copyright and related rights, or by international agreements on such matters signed
by the Republic of Panama, has standing to assert intellectual property rights.
Again, Article 107 of Law 35 of 1996 establishes in connection with trademarks that
"…anyone may submit an application to oppose registration of the trademark" and Article 77 states,
in the case of industrial designs, that "any interested party may submit to the appropriate court an
application opposing the registration applied for" (Articles 117, 127, 128, 129 of Law 15 of 1994).
Such persons must be represented by a lawyer (Article 608 of the Judicial Code) except for
informal participation to act without authority, as covered by Article 631 of the Judicial Code.  There
is no requirement for mandatory personal appearance before the court by the right holder, other than a
court order issued on application by one of the parties for a sworn statement to be made by the other
party, a situation that is covered by Article 890 of the Judicial Code, or when the party intends to
present a power of attorney in person, and does not wish to do so before a notary (Article 614, (2) and
(3) of the Judicial Code).
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?
Further to Article 173 of Law 29 of 1996,
"Any party may request the other to disclose information and supply documents, by
any of the following means:
1. Sworn statements by means of  oral or written questions;
2. written questions or questions directed to the parties;3. production of documents and other objects;4. permission to enter land and other premises for visual inspections and other
purposes;
5. physical or mental examinations;6. request for acknowledgement of facts, things and documents.They may also obtain assurance of evidence by the arrangements set out in the
Judicial Code".  (Articles 803-818 of the Judicial Code).
Again, Article 174 of Law 29 of 1996 establishes that:
"Unless the court has established limitations, any party may require the others to
supply it with or show information, things or documents in connection with any
non-confidential matter that is conducive to the purpose of the dispute and is related
to the claim or defence by any of the parties …".
These rules do not apply to proceedings in connection with trademarks which are governed by
Law 35 of 1996;  they apply only to copyright pr oceedings, which are governed by Article 145 of
Law 29 of 1996.IP/N/6/PAN/1
Page 3
Furthermore, under Article 880 of the Judicial Code, the court, ex officio or at the request of a
party, may require any public office, state or decentralized body or any bank, insurance company or
public utility to provide reports deemed relevant, for the purpose of verifying the statements by the
parties.
Under Article 189 of Law 35 of 1996, judicial inspections may be performed for places,
documents or things with a bearing on points at issue in the proceedings.
4. What means exist to identify and protect confidential information brought forward as
evidence?
Articles 175 and 176 of Law 29 of 1996 cover this matter.  First, with regard to information
on insurance contracts, it is established that information pertaining to the application for insurance
which forms part of the contract cannot be obtained.
Article 175:  "… If broader information or further documents are requested, the court may
order this to be done by other means that the court deems appropriate, subject to the restrictions on thescope of the disclosure and to the provisions on fees and expenditures" (Article 175, third paragraph,
of Law 29).
Again, Article 176 of Law 29 specifies that the court may issue decisions at the request of the
party which has been asked to disclose information in order to protect the party againstinconvenience, humiliation, unwarranted cost or any other abuse, including a decision that:
"1. The disclosure should not be permitted in view of its manifestly outrageous nature, or
a surety should be required by the court;
2. disclosure should be permitted only under specific terms and conditions, including
date, place and time;
3. disclosure should be made only by a means different from the one requested;
4. certain matters should not be investigated or the scope of the disclosure should be
confined to certain matters;
5. disclosure should be made only in the presence of persons appointed by the courts;6. once a statement outside the proceeding has been sealed, it may be opened only by
order of the court;
7. a trade secret or other commercial research, discoveries or information of a
confidential nature should not be divulged;
8. the parties should submit to the court, at the same time, specific documents or
information in sealed envelopes, to be opened only on the order of the court."
5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudentially, for their use:
The following situations may arise in connection with intellectual property:IP/N/6/PAN/1
Page 4
(a) Injunctions
As far as misuse of intellectual property rights is concerned, Article 165 of Law 35 of 1996
establishes penalties to be applied by the court or anyone engaging in the kinds of conduct
enumerated in Article 164 of Law 35 of 1996.  These measures include a fine of B 100,000 to
B 200,000;  suspension of the right to engage in trade for a period of three months;  and suspension orcancellation of the operating permit.
Article 164 of Law 35 of 1996:  "The manufacturer, introducer, retailer and anyone who, in
one way or another, has taken part in the marketing, shall be held responsible for misuse of a patent,
utility model, industrial design, trademark, trade name or advertising slogan or sign.  Consequently,
the appropriate penalties shall apply to the following:
1. Anyone manufacturing or processing goods covered by a patent or a registered utility
model now, without the consent of the right holder or without the relevant licence;
2. Anyone offering for sale or circulating products covered by a patent or by a registered
utility model, in the knowledge that they were manufactured or processed without theconsent of the patent owner or without the relevant licence;
3. Anyone using patented processes without the consent of the patent owner or without
the relevant licence;
4. Anyone offering for sale or circulating products which are the result of the use of
patented processes, in the knowledge that they were used without the consent of the
patent owner or a person with a licence;
5. Anyone reproducing industrial designs protected by a register, without the consent of
the right holder or without the relevant licence;
6. Anyone counterfeiting or altering in  any way a trademark or trade name;
7. Anyone who, with his own trade products or articles or in services, labels or trade
notices, uses a trademark or trade name identical or substantially similar to one
belonging to someone else;
8. Anyone who, in any way, uses trademarks or trade names which clearly manifest an
intent to imitate in some way a trademark or trade name registered in someone else's
name;
9. Anyone selling, offering for sale or consenting to sell or circulate goods or services
bearing counterfeit or fraudulently applied marks, and anyone who distinguishes his
trade establishment or factory by using labels, paper and other signs bearing
counterfeit or fraudulently applied trademarks or trade names;
10. Anyone marking or causing to mark goods with counterfeit names or labels in
connection with their nature, quality, quantity, number, weight or measurement or the
country of origin or manufacture or using registered trademarks or equivalent initials,
i.e. M.R. or R, when the mark does not fall under the preceding paragraphs;
11. Anyone who knowingly sells or offers to sell goods or services with false particulars,
as referred to in the preceding paragraph;IP/N/6/PAN/1
Page 5
12. Anyone who, in any way, uses a mark for the purposes of comparison with another
mark for which the products or services are similar or identical, solely to diminish or
destroy the value of the sign or trade value of the said mark, thereby prejudicing the
owner.
