Border measures
These 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.
These 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.
The 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.
The recordation proceeding is fast, lasting just 45 days. The 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 after the merchandise has been seized."
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.
This period can be automatically extended for another 10 working days. If no infringement action is filed, the suspension is concluded. This 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. This in turn encourages investment in trademarks and generates an economic benefit for trademark holders, leading to further investment that ultimately helps develop society.
Lilie Delion is a senior manager at Estudio Delion. She can be contacted at: lcd@estudiodelion.com.pe
Alain C. Delion is an intellectual property partner of the international department at Estudio Delion. He can be contacted at: vcd@estudiodelion.com.pe
