PERU Law and Practice Contributed by: Alvaro Echeandía, Alfred Kossuth Wieland, Pilar Santillán Meza and Rodrigo Varillas Cueto, Thorne, Echeandia & Lema Abogados
the use of the trade mark to obtain its renewal or to keep it in force beyond three years. From the third anniversary of its registration, the trade mark may be cancelled for lack of use by any interested party, being the only case in which it is necessary to prove the use of the trade mark. The exhaustion of trade mark rights is interna - tional. The commercial slogan is always protected in association with a trade mark (whether regis - tered or pending), which must be clearly identi - fied in the application and is granted or denied based on the attributes of the phrase that inte - grates the commercial slogan regardless of the associated trade mark. Trade names, which are signs that identify an economic activity, an enterprise, or a commer - cial establishment, enjoy protection by the mere fact of their use in the market. Indeed, the pro - tection of a trade name is acquired by its first use in commerce and ends when the use of the name ceases or when the activities of the company or establishment using it cease. The registration of a trade name with the DSD is not constitutive of rights but is merely declaratory of rights (it recognises and declares the date of first use). The owner of a used but unregistered trade name may prevent third parties not only from using in commerce an identical or similar distinc - tive sign capable of causing confusion but may also prevent the registration of an identical or similar trade mark applied for to protect goods or services similar or related to the economic activities identified by such trade name capable of causing confusion with it. The exclusive right over a trade mark confers on its owner the right to prevent any third party from performing, without their consent, the fol - lowing acts:
• applying or affixing the mark or a distinctive sign identical or similar on goods for which the mark has been registered; • removing or modifying the mark for com - mercial purposes, after it has been applied or affixed on the goods for which the mark has been registered; • manufacturing labels, containers, wrappings, packaging or other materials that reproduce or contain the mark, as well as marketing or holding such materials; • using in commerce a sign identical or similar to the trade mark in respect of any goods or services, when such use could cause confu - sion or a risk of association with the owner of the registration; • using in commerce a sign identical or similar to a well-known trade mark in respect of any goods or services; and • publicly using a sign identical or similar to a well-known trade mark, even for non- commercial purposes, when such use could cause a dilution of the distinctive force or of the commercial or advertising value of the trade mark. Actions for infringement of trade mark rights are administrative proceedings before the DSD of INDECOPI, which may lead to the granting of precautionary measures of cessation of use, confiscation or immobilisation. The process is followed in double administrative instance, with the Intellectual Property Chamber of the Court of INDECOPI (SPI) acting as the second and final administrative instance. Within three months after its notification, the final decisions of the SPI may be challenged before the Administrative Court of the Judicial Power (PJ) through 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.
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