Press and Social Media

New executive order for asset forfeiture and its effects on Intellectual Rights

• 2019, April
• Author: Gustavo A. A. Sena, Esq. - Director of Sena & Berton Moreno

During more than three years, in Argentina, technical teams and legal research of the current government have been working to achieve a body of regulations that will allow the justice to recover the assets that have been acquired with the help of the structural corruption that our country has suffered, and continues to do so, for over half a century.

Clearly, the result of this work attempts to benefit the whole society in detriment of those who have increased their assets through illicit acts that were committed with the complicity of government officers.

The Emergency Executive Order DNU 62/19 was issued to deal with those bills that are being impulsed on the same subject by the Chamber of Representatives on the one hand, and by the Senate on the other. It has originated conflictive opinions as to its constitutionality and its fate. However, we will not discuss the issue of its constitutionality here.

The question that we ask to ourselves is about the incidence this executive order has in the field of the intellectual property in general and of trademarks and patents in particular. If we conclude that it does influence this field, the reason behind these lines is to establish that whatever body of regulations will be definitely adopted -if any is indeed adopted- should not only contain norms related to it but also its significance should be considered.

Argentine society has been witness in over the last years to the grotesque show of a government officer throwing bags with millions of Dollars over a wall of an alleged cloister; of the obscene celebration of people close to the former government who were counting money in a financial institution about whose legitimacy they could not give justification; of the purchase of thousand of hectares and luxury cars with funds that appeared to be spurious. That is to say, the product of the corruption applied to assets that may be either fungible or non-fungible, movable or immovable, but that what they have in common is their being “tangible”. Goods that can be touched or perceived in a precise manner.

Nevertheless, the possibilities are not exhausted with the above.

The DNU provides for that it comprises any assets subject to economic valuation, either movable or immovable, tangible or intangible, registrable or non-registrable, legal documents or instruments showing ownership or any other right over the assets mentioned above, or any other assets subject to pecuniary value.

There are intangible assets that surpass the value of the best car, ship or more than one piece of real property, but they to “unnoticed”

The scenario we are thinking about is that of a businessman suspected of corruption who, with ill-gotten money, may have acquired not a significant piece of real estate but a patent over a robot, or a medicine, or a computer that revolutionizes the market, generating enormous profits.

We should also think about the purchase -with funds that cannot be justified- of rights over a literary work that, taken to the cinema- breaks box office records, or the purchase of a software, or any other work protected by copyright; or the acquisition of a trademark with funds deriving from drug trafficking.

Think also of the purchase with funds that can not be justified from the rights to a literary work that takes to the cinema records box office records. Or in the purchase of a software, or any other work protected by copyright law. Or in the acquisition of a brand with funds from drug trafficking.

The issue is not a minor one because, as it is provided for by the DNU, any income, rents, fruits, profits and any other benefits deriving from the above-mentioned goods are subject to or comprised by the assets forfeiture system.

That is to say, if the software, invention, movie, or intangible asset is developed or obtained with spurious funds, both the goods in question and those that are produced from them would be comprised within the scope of the in rem forfeiture system.

All the above cases compel us as jurists, doctrinaires and men of the law to outline several alternatives that will allow the recovery of assets that are the product of corruption and putting them at the disposal of the society.

It is indispensable that, having the persons over whom there is suspicion of the commission of a serious crime as those dealt with the DNU been detected, the authorities should investigate on the intellectual rights that both the suspected person, or any eventual front person, could own at the National Office of Copyright or the National Board of Industrial Property, which have the registration of intellectual works and of patents, trademarks and industrial models and designs under their care, respectively.

This way, the necessary precautionary measures could be taken so that those goods that were directly or indirectly originated from any of the crimes stated in the DNU can be secured for the purpose of an in rem forfeiture action.

Putting the above ideas in order, we believe that there is a legal opportunity that will allow us to recover the product, the added value and the fruits of goods originated from the corruption that have been comprised by the executive order issued in Macri’s administration, being them either tangible or intangible.

Notwithstanding the fact that we should consider the principle of innocent until proved guilty and that those that are accused with corruption charges may be acquitted of the charges with which they were accused, once the in rem forfeiture is effected by means of this executive order, it is good to establish the scope of this new contribution to the society and to the intellectual property as patrimony of the Nation.

Gustavo A. A. Sena
gsena@sbm.com.ar

SENA & BERTON MORENO was founded in 1937 by ALFREDO SENA and ERNESTO E. BERTON MORENO as a Patent and Trademarks Agency with a stable staff of only four people. Since then, the Firm has grown to reach its current size of forty people, working at our offices located only two blocks away from the Government House and at the heart of the commercial and financial district of the city. Ver más