La prueba de uso en las acciones de cancelación de marcas, evolución del criterio de valoración en el Tribunal de Justicia de la Comunidad Andina.

Abstract

The trademark is conceived as a symbol of distinctive character and whose main function is to identify and distinguish the products or services associated with it with respect to those of its competition. However, the function and purpose of a trademark can only be perfected through the corresponding registration carried out by the national authority on intellectual and / or industrial property, in this way the owner of said trademark acquires the power to prevent third parties Unauthorized use, as well as preventing the registration of symbols that can be registered whose registration and operation in the market causes confusion in the consumer due to qualities of similarity with respect to the registered trademark. However, the registration of the trademark entails the obligation of use by its owner, by virtue of this, if a registered trademark has not been used in a period of 3 consecutive years, any interested party, especially that person who requests the registration of a trademark with qualities of similarity, you can request the cancellation action for lack of use and with it declare the extinction of the right of the trademark in the hands of the owner. The present investigation was based on the various jurisprudential sources issued by the Andean Community Court of Justice regarding the criteria on proof of use, in the trademark cancellation action. In this sense, it was evident in the various processes related to this topic, a uniformity in the criteria issued by the Court throughout the years, regarding the main thing, the burden of proof, the competence in the evaluation of the evidentiary means, to the identification of the various constitutive aspects related to the use of the mark and the different evidentiary means applicable to the case.