COLOMBIA
COLOMBIA
Te administrative-stage decisions are currently being challenged in a yet to be decided annulment action before the Council of State, Colombia’s highest administrative court.
THE PURCHASER MUST PERFORM DUE DILIGENCE PROCEDURES TO DETERMINE WHETHER THE PURCHASED OR ACQUIRED ASSETS HAVE EXISTING CONTINGENCIES, WHICH SHOULD IN TURN BE EITHER DISCLOSED BY THE SELLER OR VERIFIED BY THE PURCHASER.
One of a liquidator’s most important tasks is to maintain the commercial operation of the company being liquidated, under strict conditions, in order to safeguard all of its assets—including intangibles—until the liquidation proceeding ends. Allowing key trademarks to become vulnerable through non-use could decrease the value of the asset bundle and lessen the creditor’s rights over the capital of the company. Liquidation should not be a justifiable reason to allow the non-use of a key asset of a company, such as its trademarks.
Second attempt to cancel the trademark: When the trademark right was assigned to a third party (June, 2008), a second cancellation action was attempted. It requested proof that the trademark was used during the 2006- 2009 period and was filed against the assignee of the trademark. Te new holder failed to demonstrate that the trademark was used during the relevant period, but it alleged that its lack of use was justified because of force majeure, namely the liquidation status of the assignor of the trademark right.
It was alleged that when the new holder of the trademark received the asset from a company that underwent liquidation, the assignee should be granted a considerable term to implement the necessary logistics that are required to re-launch and commercialise the product that is covered by the trademark in the market. Te assignee company also alleged that the lack of use was an external fact that was not imputable to the assignee, and so it requested an extra three-year term be added to the date in which the assignment was recorded with CTO’s public registrar.
CTO’s final administrative decision in this second scenario was not to admit as a justification cause of force majeure the liquidation status of the prior holder and assignor of the trademark. Te justification cause does not follow the trademark once it has been assigned further to liquidation. In the examiner’s opinion, the assignee should have taken any and all necessary measures immediately to begin commercialising the trademark. Tis is because the receiving company was fully aware that the trademark was being sold as a contingency due to its vulnerability to cancellation actions.
Te CTO’s administrative decisions seem clearly to allocate the responsibility of effective, evident and immediate use in trade to the trademark holder that receives a trademark asset under threat from cancellation. Tis aimed (i) to eliminate successive re-registrations and assignments as a means of interrupting or re-opening the legal three-year commercialisation term; and (ii) to restrict trademark abuse, ensuring fair and healthy competition in trade.
Te decision also places responsibility for purchasers and vendors within 98 World Intellectual Property Review e-Digest 2012
www.worldipreview.com
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