OM Weekly Digest 09/01/22
omwd 9 1 22
protection personal data

09/01/22 – Privacy

Recently, two delegations of the Superintendence of Industry and Commerce (“SIC”) started investigating a company for alleged violations to the Consumer Protection Regulation and the Personal Data Protection Regime.

The infractions that the Consumer Protection Office is investigating are the following: the provision of misleading information to consumers; quality failures in the service; abusive clauses; not having PQRS attention mechanisms; and not attending the information requirements made by the authority. The Delegation for the Protection of Personal Data is investigating the alleged request for sensitive information without the authorization of the owners or the requirements of the regulation.

This shows that the SIC is to enforce the rights of individuals; and to make companies strengthen and implement compliance programs in these matters. 

trademark nullity

09/01/22 – Litigation and ADR

Recently, the Administrative Court of Cundinamarca denied a nullity claim associated with trademark rights, considering that the plaintiff had not complied with the prerequisite of mediation. Mediation has always been a prior requirement when the dispute involves economic claims. However, the Council of State –court of appeal in these matters– never considered that discussions regarding industrial property rights were affected by this regulation. In other words, pre-litigation mediation had never been requested to present a nullity action.  The scope of this decision, whether it will be revoked by the Council of State or become a new precedent, remains to be seen.  Original source in Spanish.

ethics and transparency

09/01/22 – Compliance

The obligation for the entities supervised by the National Superintendence of Health to implement a Business Transparency and Ethics Program has changed.  The Superintendency of Health established that the entities is suprises must design and implement a Transparency and Business Ethics Program in order to prevent corruption, opacity and fraud (“COF”) with a maximum term of August 5, 2023.  Specifically, this Program must aim to adopt policies and procedures that include, among others, the following elements:  

  • Analysis and risk management of the aforementioned risks. 
  • The appointment of a compliance officer with its respective regime of incompatibilities, disqualifications, and conflict of interest management.  
  • Investigate misconduct. 

It is worth noting that the Health Promoting Entities and Health Insurance Companies, among others, have the obligation to implement the Subsystem of Corruption, Opacity and Fraud Risk management since 2018. This regulation shows that this Superintendency initiated the compliance with the 2195 of 2022 on the implementation of the PTEE.  Source.

trademark registration

09/01/22 – Trademarks

On August 5, 2022, the Superintendence of Industry and Commerce issued Resolution 51804, which defines the new guidelines that companies belonging to same-business groups must follow when registering identical or similar trademarks. It enters into force on September 1, 2022.     The new resolution establishes that the Superintendence of Industry and Commerce, during the examination of an application or the analysis regarding the assignment of signs, will have to review if the previous registrations that prevent the registration or acceptance of an assignment of the trademark belong to the same business group of the applicant.    In such case, it shall not be understood that the previous registrations belong to third parties for the purpose of article 136 and article 161 of Decision 486, related to non-registrability causes and assignment of the trademark.    To learn more about the new guidelines issued by the Authority, we invite you to consult the following resolution.