Título V. De la represion de la competencia desleal

Any act contrary to honest usages and practices of trade carried out in all commercial and industrial activity shall be considered unfair.

For an act of unfair competition to exist, it is not necessary that the person who commits it have the status of merchant, nor that there be a competitive relationship between the active subject and the passive subject of the act.

In the event of contradiction between the provisions of this chapter and those on the same subject matter contemplated in the Commercial Code and any other laws, the former shall prevail for the specific case of unfair competition in matters of industrial property.

The following constitute, among others, acts of unfair competition in matters of industrial property:

a)Any act or omission capable of causing confusion or a risk of association or dilution of the distinctive character of a sign, with respect to the products, services, business or establishment of another;

b)The use, promotion or disclosure of false or inaccurate indications or facts capable of denigrating or discrediting the products, goods, services, business or establishment of another or which may mislead with respect to the origin, nature, method of manufacture, fitness for its employment, use or consumption, quantity or other characteristics of one's own or another's products or services;

c)The improper use or the omission of truthful information, when such information is likely to mislead with respect to the origin, nature, method of manufacture, fitness for its employment, use or consumption, quantity or other characteristics of one's own or another's products or services;

d)The use by a third party of a product that is protected by intellectual property laws to mold, trace, copy or otherwise reproduce such product in order to exploit for commercial purposes the results of another's effort or prestige, unless the act is defined as a crime;

e)The use of a distinctive sign whose registration is prohibited pursuant to Article 20, paragraph one, items i), j), k), l), m), n), ñ), o) and p) of this law;

f)The use in commerce of a sign whose registration is prohibited pursuant to Article 21, items b), c) and e) of this law;

g)The unauthorized use of another's trade secret, as well as any act of commercialization, promotion, disclosure or improper acquisition of such secrets; and

h)The unauthorized use in commerce of labels, wrappers, containers and other means of packing or presentation of the products or of identification of the services of a merchant or of copies, imitations or reproductions thereof that may mislead or cause confusion as to the origin of the products or services.

For the purposes of this law, information that has commercial value because its owner keeps it confidential shall qualify as a trade secret where:

a)It is not, as a whole or in the precise configuration and assembly of its components, generally known, nor readily accessible to persons within the circles in which that kind of information is normally used; and

b)It has been subject to reasonable measures taken by its legitimate possessor to keep it secret.

For the purposes of the provisions of this law, undisclosed information and test data submitted to the competent authority for the purpose of obtaining market approval for a pharmaceutical product or for an agricultural chemical product may not be disclosed by the authority, except with prior written consent of the person who submitted them or to protect the public. In any case, the authority shall apply the necessary and effective measures to prevent unfair commercial use of such information or test data and shall observe the protection provided for such data in Article 177 of this law. *Added by Article 66 of Decree of Congress Number 11-2006 on 30-05-2006

The following constitute acts of unfair competition in matters of trade secrets, among others:

a)Exploiting, without authorization of its owner, a trade secret to which access has been had in violation of an obligation of confidentiality arising from a contractual or employment relationship;

b)Communicating or disclosing, without authorization of its owner, the trade secret referred to in the preceding subparagraph for one's own benefit or for the benefit of a third party, or to harm said owner;

c)Acquiring a trade secret by unlawful means or by means contrary to honest commercial practices;

d)Exploiting, communicating, promoting or disclosing a trade secret that has been acquired by the means referred to in the preceding subparagraph;

e)Exploiting a trade secret that has been obtained from another person knowing, or when it should have known, that the person who communicated it acquired the secret by the means referred to in subparagraph (c), or that such person did not have authorization from its owner to communicate it; and

f)Communicating, promoting or disclosing the trade secret obtained pursuant to subparagraph (e), for one's own benefit or for the benefit of a third party, or to harm the owner of the trade secret.

A trade secret shall be considered to have been unfairly acquired when the acquisition results, among others, from breach of a contract or other obligation, from abuse of trust, from bribery, from breach of confidence, from breach of a duty of loyalty or instigation to commit any of these acts.

