Concept - that of public order - which, moreover, exempts the State and the Administration, from any special damage that is contrary, precisely, to the said public order, morality, and good customs, as expressed by the mandate of article 195 LGAP. Thus, one of the commercial activities specially regulated from this perspective is undoubtedly that related to alcoholic beverages, including the means used by companies to offer this class of products to the consumer, in order to increase their sales, and consequently, their profits. A phenomenon before which the State, as a referential axis linked to social coexistence (ref. J. J. Rousseau -The Social Contract-), cannot consider itself myopic. In this vein, analyzing the allegation of the plaintiff, we see how the questioned regulatory norm does not introduce, by itself, discriminatory treatment regarding any group, sector, guild, or individual, nor does it exceed the other parameters of legality (as limits of administrative action) that have been studied, ex officio, without observing, moreover, indeterminate legal concepts, which, by themselves, are also not capable of generating nullity. Remember that we are not in the presence of open criminal types; moreover, we anticipate that the studied regulation cannot even be considered of a sanctioning nature. Of course, the case is different when the claimant alleges that the acts of individual application introduce an odious discrimination, harmful to the principle of equality, an assumption in which we would have to study if the administrative conduct incurred such a defect, based on the evidence provided by the litigants, in order to verify the figure of misuse of power (desviación de poder), but that analysis must be oriented to review the way in which the Administration applies the regulation for each specific situation.
VII. (cont.)- For the purposes of analyzing the CONTENT of the individual application acts, it is important to bear in mind that the plaintiff company's questions essentially revolve around these aspects: 1) the legends printed on the advertising labels are not capable of producing - in the consumer - the effect attributed to them by IAFA, nor do they refer to qualities of persons or the product, nor do they infringe regulatory provisions; 2) the typical cart wheel is not a national symbol, but rather the complete set of the cart is; in any case, the multicolored design contained on the advertising labels is not a cart wheel, but rather evokes \"NAIF\" art; 3) the woman presented on the S. label, despite being questioned by IAFA because she is placed in a position, with clothing and a suggestive, attractive, and young attitude, implies discriminatory treatment, because the advertising material of other competing companies does include real women (not cartoons, like the designed one), in suggestive positions and in bikinis; 4) the image of the bull related to the name M. does not indicate a stimulating effect nor is it related to bullfighting; 5) the label of the L. brand makes reference to it being smooth and light, which is no different from the word light, approved for other beer brands; 6) the label indicating fresh beer and draft beer is treated in a discriminatory manner, because the suggestive attitude, position, and clothing has not been limited for other brands where they use bikinis; furthermore, the wheel and the cartoon images constitute logos in the process of registry registration, protected under article 25 of Law No. 7978. This synopsis has no other purpose than to serve as guidance for capturing the Court's criterion, in the face of the plaintiff's assertions, without intending to be exclusive of the claims in the lawsuit. Entering into the matter, it is important to highlight that the most relevant reason for objection, verified by the Administration, was that referring to the legends or phrases present on the five labels submitted for approval. This Chamber clearly understands, from reading the challenged individual administrative acts, as well as from the testimony given at trial, mainly from witness H., without witness S. L. having convinced us otherwise, that the phrases questioned by IAFA fall into the category of those that induce the purchaser of the product to adopt a certain behavioral pattern. Each phrase, in any case, must also be seen immersed in its context, which is the link between the advertising message and the images that surround it. Even being a witness offered by the plaintiff, Mrs. S. L., in her statement acknowledged that the phrase contained on the promotional label of the beer that states red ale will trap you with its aroma, surprise you with its body and caramel color, and finish you with a pleasant hop flavor. This beer will surely please the most demanding palates, could be considered suggestive, perhaps because of the strong term (sic) and caramel color. This indication is important to understand that in her testimony, she admits what she tried to refute in the written report provided by the plaintiff, a document with which she intended to introduce some variables to discredit the reasoning contained in the final administrative acts. However, the approach given by the private consultant, for the purpose sought by the plaintiff company, does not convince the Court, in view of the fact that it is sufficient - just as her witness acknowledged - that the phrase is capable of leaving open the possibility of inducing the consumer to a certain behavior, to understand the background of the Administration's position. In any case, the statement of the IAFA official, H., is more explicit, we believe, due to his experience in the position, allowing a better understanding and, at the same time, complementing the context of the administrative acts denying the referred advertising. It is important to highlight that in the case of the L. beer, the justification for which the advertising label was rejected was that the expression Smooth and light beer ideal for drinking in our tropical climate and on the sunny beaches of Costa Rica, mentions stimulating effects, because, without a doubt, this statement gives rise to thinking that the drink has the quality of refreshing people in the climate of our country, being smooth and light, and furthermore, the assertion of refreshing can also induce deception in people, by considering that it is a soft drink, that is to say, a non-alcoholic beverage. In this sense, the Court considers that the phrase induces the consumer, if they take the message literally, understanding that this is the ideal beer to drink, according to the tropical climate that characterizes us, and on the beaches. In this context, the characteristics of the beer, as a smooth or light one (\"light\"), were not questioned, but rather the problem arises when linking the effects that the phrase aims to highlight. For this label, the image of the woman was not questioned as a constituent element of the advertising message. However, the central idea of the advertisement seems very clear, insofar as the advertising leads the consumer to believe that they must purchase that beer, which is ideal for drinking, in our environment. In the case of the S. and M. beers, their labels share the same phrase, the expression of which indicates Red ale will trap you with its aroma, surprise you with its body and caramel color, and finish you with a pleasant hop flavor. This beer will surely please the most demanding palates, which was disallowed because it mentions various effects related to the drink, such as that it will trap the person, also that it surprises them, and that it finishes with them, pleasing the most demanding palates. What is not discussed here - nor does the Administration question - is the color of a red ale type beer, but rather that the label takes advantage of the description of that characteristic of the product to add advertising content, whose ulterior purpose is questionable, such as highlighting the effects of the drink, which its manufacturer says it possesses, intermingling psychological aspects, so that, it is understood, the sum of those elements will trap or surprise the buyer. Under that profile, the Administration's reasoning is understandable. Looking at the case of the S. beer, apart from what was mentioned regarding the text of the label, it is very evident, as IAFA states, that the logo uses the image of a woman, in a suggestive position and gestures, with the name S., like that Costa Rican legend, which refers to the imaginary of the beautiful woman, who presents herself to men, in some way, exploiting her attributes, which identifies the message with an individual. In that area, the denying act explains that the advertising contained in the questioned text relates the beer to the qualities of persons, in this case a woman placed in a position, with clothing and a suggestive, attractive, and young attitude, who calls the consumer to buy the product. The image of the woman, individually considered, does not mean a major dilemma, but appreciated in the context of the advertising phrase, it acquires a suggestive dimension, which is precisely what the Administration refuted. Next, in the case of the M. beer, it was also assessed - in reference, again, to the text of the advertisement - that it uses the cartoon image and the name of a bull known in Costa Rica, for the high risk involved in riding the animal in the national festivities, hence this name, referring to a beer, manages to highlight stimulating effects, given that the person assumes them upon acquiring this alcoholic beverage. In view of the IAFA's position, we consider that the argument on which the competent body bases its decision to deny authorization is duly substantiated; moreover, it has not been subjected to contrary evidence, and instead, has only been confronted with the thesis of the plaintiff company, which could be noted for its speculative approach, not for being supported by an effective demonstrative element, given that the statement of witness S. L. does not convince the Court for that purpose, due to the lack of technical elements that give credibility to her expertise, especially when confronting it with the content of the questioned administrative acts, an aspect that is related not only to the lack of specific suitability in the advertising field, although she possesses others related to psychology, but because her opinions expressed in the written document do not allow accrediting that the content of the denying administrative acts are scientifically or technically incorrect, for the purposes of article 16 LGAP.
VIII.- (cont) The issue that the text and images of the logos contained on the three labels, as well as on the two prints that would serve as advertising for billboards and similar, are associated with the image of the questioned typical design, contravening the cited Regulation that prohibits the advertising of alcoholic beverages related to a national symbol, such as the typical Costa Rican cart, is very relevant. The plaintiff insists that the design is nothing more than a rosette, with elements of \"NAIF\" art, without a specific pattern being recorded; in any case, it affirms that the protection is for the typical cart, not the wheel. The Court does not embrace the thesis of the proposing company, and considers justified the content of the denying administrative act, to the extent that it considers the wheel as an element of the typical cart, having to be understood as part of that symbol; moreover, the Court adds, it could be an emblem in itself.