BORDER MEASURES
JURISDICTION REPORT: PERU
Lilie Delion and Alain Delion
Estudio Delion
In February 2009, improvements to border measures for protecting Peruvian trademarks and copyrights came into effect. Tese enhance the detection and immobilisation of counterfeit and pirate products coming into Peru and prevent damage to rights holders. Customs can immobilise not only products in transit, but also those imported for trade in Peru.
Tese measures have their legal basis in Legislative Decree No. 1092 of June 28, 2008 and its regulation, Supreme Decree No. 003-2009-E of January 13, 2009, which approve border measures for the protection of trademarks, copyrights and related rights. It is worth pointing out that Peru’s customs implemented the system about three months ago and, currently, it is possible to record trademarks at the Peruvian customs administration.
Te proceeding starts with the submission of an application by the rights holder or its legal representative to the customs administration, which asks the trademark office for its previous opinion in order to record a trademark registration. Recordation before customs must be renewed within the first 30 days of the year. If no renewal is filed, this recordation will lapse at its expiry date.
Te recordation proceeding is fast, lasting just 45 days. Te National Superintendent of Tax Administration (SUNAT), which is the national body in charge of these proceedings, has done a good job facilitating the protection of trademarks, through the speed of recordation and the fast issuing of the relevant official notice confirming it.
Once a trademark is recorded before the customs administration, suspected counterfeit merchandise can be immobilised whenever it is detected. To this purpose, the law provides 10 working days in order for the rights holders to file an administrative or judicial infringement action and communicate this to the customs administration aſter the merchandise has been seized. Tis period can be automatically extended for another 10 working days. If no infringement action is filed, the suspension is concluded.
Tis proceeding has sped up the protection mechanisms for registered trademarks by enhancing the recordation process and complementing it with better methods for detecting counterfeits.
Finally, it helps guarantee investment in Peru because it leads to better enforcement and increases the stability of legal institutions. Tis in turn encourages investment in trademarks and generates an economic benefit for trademark holders, leading to further investment that ultimately helps develop society.
50 World Intellectual Property Review March/April 2010
lcd@estudiodelion.com.pe
vcd@estudiodelion.com.pe
www.worldipreview.com
“ONCE A TRADEMARK IS RECORDED BEFORE THE CUSTOMS ADMINISTRATION, SUSPECTED COUNTERFEIT MERCHANDISE CAN BE IMMOBILISED WHENEVER IT IS DETECTED. TO THIS PURPOSE, THE LAW PROVIDES 10 WORKING DAYS IN ORDER FOR THE RIGHTS HOLDERS TO FILE AN ADMINISTRATIVE OR JUDICIAL INFRINGEMENT ACTION AND COMMUNICATE THIS TO THE CUSTOMS ADMINISTRATION AFTER THE MERCHANDISE HAS BEEN SEIZED.’’
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