Prosecution of IP crimes
In particular, the Trade-Related Aspects of IP Rights (TRIPS) Agreement set out minimum standards for the protection, enforcement and dispute settlement of IP rights, modifying the country’s domestic procedures and remedies to comply with international standards.
Later, as a consequence of the enforcement of the Dominican Republic—Central America Free Trade Agreement (DR-CAFTA), Costa Rica agreed to a number of obligations that resulted in the modification of its IP laws and, therefore, its legal system was strengthened and modified even further to comply with international standards. Now there is a well-defined and harmonised legal scenario, with a broad understanding of right owners’ needs.
However, the infringement of IP rights has not had any particular significance for the Costa Rican authorities over the last few decades. Maybe that’s an economic or cultural issue, but primarily it is related to a lack of political will. In this regard, although there have been efforts to encourage the protection of IP rights, the truth is that neither administrative nor civil or criminal mechanisms have succeeded in building an efficient and well organised system to provide practical tools to promote the enforcement of IP rights.
In fact, Costa Rica is still included in the Priority Watch List of the Office of the US Trade Representative’s 2014 Special 301 Report on the adequacy and effectiveness of US trading partners’ protection and enforcement of IP rights. Despite the country’s efforts to address certain issues, long-term concerns about IP enforcement, as well as new problems such as growing evidence of illicit trade, are still a concern in the eyes of the international community.
"neither administrative nor civil or criminal mechanisms have succeeded in building an efficient and well organised system to provide practical tools to promote the enforcement of IP rights."
Until very recently, the prosecution policies for IP crimes in Costa Rica were characterised by the exercise of prosecutorial discretion—such crimes were considered to do little harm. The only exceptions were made when the IP violation was related to the environment or public health, as with pharmaceutical counterfeiting.
Fortunately, an emerging change in mentality by the Attorney General’s office has caused prosecutorial discretion to become obsolete for these types of crime. However, there are still serious budget constraints to achieving an exemplary prosecution and enforcement of rights.
Moreover, the investigation of IP crimes in Costa Rica is not dealt with by a specialised unit of the Attorney General’s office: cases are handled by a mixed unit that combines conventional criminal investigation with cases such as IP rights.
Crimes relating to IP rights are unconventional because they have characteristics of economic crime, white collar crime and international organised crime. Therefore, criminal procedure is perhaps the mechanism that can best ensure more effective protection for IP rights, as the infringer’s freedom is threatened and the punishment is harder.
Although Costa Rica is on the right path regarding the prosecution of IP crimes, there are cultural, educational and governmental issues that are still slowing down the prosecution and enforcement of IP rights.
María del Pilar López is the partner responsible for overseeing Zürcher Lawyers’ IP practice. She can be contacted at: plopez@zurcherip.com
Esteban Monge is an attorney at Zürcher Lawyers. He can be contacted at: emonge@zurcherip.com