\n\nHere we introduce an additional element, as we understand that the complaint's argument implies that the protection of national symbols exists only to the extent that the legislator or the Executive Branch, the latter by decree, has declared a specific figure, work, animal, plant, intellectual creation, or similar, as a national symbol; otherwise, it does not merit the protection of the regulation and can be used without restriction in the advertising of alcoholic beverages. Faced with this assertion, this jurisdictional body maintains that a national symbol, for the purposes of authorizing a specific advertisement such as the one that concerns us, in addition to incorporating those indicated by the plaintiff company, may contemplate others that, without being thus recognized in a law or decree, represent the cultural identity of the Nation, including that of its institutions, and that merit due protection, safeguarding public morality, public order, and good customs. For example, an advertisement that uses the main headquarters of the General Comptroller of the Republic as a background scenario to promote the sale of an alcoholic beverage could be **not** authorized, even though that building has not been declared a national symbol as referred to by the plaintiff. Obviously, such a thing is possible, in application of the rules of logic and convenience of the aforementioned Article 16 LGAP, as it constitutes an element that defines the administrative and political organization, as part of the identity of the Nation, since the building identifies an institution that represents the mechanism for controlling public function and treasury, as part of the very essence of the rule of law. Moreover, the denial of such an advertisement would give rise to the exemption referred to in Article 195 LGAP, mentioned above, as it involves an individual interest contrary to public order. It is not superfluous to clarify that in the example given, it is not about the protection of the State’s image rights, as a legal entity, which we are neither suggesting nor recognizing, but rather that the use of the ethereal national identity and the specific symbols that identify it must be safeguarded, as part of the existing mechanisms to maintain peaceful coexistence in society, a sufficient reason to prevent the commercialization of a beverage of this type whose advertising is supported by a visual element, such as the referenced building. Issues of public order justify this thesis, an aspect that is innate to the subject, thus characterizing the framework for regulating the consumption of alcoholic beverages, and of course, advertising, as a commercial phenomenon that induces said consumption, does not escape such limits. A similar situation occurs with the typical oxcart, or the wheel as an essential element of it, its colors and its traditional forms, given that, despite the logo that the plaintiff company maintains registered as a trademark, the truth is that when intending to use it for advertising purposes, it must pass the control and supervision, according to the terms contemplated in the regulation we are analyzing. In this case, it is evident and notorious that the decorated wheel is a traditional element that characterizes the typical oxcart, so much so that an artisan-style decorated circle is usually identified as part of its essence, even when seen separately. We understand that this is what the Administration expressed when pointing out that the typical oxcart, in particular its decorated wheel, following a local, non-uniform but characterizable artistic artisan pattern, should not be associated with the consumption of an alcoholic beverage. In this context, it is beyond discussion whether denying the advertising submitted to the process limits the exercise of the plaintiff's rights derived from the registration of signs with the National Registry, as a trademark, or whether it infringes any international convention or national law on the use of a trademark, which is not actually being prevented, according to the testimony of the plaintiff company's witness, its accountant D., who explained how the company markets and sells its products under the trademark of interest, organizing that part of the business even through another sister company of the plaintiff, which handles that stage of the business. What is being discussed here is that the wheel, the design displayed there, and the colors it uses clearly identify a typical oxcart, or an essential element of it, which linked to the text and other questioned images, in the cases where this was done, dealing with advertising for alcoholic beverages, is a particularly sensitive aspect, mainly when the merchant captures that type of relationship or link for the purpose of promoting or selling a product, which is why control over that type of advertising prevails within the contour of preserving public order, which governs this subject. In any case, we believe that Article 25 of Law No. 7978, which the plaintiff alleges in its complaint, actually refers to the right of defense of the trademark against third parties in cases of unauthorized use, which does not apply to the sub judice case, as it does not concern that scenario.\n\nIX.- (cont.) The issue of unequal treatment, according to the action filed, must refer us to the review of the relevant evidence provided by the plaintiff, which only allows us to conclude that the advertising labels are not in similar, alike, or equivalent conditions compared to that advertisement which the IAFA acknowledged having authorized at the time, as advertising campaigns for the Imperial brand, specifically those visible on folios 260 and 263, but not those contemplated in the videos, which did not yield any evaluable parameter of interest. Furthermore, the latter involve moving images, which in itself shows that it is not an advertising mechanism even similar to that which the plaintiff submitted in order to obtain authorization from the IAFA, which specifically concerned printed material composed of labels with fixed images, accompanied by phrases with specific messages. The foregoing being clear, we must indicate that in the photographs mentioned on the referenced folios, as expressed by witness H. and verified by the Court, there is no legend mentioning the characteristics of the product or linking it to qualities of persons, nor do they contain images associated with national symbols or emblems, or of another nature that merits administrative protection to preserve public order, good customs, or morality, according to the specific jurisdiction of the IAFA. It is appropriate to remember that although the central axis of the denial has **not** been the use of the image of a woman, but mainly the advertising phrases reinforced in the context of the supporting images, questioning the use of the typical oxcart, or the wheel as one of its elements, and the caricature of a woman in some of the cases, it is not superfluous to refer to the manner in which control is exercised regarding the use of the human body as an advertising element:\n\nIV.- It is pertinent to clarify to the petitioner that it is not within the competence of this Chamber to assess whether or not the permit to publish the advertising material in question should be granted, or to determine whether the appealed office resolved the request correctly. It is necessary to remember that the recurso de amparo has the exclusive purpose of ensuring the validity of the fundamental rights and freedoms enunciated in the Political Constitution, except those protected by habeas corpus. Its intention is not to serve as a generic instrument to guarantee the right to legality, therefore, the appellant's claim that the Office of Advertising Control be ordered to deliver the authorization numbers for the advertising material submitted for its control cannot be accepted, as this is part of that office's jurisdiction. In this regard, in judgment No. 2001-05695 of sixteen hours and twenty-four minutes on the twenty-sixth of June, two thousand one, this Chamber stated the following: ‘... For its part, the National Advertising Control Office has the jurisdiction to control and regulate commercial advertising, pursuant to Law number 5811 of the tenth of October, nineteen seventy-five: ‘Article 1.- All types of commercial advertising **that offend the dignity of the family** and in which the image of women is used immodestly to promote sales, shall be controlled and regulated with restrictive criteria by the Ministry of Governance.’ (The highlighting is not part of the original) ‘Article 2.- For the purposes of the first article, advertising or promotional material shall be considered: (…) b) (…) all material intended to be projected or transmitted through television or cinema; (…)’ From the highlighted portion, it follows that in this case, the appealed Office had jurisdiction to hear the matter given that what is intended to be determined with the proceedings initiated against the protected company is whether it effectively causes an impact on minors and on the way they perceive normal treatment towards animals, insofar as minors are part of the family. Therefore, without entering into considerations about this Chamber’s opinion in this regard, the jurisdiction of the appealed Office ‘to control and regulate’ the advertising material, in this case the ‘Olympic’ Bags advertisement, is deemed established. …’ ‘…V.- Nor does this Court consider that there has been a violation of the right to expression, since the advertisement was scheduled and thus the right to expression was exercised; however, said right is not unrestricted and therefore, through the a posteriori censorship process, it was determined that it could be harmful to the correct development of minors, which is why it ceased to be scheduled as a precautionary and therefore temporary measure. Finally, this Chamber also does not find that there has been a violation of the freedom of commerce for the same reasons; said freedom is not unrestricted, and if the legal system empowers the appealed Office to suspend the presentation of the advertisement, this does not imply a violation of its freedom to market products through the desired advertising, given that if there are reasons to do so (as in this case), it can in no way be considered harmful to its fundamental rights, especially if it is done through a procedure respectful of the right of defense and due process. For the foregoing reasons, this Court finds no grounds to grant the recurso.’ V.-\nBy virtue of the foregoing, it is not observed that the respondent party has incurred in any act or omission contrary to the fundamental rights of the protected company; therefore, it is appropriate to declare the recurso without merit, as is hereby done.” (CONSTITUTIONAL CHAMBER. Voto Nº 2004-08957. San José, at eight hours and fifty-one minutes on the twentieth of August, two thousand four)\n\nMeanwhile, for its part, the First Chamber of our Supreme Court has stated:\n\nVI.- Grievances two and three will be analyzed jointly, as they seek to demonstrate the IAFA's jurisdiction to restrict the use of the image of women in advertising related to alcoholic beverages. The Court considered that the IAFA's jurisdiction is limited \"to the assessment of the 'association or connection' between the product and the qualities or characteristics of the models promoting it; the arguments of gender defense presented are therefore unjustifiable due to the aforementioned regulatory restriction, and consequently, resolution SJCP-875-11-05 is annulled because the body exceeded its jurisdiction when assessing the advertising submitted for approval.\" (folio 299). This Chamber considers that, as it concerns the authorization of advertising material for an alcoholic beverage, such as ... beer, the IAFA has sufficient jurisdiction to rule on this issue. In this regard, canon 6 of the Regulation provides, \"The Institute shall be the competent body to ensure the execution of this Regulation, and consequently, all advertising of alcoholic beverages carried out through any advertising medium must have its prior and express approval.\" Regarding the use of the image of women in such advertising, the IAFA is also empowered to prohibit material \"that relates alcoholic beverages to the physical, anatomical, moral, or intellectual qualities of individuals, or to their skills or virtues.\" (article 3 ibidem). In the present case, what was submitted for examination by the Institute were photographs of women with the following characteristics: blond, slender bodies, and with little clothing, where evidently the described blondes are associated with the beer, a fact that authorizes prohibiting the advertising, as was indeed done. However, beyond the cited regulatory rules, there are higher-ranking norms with mandatory observance within the national territory, such as international treaties signed and approved by Costa Rica, among which those that protect the honor, integrity, and dignity of individuals are of interest here, more specifically those referring to women. In this sense, the American Convention on Human Rights or Pact of San José (approved by Law No. 4534) establishes that, \"1. Every person has the right to have his physical, mental, and moral integrity respected.\" (article 5) And that \"1. Every person has the right to have his honor respected and his dignity recognized.\" (article 11) And it even authorizes that, \"4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence,…\" (article 13) On the other hand, the Convention on the Elimination of All Forms of Discrimination against Women (approved by Law No. 6968) sets forth the commitment to \"a) Modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.