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Peru

Last Verified on Wednesday 29th May 2019

    • Peru

      In Peru, an invention is considered to be new when the invention has not been accessible to the public for any reason and anywhere in the world before the filing date of the patent application or the priority date if the foreign priority regulated in the Paris Convention was invoked.

      Also, the invention must have an inventive level to be patentable, which means that the invention should not be obvious to a person normally skilled in the technical matter corresponding to that invention.

      Last verified on Wednesday 29th May 2019

    • Peru

      The intellectual property authority will evaluate the background of the previous art by making a joint assessment of such background and from the general knowledge that an average technician would have with respect to the relevant subject. The idea is to determine if this average expert would have arrived from a simple deduction to the technical solution for the corresponding problem. However, it is not assumed that an expert would know absolutely all documents or previous patent applications that qualify as background.

      Last verified on Wednesday 29th May 2019

    • Peru

      In Peru two types of patents can be obtained: patents for inventions, either product or procedure, and patents for utility models. Industrial designs as well as the protection of layout designs of integrated circuits are protected by specific registers and must be registered as such, but they are not considered patents.

      Last verified on Wednesday 29th May 2019

    • Peru

      The duration of the protection of an invention patent is 20 years and the duration of the protection of the utility model patent is 10 years. In both cases, the period is counted from the date of submission of the corresponding application.

      Last verified on Wednesday 29th May 2019

    • Peru

      There are no requirements applicable to a foreign licence. In all cases, patent licensing agreements must be registered with the Intellectual Property Authority for them to take effect against third parties.

      Last verified on Wednesday 29th May 2019

    • Peru

      The plans, rules, and methods for the development of economic-commercial activities are not considered inventions and therefore are not patentable. Likewise, computer programs or software, as such, are excluded from the possibility of being protected by patents because they are not inventions but can be protected as works (copyright system).

      Last verified on Wednesday 29th May 2019

    • Peru

      The duration of an infringement proceeding of a patent in an administrative proceeding is six months from the formal accusation until the first instance resolution. The appeal to the administrative court resolution takes between eight months and one year. 

      The duration of a criminal proceeding of a patent crime before the District’s Attorney office (first instance) is between 18 months and two years, and in the superior appeal courts (second instance) the timetable is between two and three years.

      Last verified on Wednesday 29th May 2019

    • Peru

      Patent holders can file an infringement complain to initiate a procedure before the intellectual property agency. The agency can impose economic sanctions and order to certain measures to ensure the termination of the illegal activity. Also, patent holders can seek monetary damages before a court.

      For the purpose of calculating compensation for damages, the following criteria, among others, are taken into account: the consequential damage and loss of profits suffered by the right holder as a consequence of the infringement; the amount of the benefits obtained by the offender as a result of the acts of infringement; or, the price that the offender would have paid for a contractual license, taking into account the commercial value of the infringed right and the contractual licences that had already been granted.

      Last verified on Wednesday 29th May 2019

    • Peru

      The Intellectual Property Authority in our country brought out the Patenta Programme, whose main objective is to provide support to independent inventors, companies, universities and research centers in the protection of their inventions, innovations or product designs. 

      Through the programme, and through a virtual tool called IDENTI-PAT, protectable material is identified in inventions, innovations or designs, its potential for patentability is analysed and guidance and advice is provided for the adequate preparation of national applications for invention patents, utility models or industrial designs that emerge from these developments.

      Likewise, the implementation of the National Network of Technology and Innovation Support Centers (CATI) was initiated in coordination with the World Intellectual Property Organization (WIPO) with the objective of decentralising the services related to intellectual property in the country.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, our country recognises the patent exhaustion doctrine when it establishes that the patent does not give the right to prevent a third party from carrying out acts of trade with respect to a product protected by the patent, after that product had been commercially introduced in any country by the patent holder, or by another person with their consent or economically linked to it. In addition, when the patent protects biological material capable of reproducing, the patent shall not extend to the biological material obtained by reproduction, multiplication or propagation of the material introduced in commerce, provided that the reproduction, multiplication or propagation was necessary to use the material in accordance with the purposes for which it was introduced into commerce and that the material derived from such use is not used for multiplication or propagation purposes.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, our trademark clients make use of the Andean Community Trademark System mainly in two ways: presenting what is commonly known as “Andean oppositions” – oppositions supported by a trademark registered in a different country from the Andean Community – or in the context of procedures regarding the cancellation for lack of use of the trademark where the relevant use can be demonstrated in any country from the Andean Community. 