Similarly, the court may, in proceedings for infringement of protected intellectual rights,
order the cessation of acts infringing the right, compensation for damage suffered (Art. 117 of Law 15
of 1994), measures to avoid continuation of the infringement, and publication of the ruling in the
Official Gazette.
It may order prompt precautionary measures, wh ich are detailed in Article 172 of Law 35 of
1996, for industrial property purposes, and Articles 117, 118, 119 and 120 of Law 15 of 1994 for
intellectual property.
In the preliminary investigation, the official conducting it may provisionally seize the goods
under investigation and the means used to commit the punishable act.
The court may order the Directorate-General of Customs, whenever it learns in any way of
goods customs that possibly infringe the law, to in spect and even retain such goods.  Such an order
may also be issued to the authorities of the Colón Free Zone and other State-administered free zones
or processing areas.
(b) Damages, including recovery of profits, and expenses, including attorney's fees:
Those pertaining to claims by the parties:  the claimant on the basis of Article 169,
paragraph 2, of Law 35 of 1996, and the defendant, if prejudiced by any measure adopted under
Title VII of Law 35 of 1996 or Law 15 of 1994, for which a security has previously been posted for
such purposes.
In rulings on civil actions brought under Article 167 of Law 35 of 1996 or Law 15 of 1994,
payment of costs may be ordered for the party against which the ruling is handed down.
(c) Destruction or other disposal of infringing goods and materials/implements for their
production.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holders of the identity of the third persons involved in the
production and distribution of the goods or services found to be infringing and of their channels
of distribution?
In the preliminary investigation referred to in Article 173 of Law 35 of 1996, the identity of
third parties presumed to have participated in the unlawful act may be revealed.  As specified in
Article 175, the right holder protected in the Republic of Panama can play an active part in the
preliminary investigation and in the criminal proc eedings if he fulfils the appropriate conditions.
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?
The laws regulating this matter include a number of securities to be posted by the allegedly
affected right holders in order for them to take action.  For example:IP/N/6/PAN/1
Page 6
(a) Article 177 of Law 35 of 1996 establishes that: " … The right holder shall contest in
writing if he is opposed to the introduction or transit of the goods retained … but he is
opposed, he shall be required to post a security."
(b) Article 175 of Law 35 of 1996 establishes the requirement of a surety of not less than
B 2,000 and not more than B 5,000 for the protected right holder to act informally inconnection with a preliminary inquiry and criminal proceedings.
(c) Article 172 of Law 35 of 1996 stipulates that "The court may order appropriate
precautionary measures to ensure enforcement of the judgement in the case", and
goes on to say that "If the action for infringement is not brought within ten days
following the introduction of a precautionary measure, such measure shall
automatically be without effect and the actor shall be subject to payment of
compensation for any damage he has caused."
(d) Again, Article 171 of the same law establishes a requirement to post a security before
bringing any action for infringement of an industrial property right.
(e) Intellectual property is governed by the parameters of the Judicial Code (Article 117,
Law 15 of 1994), which requires that a security be posted before a precautionary
measure is taken, so as to answer for any damage and costs occasioned, and this is
also done in Article 119 of Law 15 of 1994.
As for remedial measures applicable to public authorities or officials that have wrongfully
enjoined defendants, the provisions of the Judicial Code, namely Articles 441 to 455, concerning
judicial ethics, apply.
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Industrial property proceedings are reckoned to last approximately five months, a period
which depends, among other things, on the following:
(a) Delays accumulated in each court;
(b) the file has not been initiated by a party acting on an informal basis;(c) there is no need to waste time in issuing a summons for the defendant;(d) there are no new grounds for hearings or requests to suspend proceedings;(e) there are no associated lawsuits;(f) evidence from abroad is not required.
It is difficult to determine the duration of other cases in these courts, since each particular
case may depend on a series of circumstances relating, among other things, to cooperation from the
parties and from law officials.
As for the provisions on the periods to be set in intellectual property proceedings - provisions
that affect the duration of this kind of case - Articles 183, 185, 187 and 188 of Law 35 of 1996
establish a period of referral within five days, and under Article 191 it is possible to issue a ruling at
the hearing, failing which it is issued within a pe riod of 20 working days.  In all other matters, the
provisions of the Judicial Code are followed.IP/N/6/PAN/1
Page 7
Intellectual property proceedings are governed by Article 145 of Law 29:  they are oral
proceedings, with an expeditious preliminary hearing.