\" (article 5, subsection a) And the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, Belem do Pará (approved by Law No. 7499), in its canon 8, subsection g), provided for \"encouraging the media to develop appropriate dissemination guidelines that contribute to the eradication of violence against women in all its forms and to enhancing respect for the dignity of women;\". Consequently, if the Costa Rican State has the commitment and the obligation to avoid practices that violate the image of women, and given that what was presented to the IAFA were photographs where women are represented as an instrument or object, since the female profile used exploits the physical and anatomical characteristics of the models, the Institute is obligated to prohibit the material. Certainly, one might think that respect for the image of women is a meta-legal issue, yet even with that position, the truth is that it permeates the law, as it represents the values of a society at a given moment and as such must be respected by the community. In consideration of the foregoing, the majority of this Chamber considers that the cited advertisement violates the image of women; therefore, the IAFA acted correctly in denying it, which leads to upholding the charges raised. (FIRST CHAMBER OF THE SUPREME COURT OF JUSTICE. Voto Nº 000198-F-S1-2010 San José, at fifteen hours on the fourth of February, two thousand ten)\n\nIn the case of the design of the advertising label for S., or the label with the legend TOME CERVEZA FRESCA, it is reiterated that it was not disapproved simply for the use of the female image, in exercise of a type of censorship to safeguard modesty, but rather the evident cause was the texts that induce the consumer, legends that, combined with the caricature figure of a woman, ultimately reinforce the Administration's questioning. Moreover, in addition to the cited phrases and their message, it is notable that the strongest link to support the denial is the wheel, as an element of the typical oxcart, a national symbol. The images, it is added, must be seen in that context and not alone, since the labels were not denied for the fact of resorting to the physical contour of the person, or its caricature, but for what they represent, according to the specific contour of the message driven by the questioned phrase. So, to insist that there is discriminatory treatment due to the fact that the printed advertising visible on folios 260 and 263 promotes degrading treatment of women and men is nothing other than reiterating the differences that precisely demonstrate that we are not in the presence of similar or alike advertising, but rather they are distinct, with different contents, whose only common link is that both refer to beer brands and use the printed medium to drive the campaign, but that, on a factual level, the way in which the message aimed at the consumer is presented is very different. One directly induces the purchase of the good by explicitly linking the qualities of the persons with the characteristics of the product, as described, in reference to the questioned texts, coupled with the image of the typical oxcart or one of its elements, while the other, which promotes the competition, in no way raises those references. Therefore, we reiterate that it is not a matter of equal, similar, or alike situations, but of different advertising campaigns, with a dissimilar arrangement of images or texts among themselves. It is evident that the content of the administrative acts that denied authorization for the advertising, as well as those that exhausted the administrative channel, besides being clear and possible, are undoubtedly lawful, in the terms of Article 132 LGAP, and the Court has devoted itself to their analysis, considering it relevant to understand the cause that prompted the Administration to make the final decision applied in this case.”\n\nand Nombre317., as well as the promotional posters (afiches) called CERVEZA FRESCA and CERVEZA DE BARRIL; - That the nullity (nulidad) of subsections 3, 4, and 6 of Article 3 of the Reglamento y Control de la Propaganda de Bebidas Alcohólicas be declared; - That the defendants be ordered to pay damages and lost profits (daños y perjuicios), damages consisting of the sums left uncollected as income from increased product sales due to the rejection of the advertising material issued by the IAFA, which it quantifies for the year 2011 at the sum of ¢77,286,562.00, while the lost profits (perjuicios) are equivalent to the loss of earnings (lucro cesante) on the sums that are liquidated for material damage (daño material), estimated from the denial until the effective payment of those damages (daños); - It also requests procedural and personal costs (costas procesales y personales) of the lawsuit.\n\n2) The IAFA appeared at the oral trial, opposing the claim, requesting that it be declared without merit, with an award of both costs (costas) of the proceeding against the plaintiff. It did not raise any defenses (excepciones).\n\n3) The ESTADO also appeared at the debate, requesting that the claim be declared without merit, with an award of both costs (costas) against the plaintiff, as well as interest on those sums. It alleged the defenses (excepciones) of lack of current interest (falta de interés actual), lack of standing (falta de legitimación), and lack of right (falta de derecho).\n\n4) The legal deadlines (plazos de ley) are observed in the issuance of this judgment.\n\nDrafted by Dr. Alner Palacios García; and\n\nCONSIDERANDO\n\nI.- PROVEN FACTS (HECHOS PROBADOS).- The Court finds the following relevant facts to be accredited:\n\n1) The company Nombre147286., on November 9, 2010, submitted a request before the IAFA for the approval of advertising labels (etiquetas publicitarias) for the brands Nombre147287., Nombre147285., and Nombre5689. (folios 84 to 89, 135 to 140, and 185 to 190 of the judicial file admitted at the preliminary hearing).\n\n2) The Advertising Control Commission (Comisión de Control de Publicidad) of the IAFA resolved the application of the plaintiff company, regarding the approval of the advertising labels (etiquetas publicitarias) for the brands Nombre147287., Nombre147285., and Nombre5689., by issuing an administrative act (acto administrativo) that encompassed the three referenced requests, rejecting the application in resolution SJCP-1113-12-10 at 7:00 a.m. on December 17, 2010 (folios 75 to 76, 125 to 126, and 182 to 183 of the judicial file admitted at the preliminary hearing).\n\n3) In the case of the Nombre5689. beer, the reason the advertising labels (etiquetas publicitarias) were not approved was that the expression \"Smooth and light beer ideal for drinking in our tropical climate and on the sunny beaches of Costa Rica\" (Cerveza suave y liviana ideal para tomar en nuestro clima tropical y en las soleadas playas de Costa Rica) makes reference to stimulating effects (efectos estimulantes) because it states that this beverage has the quality of refreshing people in our country's climate, being smooth and light, which contravenes subsection 4) of Article 3 of the Reglamento sobre regulación y control de la propaganda de bebidas alcohólicas; furthermore, the assertion of refreshing could also induce deception (inducir a engaño) in people by leading them to consider it a soft drink (refresco), that is, a non-alcoholic beverage (folios 75 to 76, 125 to 126, and 182 to 183 of the judicial file admitted at the preliminary hearing).\n\n4) In the case of the Nombre147285. and Nombre317. beers, the reason the advertising labels (etiquetas publicitarias) were not approved was that the expression \"Red ale will catch you with its aroma, will surprise you with its body and caramel color, and will finish you with a pleasant hoppy flavor. This beer will surely please the most demanding palates,\" makes reference to diverse effects of the beverage, of a physiological, psychological, and sociological nature (de orden fisiológico, psicológico y sociológico) on the person, such as that it will catch them, surprise them, and finish with them, after catching and surprising them, as well as pleasing the most demanding palates (folios 75 to 76, 125 to 126, and 182 to 183 of the judicial file admitted at the preliminary hearing).\n\n5) For the Nombbre147285. beer, it was additionally assessed that it uses the image of a woman, who is identified by that name, in a suggestive position and gestures, that it deals with a Costa Rican legend, which refers to the imaginary and the beautiful woman, who is presented to men, and that associated with the image of the typical design (diseño típico) of an oxcart (carreta), on the three labels, contravenes subsection 6) of Article 3 of the cited Reglamento which prohibits advertising of alcoholic beverages associated with national symbols (símbolos nacionales), in addition to that image contravening subsection 3) of Article 3 of the same Reglamento, because it relates the beer to the qualities (cualidades) of persons, in this case a woman placed in a suggestive, attractive, and young position, clothing, and attitude (folios 75 to 76, 125 to 126, and 182 to 183 of the judicial file admitted at the preliminary hearing).\n\n6) For the Nombre317. beer, it was also assessed that it uses a cartoon image and the name of a bull known in Costa Rica, for the high risk involved in riding the animal in national bullfights, for which reason this name, related to a beer, refers to stimulating effects (efectos estimulantes), because the person assumes such risks with this alcoholic beverage, contravening subsection 4) of Article 3 of the indicated Reglamento (folios 75 to 76, 125 to 126, and 182 to 183 of the judicial file admitted at the preliminary hearing).\n\n7) Finally, in the case of the three beers, the administrative decision (decisión administrativa) considered that the typical design (diseño típico) contravenes subsection 6 of Article 3 of the mentioned Reglamento, which prohibits the advertising of alcoholic beverages when it uses national symbols (símbolos nacionales), such as the typical Costa Rican oxcart (carreta típica costarricense) (folios 75 to 76, 125 to 126, and 182 to 183 of the judicial file admitted at the preliminary hearing).\n\n8) In a separate proceeding, the company C. LTDA, on December 8, 2010, also submitted a distinct request before the IAFA, this time for the approval of promotional advertising material related to the beer manufactured by that company, consisting of images of an oxcart (carreta) and of fresh beer (folios 222 to 227 and 250 to 255 of the judicial file admitted at the preliminary hearing).\n\n9) The IAFA distinguished this last application from the others, calling the advertising material L. 1, which contains the oxcart as the central image of the design, and Nombre5689. 2, which presents a woman at the center of the image, deciding not to approve the requested advertising material, by means of the resolution issued by the Advertising Control Commission (Comisión de Control de Publicidad) of the IAFA, Nº SJCP-1126-12-10 at 11:00 a.m. on December 17, 2010, regarding the case of Nombre5689. 1, and resolution Nº SJCP-1125-12-10 at 11:00 a.m. on December 17, 2010, referring to the case of Nombre5689. 2 (folios 215 to 221 and 246 to 249 of the judicial file admitted at the preliminary hearing).\n\n10) For the case of Nombre5689. 1, the advertising label (etiqueta publicitaria) was not approved because it uses the image of the woman placed beneath the face of another on the right side, contravening subsection 3) of Article 3 of the cited Reglamento, given that it relates the beer to the qualities (cualidades) of persons, in this case, a woman placed in a suggestive, attractive, and young position, clothing, and attitude, as well as the typical design (diseño típico) in the image being contrary to subsection 6) of the regulatory Article 3, which prohibits the advertising of alcoholic beverages when it uses national symbols (símbolos nacionales) such as the typical Costa Rican oxcart (carreta típica costarricense) (folios 215 to 221 and 246 to 249 of the judicial file admitted at the preliminary hearing).\n\n10) For the case of Nombre5689. 2, the advertising label (etiqueta publicitaria) was not approved because the expression \"Drink fresh beer\" (Tome cerveza fresca) makes reference to stimulating effects (efectos estimulantes), by inviting one to drink, and suggesting that the alcoholic beverage has the quality of refreshing people in our country, also being able to induce them to deception (inducirlas a engaño) by making them consider it a soft drink (refresco), which contravenes subsection 4) of Article 3 of the Reglamento; likewise, the image of the woman placed at the center contravenes subsection 3) of Article 3 of the same Reglamento, because it relates the beer to the qualities (cualidades) of persons, in this case a woman placed in a suggestive, attractive, and young position, clothing, and attitude; and finally, the typical design (diseño típico) contravenes subsection 6) of Article 3 of the Reglamento, which prohibits the advertising of alcoholic beverages when it uses national symbols (símbolos nacionales), such as the Costa Rican oxcart (carreta costarricense) (folios 215 to 221 and 246 to 249 of the judicial file admitted at the preliminary hearing).\n\n11) On January 10, 2011, the plaintiff company filed an appeal (recurso de apelación) against resolutions SJCP-1113-12-10, SJCP-1125-12-10, and SJCP-1126-12-10 issued by the Advertising Control Commission (Comisión de Control de Publicidad) of the IAFA (folios 62 to 65, 117 to 121, 166 to 171, 210 to 213, and 242 to 245 of the file Nombre147288. admitted at the preliminary hearing).\n\n12) By means of resolutions Nº SJCP-35-01-11, Nº SJCP-36-01-11, and Nº SJCP-37-01-11, issued on January 18, 2011, the Advertising Process Control area confirmed those issued by that same body, Nº SJCP-1125-12-10, Nº SJCP-1126-12-10, and SJCP-1113-12-10, all dated December 17, 2010, in the sense of upholding the rejection of the design for the beer L. 1 and L. 2, to be used on billboards (vallas publicitarias), banners (pancartas), ads, and others, as well as the labels for the Nombre5689., Nombre147285., and Nombre317. versions, for contravening subsections 3, 4, and 6 of Article 3 of the Reglamento sobre Regulación y Control de la Propaganda de Bebidas Alcohólicas, deciding to elevate the appeal (recurso de apelación) to the consideration of the Board of Directors (Junta Directiva) (folios 552 to 553 and 580 to 581 of the judicial file admitted at the preliminary hearing).