What constitutes 'use'?


Lilie Delion

This article considers the criteria used by the Peruvian trademark office to resolve cancellation for non-use of trademarks.

Within the scope of Decision 486 of the Andean Community, in Peru, a trademark might be cancelled when it has not been used for three years after receiving a certificate of approval (including the notice of resolution which grants the registration of the brand).

But there are problems with the administration’s interpretation of the time when such notice is received. It considers it necessary that the certificate is physically collected at the registration division of the Peruvian trademark office in order for the notification which grants the mark to be considered ‘carried out’.

This interpretation means that an applicant might pick up the certificate many months or even years after the issue of the notice, or even never take the notification. This makes it impossible to start counting the three years of non-use of the mark in order to request its cancellation, and therefore the trademark is effectively removed from the market, avoiding its commercialisation by interested third parties.

Peru, trademark use, Andean Community