Article 145:  Procedural rules.  The proceedings referred to in Article 141, except for special
proceedings, shall be governed by the following rules:  1.  The proceedings shall be oral.  The
order of referral shall indicated the date of the hearing, which shall be notified in person;
2.  The period for transmittal of the claim is ten (10) days.  In the order transmitting the claim,
the court shall indicate the date of the preliminary hearing, in order to consider (a) the
desirability of specifying and simplifying the points at issue;  (b) the necessity or desirability
of correcting the written submissions by the parties;  (c) the possibility of the parties
acknowledging the facts and documents and thereby making it unnecessary to produce
specific evidence;  (d) limiting the number of expe rts;  (e) indicating the date and time for the
parties, together with their evidence, to appe ar at the regular hearing;  (f) other matters,
consideration of which may help to expedite the proceedings.  All of the above shall
determine the facts to be examined;  3.  The parties may, up to three (3) days before the
hearing  on the merits, ask the court to summon witnesses, specifying their place of residence
or office, in which case the court shall use the requisite compulsory measures;  4.  The hearingshall be held with the parties in attendance;  if none appears, despite a second summons, a
reasoned ruling shall be issued on the evidence adduced or accompanying the complaint and
the challenge or any evidence the court deems appropriate to add.  If the evidence cannot be
considered on the day indicated for the hearing, it shall be examined on the next working day;
5.  The court may consider evidence ex officio and, in any event, shall summon the parties foran inter partes check of the proceedings, in accordance with the rules of the Judicial Code;
6.  Preliminary issues shall be decided in the judgement, except where the Judicial Code
expressly authorizes a special procedure or where, by their very nature, they can and should
be resolved immediately they are formulated.  In the first instance, once they are formulated,
they shall be transmitted for three (3) days to the adverse party, and in the second instance,they shall be resolved summarily and without any appeal;  7.  The judge must be present
during the whole of the hearing, failing which his superior shall automatically or at the
request of the party or of the Department of  Public Prosecutions, fine him not less than
25 Balboas (B 25) and not more than 100 Balboas (B 100);  8.  Postponement of the hearing
shall be allowed only once and on reasonable grounds invoked by each party before thehearing starts.  Otherwise, the hearing shall be held on the date indicated, with any of the
parties in attendance;  9. Only a ruling ending the case, a ruling making it impossible to
continue the proceeding or a ruling ordering provisional relief or precautionary measures is
open to appeal.  An appeal against the judgement shall be granted with suspensive effect and a
ruling ordering provisional relief or precautionary measures with devolutive effect, and orders
putting an end to, or making it impossible to continue with, the proceeding, with deferred
effect;  10.  The procedure for appeals shall be in keeping with Section 8 of Chapter I,Title XII, Book II of the Judicial Code.
(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 authorities which have jurisdiction over IPR infringement cases.
The National Copyright Directorate, part of the Ministry of Education of Panama, established
in 1995 under Law 15 of 8 August 1994, on copyright and related rights, is the authority with
jurisdiction over cases of infringement of copyright and related rights in the administrative context
(Article 2(2) and Article 109 of Law 15 of 8 Au gust of 1994, on copyright and related rights).IP/N/6/PAN/1
Page 8
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?
The persons having standing to assert copyright and related rights are the owners and right
holders who have legal capacity to engage in such proceedings.
Authors, as natural persons may, in their personal capacity or through legally appointed
proxies, make complaints to the National Copyright Directorate, about administrative infringements
by users of protected works, interpretations and productions.
National companies or corporations holding copyright and related rights, or foreign
companies or corporations domiciled in another country but with permanent business or
establishments in Panama, must establish in the place or places where they have such business proxiesor agents able to represent them under the terms of Article 589 of the Judicial Code, for which
purpose they shall comply with the legal provisions on companies or corporations.
Mandatory appearance by the right holder before the National Copyright Directorate is not
required.
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?
Neither the copyright law nor any other legal provision enables the National Copyright
Directorate to order a party to a proceeding to produce evidence which lies within its control.
However, in this case Article 43.1 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) is applied, since this Agreement, like the others that go to make up the
Marrakesh Agreement, was adopted under Law 23 of  15 June 1997 and is immediately applicable,
pursuant to the procedures established by the Constitution in Articles 4 and 153 (3).
9.4 What means exist to identify and protect confidential information brought forward as
evidence?
Neither the Copyright Law nor any other legal provision contains rules pertaining to
identification and protection of information brought forward as evidence in administrative
proceedings.  However, in this case Article 43 of the TRIPS Agreement, approved under Law 23 of
15 July 1997, applies.
Moreover, the Regulations to the Copyright and Related Rights Law, establish that the
Directorate shall preserve the confidential nature of computer programs.  However, the authors or
holders may be required to provide the requisite information to access the computer program'ssequence of instructions, contained in the magnetic support, in cases of arbitration submitted to the
Directorate or on a court order (Article 66, (10), of Executive Decree 261 of 3 October 1995).
Article 837 of the Administrative Code establishes that anyone is entitled to copies of
documents in public offices, provided they are not confidential.  It also stipulates that no employeemay give an ordinary copy of a document of a confidential nature or an authentic copy of any
document, without an order by the chief of his office.
9.5 Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use.
Pursuant to Article 75 of the Regulations to the Copyright and Related Rights Law, adopted
under Executive Decree 261 of 8 of August 1995, an order may be issued for precautionary measures,
as established in Article XII of the Inter-American Convention on Copyright on Literary, ScientificIP/N/6/PAN/1
Page 9
and Artistic Works, signed in Washington in 1946, namely, seizure, ex officio or at the request of the
injured right holder, of all publications or reproductions, and suspension of any public performance of
theatre works or musical compositions in breach of copyright, at the request of the injured right
holder.  These measures may be adopted without prejudice to any relevant civil and criminal actions.