\n\n13) Prior to the decision-making (de previo a la toma de la decisión), related to the appeal (recurso de apelación), the IAFA's Board of Directors (Junta Directiva) received the opinion of the Consejo Asesor de Propaganda, issued via official communication SJCP-0013-01-2011 of January 28, 2011, according to which that advisory body agreed with what was decided in resolutions SJCP-1113-12-10, SJCP-1125-12-10, and SJCP-1126-12-10, recommending not approving any of the pieces comprising the campaign presented by the plaintiff company (folios 504 and 530 of the judicial file admitted at the preliminary hearing).\n\n14) The IAFA's Board of Directors (Junta Directiva), in ordinary session Nº 04-11 of February 1, 2011, issued agreement (acuerdo) Nº 8, rejecting the appeal (recurso de apelación) and confirming resolution Nº SJCP-1113-12-10, insofar as the advertising material contravenes subsections 3, 4, and 6 of Article 3 of the Reglamento sobre Regulación y Control de Propaganda de Bebidas Alcohólicas, exhausted the administrative channel (vía administrativa), issuing resolution JD-Nº 04-2011 at 1:00 p.m. on February 19, 2010 (sic) (folios 55 to 58, 149 to 152, 203 to 206, and 235 to 238 of the judicial file admitted at the preliminary hearing).\n\n15) The IAFA's Board of Directors (Junta Directiva), in ordinary session Nº 04-11 of February 1, 2011, issued agreement (acuerdo) Nº 9, rejecting the appeal (recurso de apelación) and confirming resolution Nº SJCP-1125-12-10, insofar as the advertising material contravenes subsections 3, 4, and 6 of Article 3 of the Reglamento sobre Regulación y Control de Propaganda de Bebidas Alcohólicas, exhausted the administrative channel (vía administrativa), and issued resolution JD-Nº 05-2011 at 1:00 p.m. on February 19, 2010 (sic) (folios 49 to 51, 143 to 145, 197 to 199, and 229 to 231 of the judicial file admitted at the preliminary hearing).\n\n16) The IAFA's Board of Directors (Junta Directiva), in ordinary session Nº 04-11 of February 1, 2011, issued agreement (acuerdo) Nº 10, rejecting the appeal (recurso de apelación) and confirming resolution Nº SJCP-1126-12-10, insofar as the advertising material contravenes subsections 3, 4, and 6 of Article 3 of the Reglamento sobre Regulación y Control de Propaganda de Bebidas Alcohólicas, deeming the administrative channel (vía administrativa) exhausted, and from its bosom emanated resolution JD-Nº 06-2011 at 1:00 p.m. on February 19, 2010 (sic) (folios 52 to 54, 146 to 148, 200 to 202, and 232 to 234 of the judicial file admitted at the preliminary hearing).\n\n17) The company C. LTDA has registered in the National Registry, Intellectual Property Registry (Registro Nacional, Registro de la Propiedad Intelectual), the factory and trade mark (marca de fábrica y comercio), registration Nº 209694, which consists of a logo or design and the word Nombre5689., to protect in international class 32: beers, mineral waters, sodas, and other non-alcoholic beverages, fruit beverages and juices, syrups, and other preparations for making beverages, registered on May 23, 2011, valid until May 23, 2021 (folios 283 and 797 of the judicial file admitted at the preliminary hearing).\n\n18) The company C. LTDA has registered in the National Registry, Intellectual Property Registry (Registro Nacional, Registro de la Propiedad Intelectual), the factory and trade mark (marca de fábrica y comercio), registration Nº 211332, which consists of a logo or design, to protect in international class 32: beers, mineral waters, sodas, and other non-alcoholic beverages, fruit beverages and juices, syrups, and other preparations for making beverages, registered on August 4, 2011, valid until August 4, 2021 (folio 464, admitted at the preliminary hearing, and 920 of the file Nombre147288., admitted as evidence for better provision (prueba para mejor proveer) at the oral trial).\n\n19) The company C. LTDA has registered in the National Registry, Industrial Property Registry (Registro Nacional, Registro de la Propiedad Industrial), the factory and trade mark (marca de fábrica y comercio), registration Nº 30/2011/5819, which consists of the sign denominated Nombre147289., to protect beer, registered on February 11, 2011, valid until February 11, 2021 (folio 460 of the judicial file admitted at the preliminary hearing).\n\n20) The company C. LTDA registered with the Ministry of Health (Ministerio de Salud) the food registration Nº Placa29363, for the brand Nombbre5689., golden ale craft beer, Nº A-6839-10, for the brand Nombre317., red ale craft beer, and Nº Placa29364, for the brand Nombre147285., red ale craft beer, starting November 10, 2010, expiring November 20, 2015 (folios 332 to 334 and 425 to 427 of the judicial file admitted at the preliminary hearing).\n\n21) The company C. LTDA, through the company C. R. LTDA, legal entity identification number Nº […], and whose partners are the same, markets the products manufactured by the plaintiff, as it is considered a sister company for that purpose (declaration of the plaintiff company's accountant, Nombre3640., received at the oral trial, collated with invoice Nº 0179 of June 18, 2012, admitted as evidence for better provision (prueba para mejor proveer) on the day of the oral trial).\n\n22) The phrase contained on the promotional label of the beer that states \"red ale will catch you with its aroma, will surprise you with its body and caramel color, and will finish you with a pleasant hoppy flavor. This beer will surely please the most demanding palates,\" could be considered suggestive, perhaps because of the strong term (sic) and caramel color (declaration of Nombre51314., rendered at the oral trial).\n\n23) The advertising campaign for the IMPERIAL brand reflected in the photographs visible at folios 260 and 263 were authorized by the IAFA for a brief period during 2011, which are not the same, similar, or alike to those managed by the company C. LTDA before that administrative body, since among several differences, it is evident that the poster (afiche) has an advertising concept related to summer, but does not contain phrases of any nature that assert qualities of the product, or that induce consumption, nor does it have images of beer containers, while the photos appearing at folios 261 and 262 correspond to an ad not authorized by the IAFA (declaration of Nombre5832., rendered at the oral trial).\n\nII.- FACTS NOT PROVEN (HECHOS NO PROBADOS).- The plaintiff did not demonstrate the following:\n\n1) That the rejection of the advertising labels (etiquetas publicitarias) prevented it from disseminating or marketing the products that the company manufactures, under the protection of its registered marks, affecting its sales projections for the year 2011 to the present;\n\n2) That there exists an administrative act (acto administrativo) of a general nature that regulates advertising matters, contrary to the principle of equality, or that the acts applying that regulatory norm are discriminatory to the detriment of its subjective rights or legitimate interests, benefiting other beer manufacturers;\n\n3) That the challenged administrative acts (actos administrativos) are vitiated by any ground for absolute nullity (nulidad absoluta);\n\n4) That there exist damages and lost profits (daños y perjuicios) attributable by causal link (nexo causal), arising from conduct attributable to the defendant Administration.\n\nIII.- The plaintiff party raised a claim, which undoubtedly stands out for its breadth, by requesting the nullity (nulidad) of everything that was done. However, this Court understands that the nonconformity claimed by the plaintiff company pertains to those final acts that denied the authorization for use of the advertising labels (etiquetas publicitarias), as a result of the different requests it made for that purpose. Likewise, we understand that it challenges the administrative acts (actos administrativos) that resolved the ordinary remedies (recursos ordinarios) it filed, including any procedural acts without independent effect (actos de trámite sin efecto propio) that served as the basis for the disapproving decision.\n\nConcomitantly, it challenges an act of a general nature, in particular the Reglamento applied by the Administration, as the direct normative source that grounded the denial of what the applicant requested; specifically, the plaintiff party shows its nonconformity with the content of subsections 3, 4, and 6 of Article 3 of that regulation. Added to the above is a claim for damages (pretensión indemnizatoria). In this context, the Court will review the relevant allegations of the parties and the defenses (excepciones) raised by the Estado.\n\nIV.- The Court proceeds with the analysis incumbent upon it, within the framework of Article 182 of the LGAP, referring to the subjective elements (elementos subjetivos) and objective elements (elementos objetivos) of the administrative act (acto administrativo), and then contrasts it with the legal system. Regarding the SUBJECTIVE ELEMENTS (ELEMENTOS SUBJETIVOS), starting with the administrative act (acto administrativo) of a general nature, we observe that the Reglamento sobre Regulación y Control de Propaganda de Bebidas Alcohólicas was issued in compliance with constitutional precept 140, subsection 18), with the intervention of the Executive Branch (Poder Ejecutivo), comprised of the President of the Republic and the Minister of Health (Ministro de Salud), who on August 26, 1974, promulgated the regulation, which entered into force upon its publication in the Official Gazette (Diario Oficial La Gaceta) Nº 168, of September 6, 1974. The normative source for the issuance of this regulation was Article 45 of Ley Nº 10, Ley sobre Venta de Licores, of October 7, 1936, amended by Ley Nº 5489 of March 6, 1974, which states:\n\nArtículo 45-Bis.- Todo tipo de propaganda en relación con el consumo de bebidas alcohólicas, que se haga por cualquier medio publicitario, será regulada y controlada por el Instituto Nacional sobre Alcoholismo.\n\nLa regulación y control no alcanza a las publicaciones que se inserten en el Diario Oficial, relacionadas con la inscripción en el Registro de Marcas y Patentes de nuevas clases o marcas de bebidas alcohólicas, ni a las que por el mismo medio haga la Fábrica Nacional de Licores, relativas a precios y otros avisos, conforme a las disposiciones atinentes. (underlining is not original)\n\nThe acts of individual application of that regulation, challenged here, that is, resolution SJCP-1113-12-10 at 7:00 a.m. on December 17, 2010, regarding the approval of the advertising labels (etiquetas publicitarias) for the brands EL M., Nombre147285., and Nombre5689., and resolutions Nº SJCP-1125-12-10 at 11:00 a.m. on December 17, 2010, referring to the case of Nombre5689. 2, as well as Nº SJCP-1126-12-10 at 11:00 a.m. on December 17, 2010, concerning the case of Nombre5689. 1, were issued by the Advertising Control Commission (Comisión de Control de Publicidad) of the IAFA, composed of Mr. Nombre5832., Coordinator of the Advertising Control Commission (Comisión de Control de Publicidad). Subsequently, the IAFA's Board of Directors (Junta Directiva), in ordinary session Nº 04-11 of February 1, 2011, issued agreements (acuerdos) Nº 8, Nº 9, and Nº 10, rejecting the appeal (recurso de apelación) and confirming resolutions Nº SJCP-1113-12-10, Nº SJCP-1125-12-10, and Nº SJCP-1126-12-10, ordering the issuance of resolutions JD-Nº 04-2011 at 1:00 p.m. on February 19, 2010 (sic), JD-Nº 05-2011 at 1:00 p.m. on February 19, 2010 (sic), and JD-Nº 06-2011 at 1:00 p.m. on February 19, 2010 (sic), all issued by the superior body that deemed the administrative channel (vía administrativa) exhausted.\n\nEven before concluding that avenue, the hierarchical body, to resolve the appeal, received the criterion of the Advisory Council on Advertising (Consejo Asesor de Propaganda), issued via official letter SJCP-0013-01-2011 of January 28, 2011, in accordance with which that advisory body concurred with the provisions of resolutions SJCP-1113-12-10, SJCP-1125-12-10, and SJCP-1126-12-10, recommending not to approve any of the pieces that make up the campaign submitted by the plaintiff company, thereby fulfilling the precedent ordered by **voto Nº 000257-F-S1-2011**, of the **SALA PRIMERA DE LA CORTE SUPREMA DE JUSTICIA**, issued at nine hours ten minutes on March tenth, two thousand eleven. A procedural act which, incidentally, need not be communicated to the administered party, as it produces no effects of its own. This means that the act of general scope, and those of individual application, emanated from those officials in the exercise of their specific powers. Note that it involves the Executive Branch (Poder Ejecutivo), resorting to its regulatory power, while the singular administrative acts come from the body provided for in Law No. 5412 of November 8, 1973, according to the reform introduced by Law No. 8289 of July 10, 2002, in particular:\n\n**Artículo 22.