      We do not use the Mercosur trademark system.

      Last verified on Wednesday 29th May 2019

    • Peru

      The duration of trademark rights protection is 10 years counted from the corresponding registration. The right may be renewed successively in stretches of ten years each as long as the request for renewal is filed between the six months prior to the expiration of the right and up to six months after said expiration.

      Last verified on Wednesday 29th May 2019

    • Peru

      The use of the denomination "registered trademark", "MR" or another equivalent is prohibited along with signs that do not have a trademark registration with the competent Directorate of Peru. The adoption of those identification symbols that do not have a registered trademark will be sanctioned by the competent Directorate, with the confiscation of the products and the destruction of the identification signs.

      Last verified on Wednesday 29th May 2019

    • Peru

      The main problem that affects trademark owners in our country is the lack of enforcement carried out by the authorities in charge in particular when it comes to criminal prosecution. At present, the National Institute of Defence of Competition and Protection of Intellectual Property performs operations to combat this problem.

      Last verified on Wednesday 29th May 2019

    • Peru

      At present, operations are carried out by the Fiscal Police, the National Superintendency of Customs and Tax Administration, the Specialised Attorney in matters of Intellectual Property to combat counterfeiting, adulteration and piracy.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, it is recommended that the domain name be registered as a trademark. It is not mandatory, but it is recommended because the domain name is not an intellectual property right and therefore there is no exclusive right over it. Therefore, it is always recommended to register the domain name as a trademark because registering it as a trademark gives you an exclusive right with which you could take action against another confusing domain name. 

      Last verified on Wednesday 29th May 2019

    • Peru

      The trademark coexistence agreements are a particularity that is not well understood by foreigners who do business in Peru. These agreements are final contracts under which the parties adopt actions to reduce the risk of confusion and thereby try to make a trademark registration and its registration coexistence viable. The parties to this agreement have to comply with the minimum requirements or contents set by the authority. Foreigners must bear in mind that trademark coexistence agreements must necessarily have the clauses dictated by the precedent of mandatory observance established by the National Institute of Defence of Competition and Protection of Intellectual Property.

      Last verified on Wednesday 29th May 2019

    • Peru

      The key legal issues to be considered when registering a trademark in Peru are the following: that they have distinctiveness, that they do not consist exclusively in usual forms of the products or their packaging, or in forms or characteristics imposed by the nature or function of said product or service concerned; that they do not consist exclusively in forms or other elements that give a functional or technical advantage to the product or service to which they are applied; that they do not consist exclusively in a sign or indication that can be used in commerce to describe the quality, quantity, destination, value, geographical origin, time of production or other data, characteristics or information of the products or of the services for which said sign or indication is to be used, including laudatory expressions referring to those products or services; that they do not consist exclusively in a sign or indication that is the generic or technical name of the product or service in question; etc.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, a multi-class trademark application can be filed in Peru. A multi-class registration refers to a single application in which products and/or services belonging to more than one class of the International Classification of Goods and Services of Nice have been included. The application will result in a single registration.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, Perú allows trademark opposition proceedings within thirty days following the date of publication of the application. Whoever has legitimate interest, may present only once, a founded opposition to prevent the registration of the trademark. 

      The deadline for filing an opposition cannot be extended under any circumstances.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, Peru has a control channel assigned by a computer system to which the commodities are subject. Through the red channel the commodities are subject to a physical examination by which the customs officer verifies the nature, value, tariff classification and other aspects of the merchandise. In addition, the Specialised Directorate of the National Police of Peru has the function of preventing, combating, investigating and denouncing at the national level crimes against intellectual rights related to copyright and related rights, and industrial property.