The Third (Administrative) Chamber of the Supreme Court of Justice, in an administrative
claim to declare Article 75 of Decree 261 of 1995 null and void on the grounds that it is unlawful,
recently handed down a judgement of 22 October 1997 stating that the provision is not illegal
inasmuch as Article 4 of the Constitution requires the Republic of Panama to abide by the rules of
international law and, consequently, it does not infringe provisions of Law 15 of 1994 on Copyright
and Related Rights.  Moreover, the Supreme Court recognized that Article 128 of the Law establishes
a special regime of protection for foreign works whereby international agreements and copyright and
related rights take preference over the Panamanian legal regime.
Furthermore, Article 114 of Law 15 of 1995 stip ulates that the National Directorate, either
ex officio or at the request of an interested party, shall proceed to suspend any kind of works or
interpretations protected by the Law in question when the person responsible fails to demonstrate in
writing that he is an assignee or licensee of the relevant right and method of utilization, withoutprejudice to the interested party's power to request the judicial authorities to take definitive measures
falling within their competence.
The National Directorate has powers, among other things, to impose fines of B 1,000 to
B 20,000 (equivalent to US$) for infractions which "do not constitute offences" (in other words,administrative fault).  In the event of repetition, namely repetition of an act of the same kind within a
period of one (1) year, the fine may be doubled, as specified in Article 109 (7) and Article 113 of
Law 15 of 8 August 1994.
The National Copyright Directorate may also impose sanctions on companies, ranging from a
warning (Article 109 (5) and (6) of Law 15 of 1994 and Article 72(5) of Decree 261 of 1995),
whether public or private, a fine of B 1,000 to B 20,000 (equivalent to US$), suspension of the
operating permit and cancellation of the operating permit.
The National Copyright Directorate may also intervene for the purpose of conciliation and
arbitration in disputes concerning utilization, by ex parte  request, and monitoring and inspecting
activities that arise in connection with the use of copyright and related rights (Articles 109(5) and (6)
of Law 15 of 8 August 1994 and Article 72(5) of Decree 261 of 3 October 1995).
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 National Copyright Directorate does not have the authority to exercise the powers
established in Article 47 of the TRIPS Agreement, inasmuch as this rule applies in the event of
criminal infringements and the Directorate has jurisdiction only over administrative infringements.
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?
Neither the Copyright and Related Rights Law nor any other legal provision authorizes the
National Copyright Directorate to order indemnification of the defendant in the cases provided for in
Article 48 of the TRIPS Agreement.  However, it can impose disciplinary sanctions such as transfer or
removal of officials for proven incompetence in a period of not less than a year in the performance ofIP/N/6/PAN/1
Page 10
their duties or in acts inconsistent with the ethics to be observed by an official, pursuant to the
procedure established in Law 47 of 1946, as supplemented and amended by Law 36 of 6 July 1995,
on the organization of the Ministry of Education, and Executive Decree 618 of 9 April 1952.  Abuse
of the enforcement procedure by officials of the National Copyright Directorate, since it forms part of
the Ministry of Education, is covered by the above-mentioned faults, except in cases of acts carried
out in good faith in the administration of the Law, as stipulated in paragraph 2 of the Article.  Withoutprejudice to this, an official who commits a disciplinary fault may also incur criminal liability for
abuse of authority, pursuant to the terms of Article 336 of the Criminal Code.
9.8 Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their costs.
Neither the Copyright Law nor any other legal provision regulates the duration and cost of
administrative proceedings.  It is not possible to determine accurately the real length, for in
connection with an administrative claim against Article 75 of the Regulations to the Copyright and
Related Rights Law (Executive Decree 261 of 3 October 1996, under which the National Copyright
Directorate may order precautionary measures) the Third (administrative) Chamber of the Supreme
Court of Justice decided to suspend the effects of the provision in an Order dated 12 July 1996 (theyear in which the Directorate started actions against pirated goods) and, consequently, all proceedings
were suspended.
Recently, the Supreme Court of Justice, in Judgement 22 of October 1997, declared that
Article 75 of Decree 261 of 1995 is not illegal and it revoked the precautionary suspensive measure,  astep which has made it possible to resume the cases before the Directorate.  However, since the
Supreme Court's recent decision, no claim has been made to the Directorate and hence the real length
of proceedings cannot be determined accurately. However, it can be estimated as five (5) to six
(6) months.
As to costs, it should be noted that the National Copyright Directorate has not so far
established any rates or charges for its services in connection with administrative proceedings.
Provisional measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order and the
legal basis for such authority.
Provisionally, the Court may order the following precautionary measures, on the basis of
Article 172 of Law 35 of 1996:
"1. Immediate cessation of infringing activities;
2. Retention or depositing of the infringing articles and of the means exclusively
intended to carry out the infringement;
3. Suspension of imports or exports of articles or means, as referred to in the previous
paragraph;
4. Posting, by the alleged infringer, of a security or other guarantee, for payment of any
damages;
5. Suspension of the operating permit issued by the administrative authorities of the
Colón Free Zone, a free zone or an export processing zone in Panama.  SuchIP/N/6/PAN/1
Page 11
suspension shall be lifted by a bank, monetary, insurance or State public debt
security.  The amount of the security shall be in proportion to the estimated damage
caused;
6. Retention or depositing by the competent customs authorities of the infringing goods
or articles when they are in customs or in transit in any part of Panamanian territory."
