PERU Law and Practice Contributed by: Alvaro Echeandía, Alfred Kossuth Wieland, Pilar Santillán Meza and Rodrigo Varillas Cueto, Thorne, Echeandia & Lema Abogados
Licences granted for the use of trade marks must be in writing and registered with the DSD in order to be enforceable against third parties. In turn, acts of disposition of trade marks must be registered before the DSD, since the lack of such registration will cause the transfer to be ineffective against third parties. A trade mark may be declared absolutely invalid at any time – either ex officio by the DSD or at the request of third parties – provided that it has been granted contrary to the absolute prohibi - tions of registration. Up to five years from the date of grant of a trade mark, a relative nullity of a trade mark may be declared – either ex officio by the DSD or at the request of third parties – provided that it has been granted in contraven - tion of the relative prohibitions of registration. 7.3 Industrial Design The protection of industrial designs in Peru is regulated by Decision 486, Common Regime on Industrial Property and by Legislative Decree No 1075, which contains complementary provisions of local application to Decision 486. The appearance of a product resulting from any meeting of lines or combination of colours, or from any two-dimensional or three-dimension- al external shape, line, contour, configuration, texture or material, without changing the des - tination or purpose of such product, shall be considered as an industrial design. The novelty requirement of the industrial design is of world - wide scope, so that the disclosure of the same prior to the filing of the application in Peru breaks the novelty requirement (except for the excep - tions to disclosure expressly set forth in Article 17, Decision 486). Industrial design applications are filed before the Directorate of Inventions and New Technologies
of INDECOPI (DIN) and may claim priority from the Paris Convention or from a member coun - try of the CAN (certified copy of the application whose priority is claimed (apart from the pat - ent office certification, no other certification is required)). The protection of creations via indus - trial design includes flat designs, three-dimen - sional designs and colour designs. Together with the application for registration of the industrial design, the drawings with all views including a perspective drawing (isometric) must be submit - ted: • the design’s assignment agreement must be filed in case the designer is a person other than the applicant (it must be executed with signatures and representation duly certified by a public notary and certified by apostille or Peruvian Consulate, a scanned copy of the original assignment agreement will suffice); • power of attorney (which does not require any certification, or original, scanned copy will suffice); and • proof of the payment of the official fees (nov - elty examination official fees will be paid only if a third-party opposition is filed). The industrial design registration application is published for the purpose of opposition by third parties, who may file the opposition within the following 30 working days. The term of the pro - cess for the granting of an industrial design in a proceeding without third-party opposition is usually four months. Industrial designs are pro - tected for a term of ten years from the filing date and are not renewable upon expiry. The registra - tions before the DIN are constitutive of rights, so the absence of protection prevents the exercise of infringement actions against unauthorised third-party users. Annuity fees must not be paid to maintain the validity of the application and/or the industrial design once granted.
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