—** *IAFA shall be in charge of the technical direction, study, prevention, treatment, and rehabilitation of addiction to alcohol, tobacco, and other licit or illicit drugs; **furthermore, it shall perform other functions as established by law** and shall be responsible for coordinating and approving all public and private programs related to its purposes; it must manage the suspension or closure of such programs if they fail to comply with the guidelines stipulated for that effect.* (underlining not original)\n\nContext within which the procedure for issuing the general rule was observed, as well as the processing of the application submitted by the plaintiff and its subsequent challenges, confirming the specific competence of the body, including the investiture of the relevant officials, fulfilling the essential formalities. Thus, we find no infringement or omission whatsoever regarding the subject, the procedural phases, or the form of the administrative act that could potentially lead to absolute nullity, as the mandates of the law were fully respected.\n\n**V.-** Now it is appropriate to analyze the **OBJECTIVE ELEMENTS** of the administrative act, particularly referring to Article 3, subsections 3, 4, and 6, of the Regulation challenged by the plaintiff, and the final acts that disapproved the application of the interested company, adding those that declared the filed appeal without merit, which, of course, have a distinct nature from one another. It should be taken into account that the act of a general nature is of a regulatory kind, while the acts of individual application were issued specifically to resolve the requests raised by the plaintiff party. In view of the challenges, it is important to highlight that each of them refers to a **MOTIVE (MOTIVO)**, which is composed of the legal and factual reasons that make its issuance necessary. The Regulation on the Regulation and Control of Advertising of Alcoholic Beverages (Reglamento sobre Regulación y Control de Propaganda de Bebidas Alcohólicas), in its recital section, expressly mentions - as we already anticipated - the legal basis for regulating and controlling all types of advertising, constituted by Article 45 bis of the Liquor Law (Ley de Licores), this regulation having to be issued to achieve the full execution of the law, thus determining the means of action for IAFA, and setting the rules that serve as a basis for acting in the field of powers granted to it by law. The regulation is born in that sphere, as well as Article 6 challenged by the plaintiff, a provision whose reason for being is found in the preceding explanation. On the other hand, the singular acts applying the regulation precisely contain an administrative decision related to the applications submitted by the plaintiff company to IAFA, from which it expressly requested authorization to use a series of advertising labels as a means to promote its advertising, giving a certain image to the product, resorting to the information contained in the designs submitted to the process. Thus, the reason that prompted the issuance of said individual acts was to resolve the applications of the administered party; in other words, the motive (motivo) is not arbitrary, but rather the issuance of the final administrative acts and the subsequent resolutions that resolve the ordinary remedies correspond to the factual context pertaining to the interested party's petition, according to the framework of its application.\n\n**VI.-** That said, it is now appropriate to delimit the **CONTENT (CONTENIDO)** of the administrative act, whose purpose is the definition of the effect it will cause, as its immediate legal result, verifying that it is clear, precise, possible, and above all, **lawful (lícito)**. In this sense, we observe that the regulatory administrative act, in Article 6, expressly contemplated a series of conducts that cannot be authorized in the context of advertising. Regarding this provision, we must make the following clarification. The general act challenged in said article develops the content of a law; it is not an autonomous regulation that limits constitutional rights, according to the express prohibition indicated in Article 19 LGAP, also observing the general principle of prohibition of arbitrariness in the exercise of the power granted by the Magna Carta:\n\n*III. With respect to regulatory power, in judgment number 3410-92, at fourteen hours forty-five minutes on November tenth, nineteen ninety-two, the Chamber stated that: \"In Public Law, the regulation (and each of the decrees involved here, as provisions of a general nature, have that nature) is complementary to the law, since it does nothing other than execute it, and for this reason it is recognized as a secondary, subordinate, inferior, and complementary norm. If by virtue of the so-called principle of legality, [...] the Administration cannot exercise more powers than those expressly granted to it; if the regulatory power is subject to formal and substantial limits, and among these to the general principles of Law; if one of them is the so-called 'general principle of prohibition of arbitrariness in the exercise of regulatory power,' which obliges respect for the established hierarchical order and ultimately, to carry out an effective verification of the reality or certainty of the facts intended to be justified in the regulation, and of course, the proportionality or adequacy to the pursued end; and if, finally, those decrees are based on an article of law, which has done nothing other than modify the essential concept of the constitutional norm, then the decrees are also contrary to the Political Constitution and must be annulled, with the effects provided for in this judgment.\" On the same subject, in judgment number 0243-93, at fifteen hours forty-five minutes on January nineteenth, nineteen ninety-three, it was stated that: \"The regulatory power is the constitutional attribution granted to the Administration, which constitutes the power to contribute to the formation of the legal system, through the creation of written norms (Article 140, subsections 3 and 18 of the Political Constitution). The particularity of the regulation is precisely being a secondary and complementary norm, at the same time, to the law whose essence is its sovereign character (only limited by the Constitution itself) in the creation of Law. As the most qualified doctrine of Administrative Law highlights, the submission of the regulation to the law is absolute, in several senses: it is not produced except in the areas the law leaves it, it cannot attempt to nullify legal precepts or contradict them, it cannot supplant the law by producing a certain effect not desired by the legislator or regulating a certain content not contemplated in the norm being regulated. The administrative legal system has a hierarchical order, to which all State organs must subject themselves in accordance with the so-called principle of legality, or what is the same, that none of them is allowed to arbitrarily alter that hierarchical scale, which in our case has been enshrined in Article 6 of the General Law on Public Administration (Ley General de la Administración Pública).\"* (**SALA CONSTITUCIONAL, No.6689-96.** *San José, at fifteen hours fifty-four minutes on December tenth, nineteen ninety-six*) (see, among others, Voto Nº 6519-96, from that same Chamber)\n\nThat said, the scope of subsections 3, 4, and 6 of regulatory Article 6 challenged by the plaintiff company does not infringe upon the principle of legal reserve or that of the prohibition of arbitrariness, already mentioned, because it develops the content of the law, respecting its essential content and always within the framework of a specific competence conferred upon a body, without the general act, in said provision, introducing - by itself - discriminatory treatment to the detriment of the rights of the dissenting party (according to the argument made by the plaintiff in its lawsuit), nor does it transgress the constitutional or legality limit, since the challenged regulation does not contemplate sanctions, complying with the parameter of Article 124 LGAP, nor does it encompass other aspects that may be understood as foreign to the regulatory and control activity established in the transcribed provision 45 bis. The regulation is merely limited to describing the catalog of conducts that advertising cannot incorporate, in the case of an alcoholic beverage. The legislator established that the Executive Branch is responsible for regulating and controlling the matter, without limiting the exercise of that power to an **a posteriori** action, so its competence is also comprehensive of that exercised **a priori**, and for this purpose, the regulation established a series of restrictions pertaining to the advertising material, which, we understand, rather reinforces the principle of legal certainty, by establishing exhaustive grounds, although we think, not exclusive or excluding, as we will point out later.\n\n**Artículo 6.-** *Advertising for alcoholic beverages is especially prohibited when it falls under any of the following cases: 1) ... 2) ... 3) That which relates alcoholic beverages to the physical, anatomical, moral, or intellectual qualities of individuals, or to their abilities or virtues; 4) That which mentions stimulating effects of alcoholic beverages, whether of a physiological, psychological, or sociological nature; 5) ... 6) That which uses national symbols and folk music.*\n\nThat regulation is reasonable in dealing with a subject matter so sensitive for social coexistence, making it evident that the regulation of advertising material pertaining to alcoholic beverages locates its reason for being in the limitations that this economic activity must respect, which is not unrestricted, by the way, having to be subject to the limits imposed by **public order (orden público)**, **morality (moral)**, **good customs (buenas costumbres)**, in balance with **consumer rights (derechos del consumidor)**, which the **Sala Constitucional** well explains in its **Voto Nº 06469-97** at sixteen hours twenty minutes on October eighth, nineteen ninety-seven:\n\n*IX.- Articles 1, 3, 5, and 9 subsection a) of the Regulation to the Liquor Law, Executive Decree (Decreto Ejecutivo) 17757-G of September 28, 1987.- The challenge to these norms constitutes another subject matter of the actions. The unconstitutionality of those articles is requested, essentially, for the breach of normative hierarchy, legal reserve, legality, and regulatory power. Despite the regulation being very recent - from September 1987 - it is evident that it bears the same original defect of the Law on the Sale of Liquors, that is, it maintains the figure of the governor within the general scheme, despite this official lacking specific powers to regulate everything related to prior operating permits. The articles expressly state that the authorizing administration for any installation, transfer, or conveyance of the place of operation for a liquor license is the provincial governor (Art. 1°); it indicates a procedure to be followed (Art. 3°); the governor is granted discretionary powers to qualify operating permits, for which an expiration date is set (Art. 5°) and finally, subsection a) of Article 9 challenges the distances established therein as restrictions on the freedom of enterprise. On this last aspect, the Chamber in *judgment No. 6579-94 at fifteen hours twelve minutes on November eighth, nineteen ninety-four, upon rejecting on the merits the action filed against subsections a) and b) of Article 9 of the Regulation of the Liquor Law, stated the following*: .- *\"I.- The unconstitutionality of subsections a) and b) of Article 9 of the Regulation to the Liquor Law, Executive Decree (Decreto Ejecutivo) No. 17757-G of September 28, 1987 is requested, and the constitutional rights contained in Articles 9, 33, 44, 45, and 46 of the Political Constitution are alleged as violated, because the challenged subsections, by restricting the possibility of opening liquor sales to the public to a certain distance, create unacceptable inequality and limitations, as expressed in the actions. II.- The Liquor Law, No. 10 of October 7, 1936, and its reforms, provides in Article 42, as relevant: \"For the execution of this law, the Executive Branch shall issue its regulation, in which it shall especially take into account the provisions thereof that refer to the safeguarding of morality and good customs...\" In Judgment 1441-92 at fifteen hours forty-five minutes on June second, nineteen ninety-two, the Chamber stated the following: \"I.- Article 129 of the Political Constitution provides, among other things, that 'the waiver of laws in general, nor the special waiver of public interest laws, has no effect,' such that 'acts and agreements contrary to prohibitory laws shall be null, if the same laws do not provide otherwise.' **The concept included by the 1949 constituent, 'laws of public interest,' corresponds to what is known in doctrine as 'public order,' that is, those through which the State intervenes to ensure in society its moral, political, social, and economic organization.