In addition, the precautionary measures under the Judicial Code and Law 15 of 1994,
summarized in reply No. 5, apply.
11. In what circumstances may such measures be ordered inaudita altera parte ?
Article 171 of Law 35 of 1996 establishes that:  "… Precautionary measures shall be arranged
inaudita altera parte,  in a separate file, and the court shall proceed promptly;  it may also order that
the party requesting the measure post a security, …".  Article 523 of the Judicial Code states:  "To
prevent the effects of the proceeding from being ineffectual and the defendant from transferring,
alienating, hiding, impairing, encumbering or removing any moveables or immoveables in his
possession, the claimant may, before or after the claim is submitted, request at any stage in theproceedings, whether regular or special, that they be placed in the hands of a depositary to be
designated by the court.  Once the request for seizure is received, the court shall, at its discretion,
establish the amount of the security, in light of the value and nature of the goods and the property to
be seized, the sum for which the seizure is requested and possible damage, so that the security is
neither derisory or excessive.  The security shall cover any damage or prejudice that may be caused."
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 legitimate
interest of the defendant.
Measures of this kind are adopted in an action for infringement brought under Article 171 of
Law 35 of 1996, Article 117 of Law 15 of 1994 and Article 523 of the Judicial Code, in an application
made to the court by the allegedly affected right holder.  The court shall enforce them immediately
and without further formalities and may order the posting of a security by the relevant party.
13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
The duration of each proceeding is determined by each particular case.  There is no fixed
period.  Similarly, the proceeding's cost and the lawyers' fees vary from case to case, (the minimum
rates for trademark proceedings B 500;  intellectual property proceedings B 350, approved by law.)
(b) Administrative measures
14. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
The provisional measures that may be ordered by the administrative authorities consist of the
precautionary measures referred to in the reply to question 9.5.
14.1 In what circumstances may such measures be ordered inaudita altera parte?
The National Copyright Directorate has the authority, ex officio, to order the precautionary
measures described in the reply to question 9.5 above.  Similarly, it may make inspections of users of
protected works, interpretations and production.IP/N/6/PAN/1
Page 12
14.2 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 legitimate
interests of the defendants.
In order to initiate the process of adopting provisional measures in the event of administrative
infringements consisting of the use of protected works and productions without first obtainingauthorization from the right holder, either by a licence or by written assignment of rights, it is
necessary for the author or copyright-holder, through a legal representative in the case of a legal
person, to first make a claim to the National Copyright Directorate against the alleged infringer,
except when the Directorate acts ex officio.  When the claim is accepted, an inspection is ordered of
the place where the infringing activity is carried out.  An order is issued for any precautionary
measures and in the case of foreign works and productions, as established in Article 75 of Decree 261
of 1995.  These measures consist of seizure of unlawful reproductions or publications.  If evidence isavailable that the act referred to in the claim has been committed, the Directorate shall notify the
alleged infringer, summoning him to appear within fifteen (15) days to submit evidence in his own
defence.  After evaluating the burden of evidence brought forward, the Directorate may decide in a
substantiated decision to impose a fine of one thousand to twenty thousand balboas (equivalent to
US dollars) depending on the seriousness of the wr ongful act.  An appeal for review against this
decision lies with the National Copyright Director and final appeal with the Minister of Education.  In
each case, the interested party shall have five (5) working days as from notification.  Once the ruling
is final, an authentic copy is forwarded to the Directorate-General of Revenue of the Ministry of
Finance for effective collection of the fine.  The Directorate shall maintain the provisional measures
throughout the proceeding and, if it acquires evidence or proof of the alleged commission of theoffence against copyright it shall forward all the relevant data and report the matter to the Department
of Public Prosecutions so as to proceed with the preliminary investigation and subsequent judgement
of the guilty party or parties, as stipulated in Article 2026 of the Judicial Code.  Consequently, where
appropriate it will suspend the effects of the preventive measure and also forward all the material
gathered to the Department of Public Prosecutions.
If any official of the National Copyright Directorate abuses any of these measures to the
detriment of the person against whom the claim is laid and does not act in good faith in discharging
the law, the Director shall impose the sanctions described in the reply to question 7.
14.3 Describe provisions governing the length and cost of proceedings. Provide any available
data on the actual duration of proceedings and their cost.
The information on the duration and cost of proceedings is given in the reply to question 9.8.
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 trademark or pirate d copyright goods as defined in the TRIPS
Agreement (footnote to Article 51).  Specify, together with relevant criteria, any importsexcluded from the application of such proce dures (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?
1
                                                     
1In Panama border measures are the responsibility of the Intellectual Property Departments of the
Directorate-General of Customs and of the Administratio n of the Colón Free Zone, and so the replies have been
divided up in order to cover each of these intellectual property departments.IP/N/6/PAN/1
Page 13
Directorate-General of Customs
In Executive Decree 123 of 26 November 1996 regulating the powers of the
Directorate-General of Customs of the Republic of Panama in the field of intellectual property, no
specification is made as to the goods for which release into free circulation can be suspended.
Similarly, non-application of the procedure is not specified for any import.
The Decree in question establishes the possibility of an appeal in order to secure broad
protection in respect of imported goods which infringe any provisions of the laws on industrial
property rights, copyright and related rights.  There is no rule under which the procedure can be
applied to goods for export.
