The trademark owner’s liability facing the new concept of “hyper-vulnerable consumer” in Argentina

Resolution No. 139/2020 of the Secretary of Internal Commerce (hereafter SCI) creates the concept of “hyper-vulnerable consumer” in Argentine positive law. As such, the aforesaid standard encompasses human persons who are in a situation of vulnerability due to their age, gender, physical or mental condition, or due to social, economic, ethnic, or cultural circumstances that cause particular difficulties to their consumer’s rights.

Likewise, in accordance with the aforementioned resolution, non-profit legal entities (associations, foundations, mutual societies) that direct their social goals toward the aforementioned groups can also be included in this term. The resolution above (additionally) establishes certain causes that may be considered as “hyper vulnerability”, such as being in popular neighborhoods.

On the other hand, the standard adds the possibility to include specific socio-economic situations of extreme vulnerability (which have to be proven). Among these situations, the resolution lists: retirees or employees earning gross wages less than or equal to two minimum living and mobile wages; Mono taxpayers enrolled in a category whose annual monthly income does not exceed two (2) times the minimum subsistence and mobile income; Recipients of a non-contributory pension earning a monthly gross income not exceeding two (2) times the minimum subsistence and mobile minimum wage; and recipients of maternity welfare or general child welfare (AUH); among other things.

Likewise, it is important to point out that Article 40 of Law No. 24.240 (Consumer Protection) establishes the joint liability of the owner of the mark for the damages suffered by consumers as a result of the inherent vice or defect of things or the provision of a service together with the producer, the manufacturer, the importer, the dealer, the supplier or the seller. This liability is particularly severe when it comes to hyper-vulnerable consumers. Joint liability among the aforementioned responsible parties is absolutely independent of the recurrence that they may have to claim (against each other) what was paid to the injured party.

On the other hand, since 2016, the trademark’s owner liability is even wider since we must add the damages caused by “activities that are risky or dangerous by their nature, by the means used or by the circumstances of their performance” (article 1757 of the of Argentina’s Civil and Commercial Code).

Finally, Resolution SCI 139/2020 provides that all administrative procedures involving hyper-vulnerable consumers must follow the following principles: a) Accessible language: All communication must use clear, colloquial language, expressed in a simple, concise, intelligible and reasonable form for this type of consumer; b) Enhanced duty to cooperate: Providers must demonstrate behavior aimed at ensuring an appropriate and expeditious resolution of the dispute and provide every possible contribution to this end.

In conclusion, as a result of the new resolution of the Secretary of Internal Commerce, the liability of the brand owners could be increased, since they are jointly liable with the manufacturer, manufacturer, importer, distributor, supplier or seller for any damage caused by products or services bearing their brands.