** In our Constitution, there are several references to that topic, such as, for example, the rules on electoral matters, the organization of public powers and their reciprocal relations, the protection of the family and the destitute; and regarding the special production of economically weak sectors, employer-worker relations, concern for popular housing, public education; and also derived legislation, regarding matters of tenancy, price controls on basic consumer goods, and the production and commercialization of certain crops basic to the country's economy, such as coffee and sugarcane, by way of example. The general basic principle of the Political Constitution is embodied in Article 50, by providing that 'the State shall seek the greatest welfare for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth,' which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in Article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and which defines it as a social State of Law.- II) **The Chamber estimates that the regulations of Decree No. 19042-MEIC of June 7, 1989, respond in their content to those principles of social public order, and are justified by the broad development promoted around the protection of consumer rights. In effect, it is notorious that the consumer is at the endpoint of the chain formed by the production, distribution, and commercialization of consumer goods they need to acquire for their personal satisfaction, and their participation in this process does not respond to technical or professional reasons but to the constant execution of contracts on a personal basis. Therefore, their relationship in that commercial sequence is one of inferiority and requires special protection against the providers of goods and services, so that prior to expressing their contractual consent, they have all the necessary elements of judgment that allow them to express it with complete freedom, and this implies full knowledge of the goods and services offered.** Included by what has been expressed, in a harmonious mixture, are several constitutional principles, such as state concern for the broadest sectors of the population when acting as consumers, the reaffirmation of individual freedom by facilitating the free disposition of their patrimony for individuals with the aid of the greatest possible knowledge of the good or service to be acquired, the protection of health when it is involved, the ordering and systematization of reciprocal relations among the interested parties, the homologation of international commercial practices to the internal system, and finally, the greater protection of the inhabitant's functioning in the means of subsistence.\" - III.- From what is transcribed, it is deduced that the measures the State adopts to protect its moral, political, social, and economic organization in society are of public social interest, and are manifested through the so-called \"Police Power (Poder de Policía)\", understood as the regulatory power over the exercise of rights and the fulfillment of constitutional duties; or better yet, as \"the incontrovertible right of every legally organized society, essential to its own conservation and defense, and belongs to every constituted government to ensure the achievement of social ends through the use of appropriate means for that purpose,\" as defined by the doctrine of Administrative Law. In its broadest sense, the Police Power comprises the measures tending to protect public safety, morality, and health, as well as the defense and promotion of the economic interests of the community and its general well-being. It manifests itself, in principle, as a power attributed to the Legislative Branch and is therefore non-delegable. However, an imputation of functions can be created in ordinary law, assigning to the Executive Branch, for example, the attribution to legislate on certain matters, within certain limits pre-established in the law. Such is what occurs in the present case, by virtue of what is expressed in Article 42 of the Liquor Law cited above. IV.- Regarding police power, the Chamber has stated: \"...but even if it is true that this is a fundamental right of citizens, that freedom cannot be unrestricted but is subject to the general interest, peace, tranquility, and public order, and above all, to the rights of those who are not part of that interested group. As it is ultimately a religious activity deployed within the scope of a residential zone, it is important to highlight that this practice is regulated by the so-called police power, in the sense that it is a mere control aimed at preventing attitudes contrary to the general interest and, better yet, the defense of the public interest linked to that activity, making the exercise of religious activity compatible with the essential purposes of urban planning law.\" (Judgment No. 401-91 at 14:00 hours on February 20, 1991, Recital II, and in the same sense, see Judgment No. 619-91 at 14:45 hours on March 22, 1991). From what is expressed, it is concluded that to the extent that there exists, in ordinary law, an imputation of functions, as occurs in the case under commentary, then, in exercise of the police power, a determined activity can be regulated, in order to protect public morality and order, as expressed in Article 28, second paragraph of the Political Constitution. V.- In the action, it is alleged that the challenged norms violate Article 45 of the Constitution and that limitations on private property can only be established through a formal law. The Chamber estimates that the alleged infringement does not occur, since none of the attributes of ownership are restricted. As the Office of the Attorney General of the Republic (Procuraduría General de la República) affirms, what is regulated is the exercise of a commercial activity, and on this aspect, the Chamber has stated the following: \"...without the actions of the Administration tending to bring any irregularity occurring in the exercise thereof to legality restricting the right to free exercise of commerce, a right which, in any case, is not absolute and which can be subject to regulation and even restrictions when superior interests are at stake, such as the problem of vehicular and pedestrian traffic, citizen security,...\". Consequently, it is appropriate to dismiss the action regarding the violation of property rights. VI.- Regarding the limitation on free trade, by reason of the imputation of functions made by Article 42 of the Liquor Law, for the protection of the superior values of nationality (morality, good customs, protection of children, religious sentiments), the Chamber does not find that the restriction defined by a distance from churches, sports facilities and health centers of all types, child nutrition centers and playgrounds, day care centers, schools, high schools, and other similar educational establishments, whether public or private, of preschool, primary, secondary, university, technical, and para-university education, and political clubs, is disproportionate or unreasonable. It is so evident that what is intended is to avoid the contact of the users of the indicated activities, especially children and students of all levels, with the consumption of liquor, that the scope of the regulation explains itself. That is, we are facing a typical case of regulation of an activity to protect, above all, the public order represented, basically, by the children and students of the country. The Chamber finds no accredited violation alleged against the freedom of commerce and consequently, neither that of Article 9 of the Constitution, and the action, based on the provisions of Article 9 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), based on the cited jurisprudential precedents...\" Confirmando esa jurisprudencia, procede, en consecuencia, declarar sin lugar las acciones acumuladas en cuanto a este punto específico.* (underlining not original)\n\nA concept - that of public order - which, furthermore, exempts the State and the Administration from any special damage that is contrary, precisely, to said public order, morality, and good customs, as the mandate of Article 195 LGAP states. Thus, one of the commercial activities especially regulated from this perspective is undoubtedly that related to alcoholic beverages, including the means used by companies to offer consumers that class of products to increase their sales and, consequently, their profits. A phenomenon in the face of which the State, as a referential axis linked to social coexistence (ref. Nombre147290. . -The Social Contract-), cannot be considered myopic. Along these lines, analyzing the plaintiff party's argument, we see how the challenged regulatory norm does not introduce, by itself, discriminatory treatment regarding any group, sector, guild, or individual, nor does it exceed the other legality parameters (as limits of administrative action) that have been studied, ex officio, without also observing indeterminate legal concepts, which, by themselves, are also incapable of generating nullity.\n\nRecall that we are **not** dealing with open-ended criminal statutes; moreover, we note in advance that the regulations studied cannot even be considered punitive in nature. Of course, a different case arises when the claimant alleges that individual application acts introduce an odious discrimination, violative of the principle of equality, a scenario in which we would have to study whether the administrative conduct incurred such a defect, based on the evidence provided by the litigants, in order to verify the figure of deviation of power (desviación de poder), but that analysis must be oriented towards reviewing the way in which the Administration applies the regulations to each specific situation.\n\n**VII. (cont.)-** For the purposes of analyzing the **CONTENT** of the individual application acts, it is important to keep in mind that the plaintiff company's questions essentially revolve around these aspects: 1) the legends printed on the advertising labels are not capable of producing—in the consumer—the effect attributed to it by IAFA, nor do they refer to qualities of persons or the product, nor do they infringe regulatory provisions; 2) the typical cart wheel is not a national symbol, but rather the complete ensemble of the cart is; in any case, the multicolored design contained in the advertising labels is not a cart wheel, but rather evokes \"NAIF\" art; 3) the woman presented on the Nombre147289 label, despite being questioned by IAFA because she is placed in a position, with clothing and a suggestive, attractive, and young attitude, implies discriminatory treatment, because the advertising material of other competing companies does include real women (not cartoons, like the design one), in suggestive positions and in bikinis; 4) the image of the bull related to the name Nombre317 does not indicate a stimulating effect nor has any relation to bullfights; 5) the label of the Nombre5689 brand makes reference to it being smooth and light, which is no different from the word light, approved for other beer brands; 6) the label indicating fresh beer and draft beer is treated in a discriminatory manner, because the suggestive attitude, position, and clothing has not been limited for other brands, where they use bikinis; furthermore, the wheel and cartoon images constitute logos in the process of registry inscription, protected under article 25 of Law No. 7978. This synopsis has no other purpose than to serve as guidance for the purpose of expressing the Tribunal's criteria, in the face of the assertions of the plaintiff, without purporting to be exclusive of the allegations in the claim. Entering into the matter, it is important to highlight that the most relevant ground for objection, verified by the Administration, was that referring to the legends or phrases found on the five labels submitted for approval. This Chamber clearly understands, from reading the contested individual administrative acts, as well as from the exposition given at trial, mainly by the witness Nombre5832., without the witness Nombre51314. having convinced us otherwise, that the phrases questioned by IAFA fall into the category of those that induce the purchaser of the product to adopt a certain pattern of behavior. Each phrase, in any case, must also be seen immersed in its context, which is the linkage existing between the advertising message and the images that surround it. Even being a witness offered by the plaintiff, Mrs. Nombre51314., in her statement recognized that the phrase contained in the promotional label of the beer that expresses ***red ale lo atrapará con su aroma, lo sorprenderá con su cuerpo y color caramelo y lo terminará con un agradable sabor a lópulo. Esta cerveza de seguro complacerá a los paladares más exigentes***, could be considered suggestive, perhaps because of the strong term (sic) and caramel color. That indication is