Administration of the Colón Free Zone
It does not have authority to suspend release of goods in the free zone.  This falls under the
jurisdiction of the customs authorities.
However, the Intellectual Property Department does have the authority to prevent subsequent
traffic in the goods which have entered the Colón Free Zone.  The goods retained by the Free Zone
Intellectual Property Department include all those  which have violated intellectual property rights,
meaning industrial property rights and copyright.
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 (rights of
inspection and information) been implemented.
Directorate-General of Customs
The principal features of the customs procedure for retaining imported goods consist of:
(a) Action by order of the competent authority:  A document is drawn up showing the
name of the authority issuing the instruction, the date, the description of the goods, the inventory, and
particulars of the consignee.  Once the goods have been retained, they are made available together
with the documents and the file, to the authority issuing the order.
The goods will be placed where the authority indicates for such purposes.
A period or time-limit for which the authority orders suspension or release is not established.
Requirements:  Appropriate identification of the authority ordering the precautionary
measure, and adequate description of the goods and the customs post involved.
(b) Action on complaint by a private party:   The right holder or his legal
representative may ask the customs authorities to retain goods. For such purposes, they shall supply
sufficient data to locate the goods, such as a description, port of entry, container, etc.  An initial
security of B 2,000 shall be attached to the application.
If the information proves false, the security will be held for a period of three months, for the
purpose of possible damages.  If the information is correct, the complaint shall be notified to the
consignee by an order issued for five working days and it shall be published in a national newspaperIP/N/6/PAN/1
Page 14
for two consecutive days.  On completion of the notification formalities, the file and the goods shall
be forwarded to the Department of Public Prosecutions.
Requirements:  An application submitted to the customs by the right holder or his legal
representative, the posting of an initial security of B 2,000 before the goods are retained, notification
to the consignee and the parties.
(c) Ex officio action:   The Industrial Property Law stipulates that, when they learn in
any way that the suspect goods are in breach of the rules concerning intellectual property rights, the
customs authorities shall act ex officio .  To this end, the regulations specify that, once the goods have
been retained, five working days shall be available from the date of the retention order for the purpose
of notifying the owner of the protected right and the consignee.
Notifications shall be made by a public summons for five working days at the offices at which
the goods have been retained, at the Intellectual Property Department, at the Directorate-General for
Industrial Property Registration, or at the offices of the National Copyright Directorate, depending on
the nature of the right infringed.
Interested third parties shall be notified by publication of the public summons for two
consecutive days in a national newspaper.  On completion of the notifications, samples of the articles
shall be given to the right holder if he so requests.
The amount of the security to be posted shall be established and the samples requested will be
provided where appropriate.  In a period of five working days following receipt of the samples the
person concerned shall submit a document in writing to the customs office at which the goods are
retained, opposing release of the goods.  Failing opposition, the goods shall be released immediately.
The security shall be not more than 50 per cent of the value of the goods retained.
Requirements:  The customs authority detects the possible infringement of intellectual
property rights of its own accord, notification to the right holder, consignee and third parties,
submission of a written document to oppose release of the goods, posting of a security in accordance
with the value of the goods.
Where samples have not been requested, the period of five days shall be reckoned from the
completion of the notification.
Once the security and the written opposition have been submitted, the file with the goods and
the security shall be forwarded to the Department of Public Prosecutions for the preliminary
investigation.
Administration of the Colón Free Zone
(a) Action by order of the competent authority:  Any authority which, in accordance
with the law, is entitled to order the retention of goods passing through the Colón Free Zone, on a
report of an infringement of intellectual property rights, may order the Colón Free Zone to inspectand/or retain the goods.  Once they are retained, the Colón Free Zone shall make them available to the
competent authority together with the file and a copy of the order.  The goods shall be deposited at the
place indicated by the authority for such purposes.
(b) Action on complaint by a private party:  The Colón Free Zone shall inspect and/or
retain goods in such cases after the complainant provides information containing a description of the
goods, particulars of the consignee or holder, container, port of entry and departure and/or any other
data facilitating inspection of the goods.  The complaint as such does not require any formalities.IP/N/6/PAN/1
Page 15
The complainant shall post a security of B 2,000 payable to the Treasury when the application
is made and before the goods are retained.
(c) Ex officio action:  The Administration of the Colón Free Zone, provided it has good
grounds for concluding that intellectual property rights are being violated, may order inspection
and/or retention of goods passing through the area in which it operates.  If, after the inspection orretention had been carried out, no news is received from the holder of the protected right within a
period of five (5) working days for the public summons (itself lasting five days) it shall notify
interested third parties by publication for two (2) consecutive days.  If no interested person appears,
the goods may not be retained for more than thirty (30) days.
In the event of opposition to goods, the owner of the protected rights shall post a security
payable to the Treasury of not more than 50 per cent of the valuation of the retained goods and/or themeans used to carry out the infringement.
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?
There is no rule regulating the duration of such proceedings, except for the fact that the goods
may not be retained for more than thirty (30) days if no interested party presents itself.  Apart from
the posting of the security, no further cost is specified.
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?
Please refer to the reply to question 16.
19. Describe the remedies that the competent au thorities have the authority to order at any
criteria regulating their use.
The answer to this question is set out in the replies to questions 15 and 16.
Criminal procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
Cases of criminal infringement of intellectual property rights have to be divided into
"Offences against Copyright and Related Rights" and "Offences against the Rights of Others", and the
latter should be taken as pertaining to industrial property.
