The
procedures for addressing trademark infringement in Mongolia are regulated by
the Law on Infringement Procedure and by the Criminal Code of Mongolia. Detailed
information on the legal measures to be taken in cases of infringement, their
related dates and the practical challenges will be further addressed in the
next article.
As
mentioned in our previous
blog, the penalty for infringement of a trademark is set out in the Law of
Infringement or Criminal Code of Mongolia depending on the amount of the damage
and loss actually caused. It
is critical in any trademark infringement action to take steps to prove that
the damage caused by the trademark violation exceeds 300,000 MNT (~$115), in
order to initiate a criminal investigation by the police.
With today’s
article, we will briefly introduce the Law on Infringement Procedure of
Mongolia (the Law). The Law sets out rules and procedures for potential infringement
investigation and penalty, starting from the initial inquiry of a potential infringement
case. The Law also sets rules for the prosecutor’s supervision of the
investigation process and results and procedures for dispute settlement at the
court.
Pursuant to the
Article 6.14 of the Law, the state officer for intellectual property shall be responsible
for matters related to the intellectual property, in particular trademark
infringement. The authorized inspector shall carry out the inquiry into the
alleged the infringement case upon the receipt of the complaint and information
about the trademark infringement. Upon receiving a complaint, the inspector
shall decide whether to initiate the infringement case. based on the claims and
evidence provided. After the investigation is complete, the authorized official
shall make the decision on
whether to terminate the case without penalty, or to impose penalties
Prosecutor has
an oversight role and may invalidate the decision to terminate the infringement
case in instances where it is determined that the infringement case has an
element of a crime or it is obvious that infringement has occurred. If the
prosecutor decides that the matter has an element of crime, he/she shall prosecute
the infringer as defendant.
Where
infringement of a trademark is found, the infringer shall execute the imposed
penalties within 15 days after the receipt of the decision. Should the
infringer disagree with the decision and imposed penalties, there is an
opportunity for appeal.
Even though the
violation of the intellectual property in Mongolia is a common practice, most
violations are investigated as trademark “infringement” under the Law, and not
as a crime. As the penalties for such infringement violations are relatively
low and the investigation procedure is not reliable, the occurrence of such
violations is not effectively deterred. Such persistent infringement causes
challenge and burden both to the intellectual property owners and the respective
authorities.
We will take a
look at criminal investigation procedure next week.