important to understand that in her testimony she admits what she tried to refute in the written report contributed by the plaintiff, a document by which she sought to introduce some variables to discredit the reasoning contained in the final administrative acts. Nevertheless, the focus given by the private consultant, for the purpose sought by the plaintiff company, does not convince the Tribunal, in view of the fact that it is sufficient—just as her witness recognized—that the phrase be capable of leaving open the possibility of inducing the consumer to a determined behavior, to understand the background of the Administration's position. In any event, the statement of the IAFA official, Nombre5832., is more explicit, we believe, by reason of his experience in the position, allowing for a better understanding and, at the same time, complementing, the context of the administrative acts denying the referenced advertising. It is important to highlight that in the case of the Nombre5689 beer, the justification for which the advertising label was disapproved was that the expression ***Cerveza suave y liviana ideal para tomar en nuestro clima tropical y en las soleadas playas de Costa Rica*** makes mention of stimulating effects, because, without a doubt, that statement gives rise to thinking that the drink has the quality of refreshing people in our country's climate, being smooth and light, and furthermore, the assertion of refreshing can also induce deception in people, by leading them to consider that it is a soft drink, that is, a non-alcoholic beverage. In this sense, the Tribunal considers that the phrase induces the consumer, if they adopt the message in its literal sense, understanding that this is the ideal beer to drink, according to the tropical climate that characterizes us, and at the beaches. In this contour, the characteristics of the beer, such as smooth or light (\"light\"), were not questioned, but rather the problem arises when linking the effects that the phrase intends to highlight. For this label, the image of the woman was not questioned as an integral element of the advertising message. However, the central idea of the advertisement seems very clear, as the advertising leads the consumer to believe they should acquire that beer, which is ideal for drinking, in our environment. In the case of the Nombre147285 and Nombre317 beers, their labels share a same phrase, whose expression indicates ***Red ale lo atrapará con su aroma, lo sorprenderá con su cuerpo y color caramelo y lo terminará con un agradable sabor a lúpulo. Esta cerveza de seguro complacerá a los paladares más exigentes***, which was disallowed because it makes mention of various effects related to the drink, such as that it will trap the person, that it also surprises them, and that it finishes with them, pleasing the most demanding palates. Here it is not discussed—nor does the Administration question—what the color of a red ale type beer is, but rather that the label takes advantage of the description of that characteristic of the product to add advertising content, whose ulterior purpose is questionable, such as highlighting the effects of the drink that its manufacturer says it possesses, intermingling with aspects of a psychological nature, so that, it is understood, the sum of those elements will trap or surprise the buyer. Under that profile, the Administration's reasoning is understandable. Looking at the case of the Nombre147285 beer, apart from what was mentioned regarding the text of the label, it is very evident, as IAFA states, that the logo uses the image of a woman, in a suggestive position and gestures, with the name Nombre147285, like that Costa Rican legend, which refers to the imaginary of the beautiful woman, who presents herself to men, somehow exploiting her attributes, which identifies the message with an individual. In that sphere, the denial act explains that the advertising contained in the questioned text relates the beer to the qualities of persons, in this case a woman placed in a position, with clothing and a suggestive, attractive, and young attitude, that calls the consumer to buy the product. The image of the woman, individually considered, does not signify a major dilemma, but appreciated within the sphere of the advertising phrase, it acquires a suggestive dimension, which is precisely what the Administration refuted. Then, in the case of the Nombre317 beer, it was also assessed—in reference, again, to the text of the advertisement—that it uses the cartoon image and the name of a bull known in Costa Rica for the high risk involved in mounting the animal in national bullfights, hence this name, referring to a beer, manages to highlight stimulating effects, given that the person assumes them upon acquiring this alcoholic beverage. In view of IAFA's position, we consider that the argumentation on which the competent body bases itself to deny authorization is duly grounded, has not been subjected to contrary proof, and instead, has only confronted the thesis of the plaintiff company, which could be highlighted by its speculative focus, not by being supported by an effective demonstrative element, given that the statement of the witness Nombre147285. Nombre5689. does not convince the Tribunal for that effect, due to the absence of technical elements that lend credibility to her expertise, especially when confronting it with the content of the questioned administrative acts, an aspect that not only relates to the lack of specific suitability in the advertising field, although she possesses others related to psychology, but also because her opinions expressed in the written document do not allow accrediting that the content of the denial administrative acts are scientifically or technically incorrect, for the purposes of article 16 LGAP.\n\n**VIII.- (cont)** Very relevant is the issue that the text and images of the logos contained in the three labels, as well as in the two prints that would serve as advertising for billboards and similar, are associated with the image of the questioned typical design, contravening the cited Regulation that prohibits the advertising of alcoholic beverages related to a national symbol, such as the typical Costa Rican cart. The plaintiff insists that the design is nothing more than a rosette, with elements of \"NAIF\" art, without a specific pattern being evident; in any case, she affirms that the protection is for the typical cart, not the wheel. The Tribunal does not embrace the thesis of the proposing company, and understands the content of the denial administrative act to be justified, to the extent that it considers the wheel as an element of the typical cart, which must be understood as part of that symbol; moreover, adds the Tribunal, it could be an emblem in itself. Here we introduce an additional element, for we understand that the allegation in the claim implies that the protection of national symbols exists only to the extent that the legislator or the Executive Branch, the latter by decree, has declared a specific figure, work, animal, plant, intellectual creation, or similar, as a national symbol; otherwise, it does not deserve the regulation's protection and may well be used unrestrictedly in the advertising of alcoholic beverages. Faced with that affirmation, this jurisdictional body holds that a national symbol, for the purpose of authorizing specific advertising such as the one concerning us, besides incorporating those indicated by the plaintiff company, may contemplate others that, without being so recognized in a law or decree, represent the cultural identity of the Nation, including that of its institutions, and that deserve due protection, in safeguarding morality, public order, and good customs. For example, an advertisement that takes as a backdrop the main headquarters of the Contraloría General de la República, to promote the sale of an alcoholic beverage, could be **not** authorized, despite the fact that that building has not been declared a national symbol of the type referred to by the plaintiff. Obviously, such a thing is possible, in application of the rules of logic and convenience, of the cited article 16 LGAP, for constituting an element that defines the administrative and political organization, as part of the Nation's identity, because the building identifies an institution that represents the control mechanism of public function and finances, as part of the very essence of the rule of law. Moreover, the denial of such advertising would give rise to the exemption referred to in article 195 LGAP, mentioned above, for being an individual interest contrary to public order. It is not superfluous to clarify that in the exposed example, it is not about protecting the image rights of the State as a legal entity, which we are not suggesting nor recognizing, but rather that the use of the ethereal national identity and the specific symbols that identify it must be safeguarded, as part of the existing mechanisms to maintain peaceful coexistence in society, sufficient reason to prevent the commercialization of a beverage of that type, whose advertising is supported by a visual element, as would be the referenced building. Public order issues justify this thesis, an aspect that is innate to the topic, characterizing in this way the framework of the regulation of the consumption of alcoholic beverages, and of course, advertising does not escape such limits, as a commercial phenomenon that induces such consumption. A similar situation occurs with the typical cart, or the wheel as an essential element of it, its traditional colors and shapes, given that, despite the logo that the plaintiff company maintains registered as a trademark, the truth is that when attempting to use it for advertising purposes, it must overcome the control and supervision, according to the terms contemplated in the regulation we are analyzing. In this case, it is evident and notorious that the decorated wheel is a traditional element that characterizes the typical cart, so much so that a circle decorated in an artisanal style is often identified as part of its essence, even when seen separately. We understand that this is what the Administration expressed, by indicating that the typical cart, in particular, its decorated wheel, following a localist artisanal artistic pattern, not uniform but characterizable, should not be associated with the consumption of an alcoholic beverage. In this context, it remains beyond discussion whether denying the advertising submitted to the procedure limits the exercise of the plaintiff's rights, derived from the inscription of signs before the National Registry, as a trademark, or whether it infringes any international convention or national law on the use of a trademark, which is not actually being prevented, according to the statement of the plaintiff company's witness, its accountant Nombre3640., who explained how the company markets and sells its products under the trademark of interest, organizing that part of the business, even through another company, a sister company of the plaintiff, which handles that stage of the business. What is being discussed here is that the wheel, the design displayed there, and the colors it uses clearly identify a typical cart, or an essential element of it, which, linked to the text and other questioned images, in the cases where this was done, and dealing with advertising for alcoholic beverages, is a particularly sensitive aspect, mainly when the merchant captures that type of relationship or link for the purpose of promoting or selling a product, which is why the control of that type of advertising prevails, within the contour of the preservation of public order that governs this matter. In any event, we believe that article 25 of Law No. 7978, which the plaintiff alleges in its claim, actually refers to the right of defense of the trademark against third parties in cases of unauthorized use, which does not apply to the sub júdice, as it is not about that assumption.\n\n**IX.- (cont.)** The issue of unequal treatment, according to the action exercised, must lead us to the review of the pertinent evidence, provided by the plaintiff, which only allows concluding that the advertising labels are not in similar, alike, or equivalent conditions, compared with that advertising that IAFA recognized having authorized at the time, such as advertising campaigns for the Imperial brand, specifically those visible on folios 260 and 263, but not that contemplated in the videos, which did not yield any valuable evaluative parameter. Furthermore, these last ones involve moving images, which in itself shows that it is not an advertising mechanism even similar to the one the plaintiff submitted in order to obtain authorization from IAFA, which specifically involved printed material, composed of labels, with fixed images, accompanied by phrases with specific messages. With the foregoing clear, we must indicate that in the photographs referred to in the mentioned folios, as expressed by the witness Nombre5832., and as the Tribunal verifies, there is no legend present that makes mention of the product's characteristics or links it with qualities of persons, nor do they contain images associated with national symbols or emblems, or of another nature that merits administrative protection, to preserve public order, good customs, or morality, according to IAFA's specific competence. It is timely to recall that, although the central axis of the denial **has not** been the use of the image of the woman, but rather, mainly, the advertising phrases, reinforced in the context of the supporting images, questioning the use of the typical cart, or the wheel, as one of its elements, and the cartoon of a woman, in some of the cases, it is not amiss to refer to the manner in which control is exercised when dealing with the use of the human body as an advertising element:\n\n***IV.