Pursuant to Articles 159 and 174 of the Judicial  Code, the courts which have jurisdiction over
cases of "Offences against Copyright and Rela ted Rights", involving 30 days to 18 months'
imprisonment, are the criminal municipal courts of the relevant geographical areas.
Pursuant to the same legal provisions, the courts which have jurisdiction over cases of
"Offences against Copyright and Related Rights", involving two to four years' imprisonment, are the
criminal circuit courts for the relevant area of the country.
Under Article 159(15) of the Judicial Code, th e courts which have jurisdiction over cases of
"Offences against the Rights of Others",  regardless of the penalty, are the criminal circuit courts of
the relevant territorial sectors.IP/N/6/PAN/1
Page 16
21. In respect of which infringements of which intellectual property rights are criminal
procedures and the penalties available?
In regard to what are known as "Copyright and Related Rights", Articles 121, 122 and 123 of
the Law 15 of 8 August 1994 establish the types of  conduct which are characterized as criminal and
entail criminal proceedings and penalties.
In regard to what is known as "industrial property", Articles 383, 384 and 385, contained in
Chapter IV ("Offences against the Rights of Others") of Title XII ("Offences against the Economy"),
of Book II ("Offences") of the Criminal Code (L aw 18 of 22 September 1992) describe the activities
which are classed as offences and entail criminal proceedings and penalties.
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 the Constitution and the Judicial Code, th e public authorities responsible for initiating
criminal proceedings are the Agents of the Depa rtment of Public Prosecutions, depending on the
jurisdictional area.  The Agents of the Department of Public Prosecutions institute criminalproceedings in the Republic of Panama.
All matters pertaining to offences against intellectual property rights are liable to prosecution
ex officio, even without a complaint, if the Agent of  the Department of Public Prosecutions learns, by
any means whatsoever, that a wrongful act of this type has been committed.  This is in conformitywith the second paragraph of Article 173 of Law 35 of 10 May 1996.
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
Under the second paragraph of Article 173 of Law 35 of 10 May 1996, criminal proceedings
for offences against intellectual property rights are instituted ex officio,  for which reason no
accusation by a private person (through a lawyer) or complaint (formulated by the person affected) is
required.  However, a private accusation or complaint does not nullify or hinder the criminal
proceeding;  it simply is not an essential requirement.
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
30 days to 18 months' imprisonment (Offences ag ainst Copyright and Related Rights, Article 21
of Law 15 of 8 August 1994)
Improper use of the title of a work.
Changing a work.Publicly communicating a protected work in c ontempt, by any method or procedure, in the
original or in a changed form, either wholly or in part.
Using examples of the work, including the distribution of unlawfully reproduced sound
recordings.
Retransmitting a radio broadcast by any wire or wireless means.Reproducing or distributing, as the assignee or licensee authorized by the respective right
holder, a number of copies higher than permitted under the contract;  or communicating, reproducing
or distributing the work after expiry of the agreed period of authorization.IP/N/6/PAN/1
Page 17
Falsely attributing the original or derived status of holder of any of the rights recognized by
law and, by such improper attribution, securing from the competent judicial or administrative
authority the suspension of the communication, reproduction or distribution of the work,
interpretation or production.
Making false declarations of statements of income, the repertoire used in identifying authors,
the authorization obtained, the number of copies or any other falsification of data likely to cause
injury to any of the lawfully protected right holders.
2 to 4 years' imprisonment (Offences against Copyright and Related Rights)
Reproducing, in original or modified form, w holly or in part, lawfully protected works
(Article 122 of Law 15 of 18 August 1994).
Bringing into Panama, storing, distributing, exporting, selling, renting, or placing in
circulation, in any other way, unlawful reproductio ns of protected works (Article 122 of Law 15 of
8 August 1994).
Registering in the Copyright and Related Rights Register, a work, interpretation or production
belonging to other persons, as if they were one's own or as being of a person other than the true
author, artist or producer (Article  122 of Law 15 of 8 August 1994).
Reproducing or copying without authorization, by any means, the performance of a
performer, a sound recording or radio broadcast, in whole or in part (Article 123 of Law 15 of
8 August 1994).
Bringing into Panama, storing, distributing, exporting, selling, renting, or placing in
circulation, in any way, reproductions or copies made without authorization (Article 123 of Law 15 of
8 August 1994).
6 months to one year's imprisonment (Offences against the Rights of Others)
Manufacturing, importing or selling, without authorization, a product protected by patent or
using the patented process without authorization (Article 382 of the Criminal Code).
Using another's legitimate trademark for a product or article not of the other person's
manufacture (Article 385 of the Criminal Code).
One to three years' imprisonment (Offences against the Rights of Others)
A public servant, who to his own advantage or th at of another, uses scientific inventions or
discoveries or new industrial applications which are known to him on account of his duties and must
remain confidential (Article 383 of the Criminal Code)
One to two years' imprisonment (Offences against the Rights of Others)
Placing on sale or circulating on the national or on foreign markets, agricultural or industrial
products with counterfeit or altered names, trademarks or distinguishing signs (Article 384 of the
Criminal Code)IP/N/6/PAN/1
Page 18
(b) Monetary fines
B 1,000 to B 20,000
For all offences against copyright and related rights, under Articles 121, 122 and 123 of
Law 15 of 8 August 1994.