      Last verified on Wednesday 29th May 2019

    • Peru

      In Peru there was a provision stating that the licensor was responsible for the quality of the products, but that provision was removed from the old Legislative Decree. In the current Peruvian development norm, there is no mention or legal consequence foreseen in the legal system, nor of abandonment.

      Last verified on Wednesday 29th May 2019

    • Peru

      At present, there are no legal requirements that must be observed. However, a franchise agreement should include, in addition to a brand licence, replication obligations of the successful business model, franchise manual, instructions and technical assistance that consequently must be given by the franchisee to the franchisor to ensure that the replicated model is adjusted to the original model conceived.

      Last verified on Wednesday 29th May 2019

    • Peru

      A control requirement by the licensor is not applicable to the licensee. It is not necessary to register the licence agreements to be opposable to third parties nor is there any express provision that refers to the maintenance or liability for defects or quality of the product marketed under the licensed brand. Likewise, our legal system does not include warning of loss of ownership of the trademark by not satisfying any type of duty of supervision or control of the licensee.

      Last verified on Wednesday 29th May 2019

    • Peru

      The registration of a trademark expires as of full right if the owner or who has a legitimate interest does not request the renewal within the legal term, including the grace period of six months counted from the date of expiration of the registration to request its renewal.

      Last verified on Wednesday 29th May 2019

    • Peru

      The copyright protection does not depend on the existence of any registration with which it is enough that any promotional material has the condition of originality necessary to qualify as a protected work and it will have, for that single fact, the copyright protection in Peru without the need of registration. Without prejudice to this, in cases in which it is especially important to safeguard a particular creation or ensure its protection, it is always advisable to register the work with the National Institute of Defense of Competition and Protection of Intellectual Property as a mater of security.

      Last verified on Wednesday 29th May 2019

    • Peru

      The duration of copyright protection in Peru is 70 years counted from 1 January of the year following the death of the author. In collaborative works, the protection period will be counted from the day first of January of the year following the death of the co-author.

      Last verified on Wednesday 29th May 2019

    • Peru

      Although at present the implementation of safe harbours that protect internet service providers has not yet been carried out. Peru is obliged to do so under the free trade agreement signed with the United States.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, our country recognises the first sale doctrine sale when it establishes that when authorised commercialisation of the copies is made through the sale or other form of transfer of ownership, the owner of the patrimonial rights cannot oppose the resale in the country for which they have been authorised, but retains the rights of translation, adaptation, arrangement or other transformation, public communication and reproduction of the work, as well as authorising or not the leasing or public lending of copies. 

      It is understood as distribution, making available to the public original or copies of the work through the sale, exchange, exchange or other form of transfer of ownership, rent, public loan or any other form of use or exploitation.

      Last verified on Wednesday 29th May 2019

    • Peru

      The Copyright Law in Peru establishes that no authority or natural or legal person can authorise the use of a work or any other production protected by this law, or lend its support to said use, if the user does not have the prior authorisation and written by the owner of the respective right, except in cases of exception provided by law. In the case of non-compliance the user will be jointly and severally liable.

      Last verified on Wednesday 29th May 2019

    • Peru

      The sanctions for crimes against intellectual property in Peru are the following: the unauthorised manufacture or use of a patent is punishable by imprisonment, fine days and disqualification; the penalty of the cloning or adulteration of telecommunications terminals consists of imprisonment and fine days; the unauthorised use or sale of an industrial design or model is punishable by imprisonment, fine days and disqualification. Likewise, the preventive seizure and definitive confiscation may be applied in the crimes envisaged.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, Peru recognises the protection of intellectual property in database in the Law on Copyright as a compilation of works, facts or data in printed form, in a computer storage unit or in any other way.

