JURISDICTION REPORT: PERU
SEVERE SANCTIONS IN TRADEMARK CASES: CORRECTIVE MEASURES
Fayssy Delion Estudio Delion
The control exercised by the administration in relation to the improper use of registered trademarks is very important, because it is a key component in the regulation and inspection of the proper operation of the market.
This is vital for enforcing trademark rights and guaranteeing that third parties will not use a trademark without a prior consent. All this can be achieved by having adequate sanctions whenever a third party makes an unauthorised use.
Administrative sanctions, in contrast to criminal sanctions, are limited to fines, so it is vital that fines are large enough to deter infringing behaviour. In this sense, fines should be imposed according to the seriousness of infringement committed.
On some occasions, sanctions have been limited to warnings or amounts less than $500, so providing no deterrent for companies that import counterfeit goods. Counterfeiting remained a profitable option for offenders who avoided the costs of requesting authorisations or purchasing original merchandise.
As an example, we would like to quote two cases in which fines of 18 and 11 Applicable Tax Units ($24,000 and $15,000 respectively) were imposed on companies that imported fake ball bearings from China under the trademark of a Sweden-based company (and client of ours). In these cases, due to the huge quantity of imported merchandise and taking into account the threat to our client’s interests, the government body imposed these fines. If actions had not been initiated, the offenders would have obtained large profits at the expense of someone else’s trademark.
We believe it is very important for the government body to act this way, because it favours the proper development of the market for the benefit of consumers, especially in relation to the business origin of goods. Furthermore, infringement behaviours will be restricted and these fines will serve as a lesson for those who try to import and market counterfeits.
It is clear that the above-mentioned procedure grants many benefits for all parties, because wrong actions are duly punished, granting confidence in the market. This is very important for the development of commercial relationships in Peru, benefiting the investments and the participation of Peru in the international market.
Additionally, this administrative behaviour generates a positive image of Peru for the international community, which will eventually
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encourage greater inflow of capital from overseas, increasing trade ties between Peru and the rest of the world, and discouraging unscrupulous traders who seek to profit by acting outside the rules.
Fayssy Delion is a founding partner and manager at Estudio Delion. He can be contacted at:
fcd@estudiodelion.com.pe
World Intellectual Property Review May/June 2012 67
“ADMINISTRATIVE SANCTIONS, IN CONTRAST TO CRIMINAL SANCTIONS, ARE LIMITED TO FINES, SO IT IS VITAL THAT FINES ARE LARGE ENOUGH TO DETER INFRINGING BEHAVIOUR."
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