PERU Law and Practice Contributed by: Alvaro Echeandía, Alfred Kossuth Wieland, Pilar Santillán Meza and Rodrigo Varillas Cueto, Thorne, Echeandia & Lema Abogados
of INDECOPI (SPI) acts as the second instance. The only exception is when the Commission of Distinctive Signs of INDECOPI (CSD) acts as second instance in cases of appeals against resolutions of the DSD that reject ex officio trade mark applications. Within three months after its notification, the final decisions of the SPI may be challenged before the Contentious Administra - tive Court of the Judicial Power (PJ) via a con - tentious-administrative lawsuit (DCA). The filing of a DCA before the PJ does not suspend the effects of the challenged SPI decision, unless the PJ issues a non-innovative injunction. The process of registering a trade mark involves the publication of the application for opposition purposes, with the term for third parties to file opposition being 30 working days. If the applica - tion for registration of a trade mark faces oppo - sition from third parties, the terms of resolution are extended to no less than nine to 12 months per instance. For the registration of a trade mark, it is suggested that a search be made of previ - ous antecedents. If the trade mark is free, the applicant must file the application for registration with the complete data of the applicant; identify the trade mark (include design if applicable; in colours if applicable); clearly identify the goods/ services to be protected; the class; identify the priority application to claim foreign priority and the date and country of the same (it must be claimed within six months of the original applica - tion, while the certified copy of the priority appli - cation may be submitted within three months after the expiration of the term to claim priority); attach a copy of the power of attorney (which does not require any certification); and pay the corresponding official fee. The registration process of a trade mark, within a procedure in which the application and all the complete docu - mentation has been filed, without any opposi - tion from third parties, has a duration of two to
three months until the registration certificate is obtained. On the other hand, in the process of renewing the ten-year validity of a trade mark registration, the renewal application must be filed with the com - plete data of the applicant; identify the registra - tion number of the trade mark and class; attach a power of attorney (which does not require any certification); and pay the corresponding official fee. Provided that it is a procedure in which the application and all the complete documentation have been submitted, it will take approximately one month. Although there is a supranational norm that reg - ulates, at the level of the Andean Community of Nations (CAN), the exclusive rights granted on distinctive signs, there is no Andean Community Trade Mark. However, it is important to note that trade marks applied for and/or granted under the scope of Decision 486 have some suprana - tional effects, namely: (i) base an opposition on a mark previously applied for and/or registered in a CAN member country other than the country where the opposition will be filed; (ii) prove use of the mark in the country where it is registered by evidence of use coming from a CAN member country other than the country where the mark is registered and has been summoned in cancel - lation for non-use; and (iii) prove the notoriety of a mark with the recognition of such notoriety that would have been granted in a different CAN member country. The registration of a trade mark is constitutive of rights, and its validity of ten years starts to be computed from the date of its concession. Used and unregistered distinctive signs are not considered trade marks. It is not required to prove the use of the trade mark in the country to register it as such. Nor is it required to prove
658 CHAMBERS.COM
Powered by FlippingBook