For a natural or legal person to obtain approval for the marketing of a new pharmaceutical or agricultural chemical product, such person shall:

a)Submit, if the authority requires it, test data or undisclosed information on safety and efficacy. The authority shall not grant marketing approval to third parties lacking the consent of the owner or holder of the test data, for a period of five years for pharmaceutical products and ten years for agricultural chemical products from the date of approval in the country; or,

b)Submit, if the authority requires it, information relating to the safety and efficacy of a product previously approved in another country, such as the prior marketing approval of that country. The authority shall not grant marketing approval to third parties lacking the consent of the holder of test data or of the marketing approval of another country, for a period of five years for pharmaceutical products and ten years for agricultural chemical products, counted from its approval in Guatemala.

c)To grant the protection indicated in literal b) above, the administrative authority shall require that the holder of the test data or of the marketing approval in another country request approval within the five (5) years following having obtained said marketing approval in the other country. *Second paragraph repealed by Article 5 of Decree Number 76-2002 of the Congress of the Republic of Guatemala. *Amended by Article 1 of Decree Number 09-2003 of the Congress of the Republic of Guatemala. Amended by Article 1 of Decree of Congress Number 34-04 of 24-12-2004. *Amended by Article 1 of Decree of Congress Number 30-2005 of 19-03-2005. *Literal c) amended by Article 67 of Decree of Congress Number 11-2006 of 30-05-2006

Exception to the obligation not to disclose test data. The following are excepted from the obligation not to disclose test or other undisclosed data:

a)For pharmaceutical products, when necessary to protect safety in their use, life or health, or in cases of declared national emergency.

b)For agricultural chemical products, in cases of declared national emergency or to protect safety in their use, health or human, animal or plant life, or the environment.

c)When the holder of the undisclosed information or test data or of the sanitary or phytosanitary registration that may benefit from the protection has given its written consent with legalized signature. *Added by Article 2 of Decree Number 09-2003 of the Congress of the Republic of Guatemala. *Amended by Article 3 of Decree of Congress Number 31-04 of 24-12-2004. *Amended by Article 2 of Decree of Congress Number 30-2005 of 19-03-2005

As an exception to the protection of undisclosed information relating to undisclosed test data, the corresponding competent authority shall not protect undisclosed information or undisclosed test data in the case of pharmaceutical or agricultural chemical products where they refer to new uses or second uses, or to indications of a product or chemical entity or to new combinations of approved chemical entities. *Added by Article 3 of Decree of Congress Number 30-2005 on 19-03-2005. *Amended by Article 68 of Decree of Congress Number 11-2006 on 30-05-2006.

For the purposes of the preceding articles, the following shall be understood as:

a)Undisclosed information or test data: information or data that may not have, totally or partially, the character of a trade secret within the meaning of Decree Number 57-2000 of the Congress of the Republic and that serve to demonstrate the safety and efficacy of a pharmaceutical or agricultural chemical product.

b)New product: It is one that contains a chemical entity that has not been previously approved in the country. *Added by Article 4 of Decree of the Congress Number 30-2005 on 19-03-2005

Where the applicable regulations so permit, as a condition for approving the commercialization of a pharmaceutical product, that persons other than the person who originally submitted the safety and efficacy information rely on evidence or information related to the safety and efficacy of a product that was previously approved, such as evidence of prior commercial approval in Guatemala or in another country, the corresponding administrative authority:

a)Shall apply in its approval process measures aimed at preventing the commercialization by such other persons of a product protected by a patent covering the previously approved product or its approved use during the term of said patent, unless done with the consent or approval of the patent holder; and

b)Shall provide that the patent holder be informed of the application and of the identity of any other person requesting approval to enter the market during the term of a patent which, according to the information provided to it by the holder, has been identified as covering the approved product or its approved use. *Added by Article 5 of Decree of Congress Number 30-2005 of 19-036-2005. *Amended by Article 69 of Decree of Congress Number 11-2006 of 30-05-2006.