A fine of 20 to 150 day units
Manufacturing, importing or selling, without authorization, a patent-protected product or
using a patented process without authorization.  In this case the Criminal Circuit Court may choose
between imprisonment of six months to one year or a fine (Article 382 of the Criminal Code).
A fine of 50 to 200 day units
For offences against rights of others entailing one to three years' imprisonment, under
Article 383 of the Criminal Code.  The fine is additional to the penalty of imprisonment.
A fine of 100 to 200 day units
For offences against the rights of others entailing one to two years' imprisonment, under
Article 384 of the Criminal Code.  The fine is additional to the penalty of imprisonment.
A fine of 20 to 100 day units
Using someone else's lawful trademark on a product or article that is not of one's
manufacture.  In this case the Criminal Circuit Court may choose between six months to one year's
imprisonment or a fine (Article 385 of the Criminal Code).
(c) Other possible fines
Article 165 of Law 35 of 10 May 1996 establishes a number of monetary fines for anyone
responsible for misuse of industrial property rights, as set forth in Article 164 of the Law, withoutprejudice to the penalties under the Criminal Code.
The further fines are:  B 10,000 to B 200,000 (for perpetrators, accomplices or accessories);
if it is an undertaking in the Colón Free Zone, the fine will be the equivalent to 25 per cent of the
undertaking's monthly turnover and may not be less th an B 75,000;  suspension of the right to operate
an industry for a period of three months;  and suspension or cancellation of an operating permit within
the Colón Free Zone, for a minimum period of three months.
In the event of a recurrence of the infringements, the fine shall be four times the maximum
amount and the suspension shall apply for one year.
There are no uniform criteria regarding the application of Article 165 of Law 35 of
10 May 1996 in connection with criminal offences, since there are very well substantiated opinions
that Articles 164 and 165 of the Law fall within the civil-commercial area of the administration of
justice.
(d) Seizure, forfeiture and destruction of infringing goods and materials and implements for
their production
Under Panamanian criminal law, seizure and forfeiture are known under the one term
"comiso".IP/N/6/PAN/1
Page 19
It is one of the accessory penalties set out in the Criminal Code.  Under Article 5, it is "… loss
and adjudication to the State of the instruments whereby the punishable act has been committed and
of the results thereof, except those belonging to a third party not responsible for the act".  The Article
goes on to say that "… The results or instruments seiz ed shall be sold off if they form part of lawful
trade and the proceeds shall be used to cover the liabilities of the person penalized;  those in unlawfultrade shall be broken up or destroyed."
With specific reference to industrial property, Article 166 of Law 35 of 10 May 1996
establishes that "… In any case of misuse of industrial property rights, the articles and the machinery
used to usurp the property right shall be donated for charitable purposes, free of any tax,  by the
appropriate body, after eliminating any distinguishing signs".  The Article goes on to establish that
"… Where it is not possible to remove the distinguishing signs and the right holder does not grantexpress authorization for them to be donated, such articles shall be destroyed by the competent
authority in the presence of a representative of the right holder".
(e) Other
In the case of a criminal verdict, indemnification of a civil nature may be required.  This does
not lie within the powers of the criminal courts because it relates to offences of a financial nature, but
it is appropriate for the persons affected to request compensation for material and moral damage, with
evidence in support of the amount or value of the indemnification.
25. Describe provisions governing the length and any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
The general rules of the Constitution and the Judicial Code clearly establish that the
administration of justice is continuous and expeditious.
Article 2060 of the Judicial Code specifies a period of two months to complete the
preliminary investigation stage in a criminal pro ceeding.  Such a period shall be extended to four
months if more than two persons are under criminal investigation.
When the period specified in the Judicial Code comes to an end, the file shall be transferred
as such to the respective criminal court, which shal l set the date for the preliminary hearing.  The date
must be set within 45 days of receipt of the file.
After the preliminary hearing has been held and if  it is decided to initiate a criminal case and
summon persons to appear, evidence shall be request ed within the five days following the court's
decision and such evidence shall be provided at the full hearing.
After the full hearing, the court has a period of not more than 30 days, except for
substantiated exceptions on account of the scope of the proceedings, to issue a ruling.
All these periods may be affected by requests for security, preliminary issues or action to
declare the proceedings void, appeals, and so on.  Generally speaking, most of these applications are
made by the accused's lawyers and this is part of the defence.
Preliminary and full hearings may be delayed because the accused has not been personally
notified of the court order establishing the date and time, and as a result he would have to be declared"in default", defence counsel would have to be appointed by the court and notices would have to be
published in the press.  This is part of respect for everyone's guarantees as an individual.IP/N/6/PAN/1
Page 20
The preliminary investigation stage in a criminal proceeding can be completed efficiently,
provided the intellectual property right holders play an active and direct part in collaboration with the
Department of Public Prosecutions in furnishing evidence to establish whether the offence or offences
have been committed and to determine the criminal link with the accused person or persons.
The greatest delay in criminal proceedings cons ists essentially of incorporating documentary
and expert evidence in the file, which almost always has to be supplied by the right holders or their
successors.  If it is not incorporated, the Agent of the Department of Public Prosecutions must request
it abroad, which would make for greatly delayed and inefficient criminal proceedings.
Obviously, the administration of justice is a system that lacks human, material and financial
resources to cope with the increasing number of claims and complaints.  Accordingly, priority must be
attached to  case files for offences involving some danger (hold-ups, robbery, rape, drugs, etc.) andproceedings in which persons have been deprived of their freedom.  Hence the importance of direct
and active participation by the intellectual property right holders.
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