Guatemala: Nullity of a trademark registration on the grounds of bad faith

By Santiago Mayora Bascuñana, Joint Managing Partner, Mayora IP

The legal action to seek the nullity of a trademark registration is established in article 67 of the Industrial Property Law of Guatemala. This rule contemplates both the nullity and the annulment of a registration. By these brief notes I aim to analyze the scope of facts that underly the claim of nullity where a registration was obtained on the basis bad faith; not so in those cases where it is obtained in violation of the prohibitions set forth in article 20 (intrinsic capacity of a trademark).

Specifically, in relation to the condition of “bad faith”, which is a requirement for a finding of absolute nullity of the trademark registration, the aforementioned rule prescribes: “[…] For the purposes of this article, bad faith is presumed in the following cases: (a) If a registration is obtained based on false or inaccurate information, provided by the applicant […]”. In other words, any applicant for a trademark who obtains a registration based on inaccurate or false information shall be liable under this provision and its registration is subject to cancellation.

Under this assumption, “bad faith” is presumed when a registration is obtained based on inaccurate or false information, as declared or represented by an applicant. Therefore, this action implies the existence of the element of "bad faith" on the part of an applicant, and not only the existence of inaccurate or false information provided by the applicant as a result of a mistake or error. In other words, the "bad faith" requirement, individually considered, may not be equated to the existence of inaccurate or false information provided by an applicant by mistake or neglect.

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