-** It must be clarified to the petitioner that it is not within the purview of this Chamber to assess whether the permit to publish the propaganda material in question should be granted or not, or to determine if the appealed office correctly resolved what was requested. It is necessary to recall that the amparo (amparo) appeal has the exclusive purpose of ensuring the validity of the fundamental rights and freedoms enunciated in the Political Constitution, except those protected by habeas corpus. Its intention is not to serve as a generic instrument to guarantee the right to legality; therefore, the petitioner's claim that the Office of Advertising Control be ordered to deliver the authorization numbers for the advertising material submitted to its control—which is part of that office's competence—cannot be accepted. In this sense, in judgment No. 2001-05695 at sixteen twenty-four hours on June twenty-six, two thousand one, this Chamber indicated the following: ‘… For its part, the National Office of Propaganda Control has the competence to control and regulate commercial advertising, pursuant to Law number 5811 of October ten, nineteen seventy-five: ‘Article 1.- All types of commercial advertising **that offend the dignity of the family** and in which the image of the woman is used immodestly to promote sales, shall be controlled and regulated with restrictive criteria by the Ministry of the Interior.’ (The highlighting is not part of the original) ‘Article 2.- For the purposes of the first article, propaganda or promotion material shall be considered: (…) b) (…) all that material intended for projection or transmission through television or cinema; (…)’ From the highlighted part, it is deduced that in this case, the appealed Office had the competence to hear the matter, given that what is being sought to be determined through the procedure initiated against the protected company is whether there is indeed an impact on minors and the way in which they perceive normal treatment towards animals, as minors are part of the family. In such a way that, without entering into considerations about the Chamber’s opinion in this regard, the competence of the appealed Office to ‘control and regulate’ the propaganda material is established, in this case the ‘Olympic’ Bags advertisement. …’ ‘…V.- Nor does this Tribunal consider that there has been a violation of the right to expression, since the advertisement was broadcast and thereby the right to expression was exercised; however, said right is not unrestricted, and therefore, through the process of a posteriori censorship, it was determined that it could be harmful to the correct development of minors, which is why it was no longer broadcast as a precautionary, and therefore temporary, measure. Finally, the Chamber also does not find that there has been a violation of the freedom of commerce, for the same reasons, said freedom is not unrestricted, and if the legal system empowers the appealed Office to suspend the presentation of the advertisement, this does not imply a violation of its freedom to market products through the desired advertising, given that if there are reasons to do so (as in this case), it can in no way be considered harmful to its fundamental rights, especially when carried out through a procedure respectful of the right of defense and due process. Based on the foregoing, this Tribunal finds no reasons to grant the appeal.’ **V.-** By virtue of the foregoing, it is not observed that the respondent party has incurred any act or omission contrary to the fundamental rights of the protected company; therefore, it is appropriate to declare the appeal without merit, as is hereby done.” (**SALA CONSTITUCIONAL.** **Voto Nº 2004-08957.** San José, at eight hours and fifty-one minutes on August twenty, two thousand four)\n\nMeanwhile, for its part, the First Chamber of our Supreme Court of Justice has stated:\n\n***VI.-** Grievances two and three will be analyzed jointly, because they seek to demonstrate IAFA's competence to restrict the use of the image of women in advertising related to alcoholic beverages. The Tribunal considered that IAFA's competence is limited “to the assessment of the ‘association or connection’ between the product and the qualities or attributes of the models that promote it; the gender defense arguments presented are unjustifiable due to the regulatory restriction set forth above, and it is therefore appropriate to annul resolution SJCP-875-11-05 for the body having exceeded its competence when evaluating the advertising submitted for approval.” (folio 299). This Chamber considers that, when dealing with the authorization of advertising material for an alcoholic beverage, such as ..., beer, IAFA possesses sufficient competence to address that subject. In this sense, canon 6 of the Regulation provides, “The Institute shall be the competent body to ensure the execution of this Regulation, and consequently, all advertising for alcoholic beverages carried out through any advertising medium must have its prior and express approval.” As for the use of the image of women in such advertising, IAFA is also empowered to prohibit that material that “relates alcoholic beverages to the physical, anatomical, moral, or intellectual qualities of individuals, or to their abilities or virtues.” (article 3 ibidem). In the present case, what was submitted for examination by the Institute were photographs of women with the following characteristics: blonde, slender bodies, and with little clothing, where the described blondes are evidently associated with the beer, a fact that authorizes prohibiting the advertising, as was indeed done. However, beyond the cited regulatory norm, there are higher-ranking norms of mandatory compliance in the national territory, such as international treaties subscribed to and approved by Costa Rica; among them, those of interest here are those that protect the honor, integrity, and dignity of persons, more specifically those referring to women. In this sense, the American Convention on Human Rights or Pact of San José (approved in Law No. 4534) establishes that, “1. Every person has the right to have his physical, mental, and moral integrity respected.” (article 5) And that “1. Every person has the right to the respect of his honor and the recognition of his dignity.” (article 11) And it even authorizes that, “4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence,…” (article 13) On the other hand, the Convention on the Elimination of All Forms of Discrimination against Women (approved by Law No. 6968) proposes the commitment to “a) Modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” (article 5, subsection a) And the Convention to Eradicate Violence against Women, Nombre147291 (approved Law No.\n\n7499), in its Article 8, subsection g), provided: “encourage the media to develop appropriate dissemination guidelines that contribute to eradicating violence against women in all its forms and to enhancing respect for the dignity of women.” Consequently, if the Costa Rican State has the commitment and obligation to prevent those practices that undermine the image of women, and given that what was presented to the IAFA were photographs in which women are represented as instruments or objects, since the female profile used exploits the physical and anatomical characteristics of the models, the Institute is obligated to prohibit the material. Certainly, one might think that respect for the image of women is a meta-legal issue, yet even with that position, the truth is that it permeates the law, as it represents the values of a society at a given moment and as such must be respected by the community. In light of the foregoing, the majority of this Chamber considers that the cited advertising undermines the image of women; therefore, the IAFA acted correctly in denying it, which leads to upholding the charges brought. (FIRST CHAMBER OF THE SUPREME COURT OF JUSTICE. Voto Nº 000198-F-S1-2010 San José, at fifteen hundred hours on February fourth, two thousand ten)\n\nIn the case of the design of the advertising label for Nombre147289 ., or the label with the legend Nombre147292 , it is reiterated that it was not disallowed due to the simple use of the female image, in exercise of a type of censorship to safeguard modesty, but rather that the evident cause was the texts that induce the consumer, legends that, coupled with the caricature-like figure of a woman, ultimately reinforce the Administration’s objection. In addition to the cited phrases and their message, it is notable that the strongest link supporting the denial is represented by the wheel, as an element of the typical oxcart, a national symbol. The images, it is added, must be seen in that context, and not alone, since the labels were not denied because recourse was had to the physical contour of the person, or her caricature, but because of what they represent, according to the specific contour of the message conveyed by the questioned phrase. Therefore, to insist that there is discriminatory treatment, because the printed advertising visible on folios 260 and 263 promotes degrading treatment of women and men, is nothing more than reiterating the differences that precisely demonstrate that we are not in the presence of similar or comparable advertising among themselves, but rather that they are distinct, of different contents, whose sole common link is that both refer to beer brands and that they use the printed medium to promote the campaign, but that, on a factual level, the manner in which the message is presented, directed at the consumer, is very different. One directly induces the purchase of the good, by explicitly linking the qualities of the people with the characteristics of the product, as has been described, in reference to the questioned texts, together with the image of the typical oxcart or one of its elements, while the other, which promotes the competition, in no way puts forward those references. Therefore, we reiterate that these are not equal, similar, or comparable situations, but rather different advertising campaigns, with a presentation of images or texts that are dissimilar to each other. It is evident that the content of the administrative acts that denied the advertising authorization, as well as those that exhausted the administrative route, in addition to being clear and possible, are undoubtedly lawful (lícitos), under the terms of Article 132 of the LGAP, and the Court has engaged in their analysis, considering it relevant to understand the cause that prompted the Administration to make the final decision applied in this case.\n\n**X.-** **EXCEPTIONS AND COSTS.-** Having elucidated the case, it is appropriate to grant the exception of lack of right (falta de derecho) filed by the State, rejecting those of lack of current interest (falta de interés actual) and lack of standing (falta de legitimación). The latter because a link exists between both parties, since the plaintiff corporation filed a series of proceedings that culminated in the denial of the requested authorization, which empowers them to sue and be sued, thereby retaining the current interest (interés actual) in having the matter resolved by a judge, given that no legal impossibility applies thereto. The lack of right (falta de derecho) is granted because the contested administrative acts do not present any defect meriting a declaration of absolute nullity, while the procedure was processed in accordance with the law, which affects the claim for damages, making it clear that there is no damage or injury attributable to the Administration, in a causal link with conduct imputable to the co-defendants. Having said all of the foregoing, since there is no merit to exonerate, the general rule applies, and the plaintiff is ordered to pay both costs.\n\n**THEREFORE**\n\nThe exception of lack of standing (falta de legitimación) and lack of current interest (falta de interés actual) are rejected. The exception of lack of right (falta de derecho) is granted and, consequently, the lawsuit is dismissed in all its aspects. The plaintiff is ordered to pay procedural and personal costs.\n\n**Alner Palacios García**\n\n**Laura García Carballo** **Nombre34161**\n\n**(Judge García Carballo does not sign the judgment as she is enjoying vacation; however, it is recorded that she participated in the deliberation and concurred with her affirmative vote)**" }