World Intellectual Property Review Digital Digest 2009

PERU
PERU
mandatory licensing and/or technology transfer obligations in favour of merchandise. In that case, customs may request the petitioner to issue a
the legal benefi ciary of the genetic resources or traditional knowledge bond of 20 percent of the value of the merchandise before it withholds the
• Patents may be declared null and void not only due to causes that would
merchandise for three days. Th e petitioner then has 10 days to fi le a formal
have prevented the grant, such as lack of novelty or lack of inventive
complaint with Indecopi.
step, but also in cases where the patent offi ce fi nds the existence of fraud,
Data protection
misrepresentation or inequitable conduct.
• Th e health authority is obliged to protect test data or other non-disclosed
trademarks
information required to assess a product’s safety and effi cacy when
registering a new pharmaceutical product. Provided that the product
• Th e most important development in trademark legislation is the multi-class
contains a new chemical entity and that the obtention of the subject
system, by which a single application for products or services comprising
data has demanded considerable eff ort, it will be protected against any
more than one class may be fi led and will count as a single registration.
unauthorised use, and the registration of any product containing the
Th ese applications may subsequently be divided into as many diff erent
new chemical entity will not be allowed for fi ve years from the date
applications as the applicant requests
of registration
• Additionally, several new provisions aim to improve trademark procedures,
• Th e provisions in this law do not limit third-party rights to request
making formal requirements to fi le documents more fl exible; providing fi xed
health authorisations for products whose test data is protected, provided
terms for the fulfi lment of missing requirements in applications; allowing
that they support the product’s safety and effi cacy based on their own
multiple amendment requests in a single procedure; eliminating the need
data. Also, these provisions do not limit the application of expedited
to register licences in order for these to be enforceable before third parties
health registration procedures based on bioequivalence and bioavailability
and for the licensed trademarks to be considered in use; regulating collective
studies
marks and certifi cation marks; prohibiting denominations of origin that
• Test data to support safety and effi cacy, fi led in any product registration
are confusingly similar to prior trademarks or applications; and regulating
procedure worldwide, of a new (i.e. containing an active ingredient
the use of criteria such as graphic, phonetic and conceptual likeness in the
registered for the fi rst time) chemical plaguicide for agricultural use, will
comparison of wordmarks, device marks and composite marks.
be protected for a period of 10 years from the marketing authorisation
granted in Peru. During this period, the Peruvian Agriculture Authority
Copyright
will not, without the consent of the party that originally fi led the protected
• Th e Copyright Law has been amended to include a defi nition of ‘eﬀ ective
data, issue any market authorisation for a similar product based on the
technological measures’ and infringements consisting of circumventing
protected data or based on a prior market authorisation.
the measures in order to gain unauthorised access to copyrighted material.
Th e amendments also cover the manufacture of products that are intended
to facilitate a circumvention.
Enrique Cavero Safra heads the competition law and intellectual property
practice group at Hernández & Cía. Abogados. He can be contacted at:
Border measures
ecavero@ehernandez.com.pe
• A voluntary IP rights registry has been created at customs, as well as a
cross-reference information system shared with Indecopi
• Th e terms ‘piracy’ and ‘forgery’ are defi ned as the infringement of
Enrique Cavero Safra heads the competition law and
copyrights and trademark rights, respectively
intellectual property practice group at Hernandez & Cia.
• Th e new law allows customs to withhold merchandise ex-oﬃ cio when it Abogados. He is a member of the national self-Regulatory
is reasonable to presume that it may be forged or pirated, immediately Advertising Commission and has been invited to speak at
notifying the IP rights owner and granting them a three-day term to fi le an multiple international forums, such as IntA, IBA, AsIPI and
infringement complaint with Indecopi
GALA, among others.
• Th e interested party may also request the withholding of suspicious
124 World Intellectual Property Review Digest 2009 www.worldipreview.com
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