      Last verified on Wednesday 29th May 2019

    • Peru

      Yes, through the Law of Repression of Unfair Competition the right of publicity is recognised referring to acts of improper exploitation of the “personality” of others in commercial settings. The Peruvian Unfair Competition Law establishes what is called a “general clause” that allows interested parties to file a complaint regarding any kind of act that is considered to be against the “good faith” in the market. For example, there are cases in which the authority has imposed sanctions for using the image of third parties for commercial purposes.

      Last verified on Wednesday 29th May 2019

    • Peru

      In cases of infractions it is possible to request a conciliation hearing and conclude the issue in that way. In all cases, the transactions or agreements will have the corresponding effects except in the case of trademark coexistence agreements in which case they must observe the rules of the precedent applicable in the National Institute for the Defence of Competition and the Protection of Intellectual Property. In general, the parties can resolve their conflicts alternatively if they wish.

      Last verified on Wednesday 29th May 2019

    • Peru

      The holders of copyright, related rights or trademark rights, or their legal representatives or attorneys-in-fact can register in the National Superintendency of Customs and Tax Administration (SUNAT) Voluntary Register, for which they must submit a file addressed to the National Customs Technique Intendance (INTA) to the Documentary Processing area providing the required information.

      Last verified on Wednesday 29th May 2019

    • Peru

      On the one hand, when precautionary measures are dictated, they expire with the resolution that definitively resolves the administrative procedure, unless the complaint for infringement of rights has been declared unfounded in the first instance, in which case it expires with the issuance of the decision. In this way, precautionary measures will potentially have a longer duration. 

      On the other hand, the aforementioned reform introduces a new figure of industrial property in Peru specifically aimed at protecting traditional recipes and methods of production or transformation referred to a traditional practice applicable to a product or food. Such new elements of industrial property are called guaranteed traditional specialties.

      Likewise, in September 2018, a legislative decree came into effect, modifying the previous Decree on industrial property to improve efficiency in the framework of modernising and simplifying procedures.

      Last verified on Wednesday 29th May 2019

    • Peru

      In October 2018, the Copyright Commission of the National Institute for the Defence of Competition and the Protection of Intellectual Property ordered the precautionary measure of ceasing to use DNS-based blocking and the URL-based blocking of the website called RED DIRECT for contributing to the realisation of acts of retransmission of emissions without having prior authorisation and in writing, as the body required to execute said measure was ENTEL PERU SA.

      Last verified on Wednesday 29th May 2019

    • Peru

      For the registration of any act of disposition or affectation of intellectual property rights, it is enough that it be recorded in a private instrument and the signatures have been certified by a Notary. If the document is extended abroad, it must be legalised by a Peruvian consular official.

      Last verified on Wednesday 29th May 2019

    • Peru

      On the one hand, in the Peruvian legal system, without prejudice to the administrative sanction that may correspond, the affected party has expedited his or her right to pretend to obtain damages against any injury he or she may have suffered. 

      On the other hand, specific penalties are provided in the computer crime law for the interception of computer data, illicit access to a computer system, for the attack on the integrity of data and computer systems.

      Last verified on Wednesday 29th May 2019

    • Peru

      Taxmust be paid on the rents that come from trademarks. For the purposes of income tax, the trademark must be seen as a good that in a certain period, from different perspectives, will allow its owner, in a certain period, to receive a flow of income subject to quantification and; consequently, to the taxation of said tribute. 

      To determine the amount of income tax to be paid to the Treasury, the situation in which the trademark is exploited must be previously determined, as part of a company or not, and then the condition of the owner who operates the brand must be taken into account.

      The income obtained by natural persons domiciled in the country that comes from the application or separate exploitation of capital and labour should be grouped under the Global Net Taxable Income regime.

      Last verified on Wednesday 29th May 2019

    • Peru

      In the first place, it is recognised that the ownership of intellectual property rights could constitute a risk factor insofar as it attributes market power, inasmuch as that the mere recognition of such rights does not generate antitrust immunity in Peru. Likewise, when the authority considers that the owner of a patent develops activities that affect free competition, the use of compulsory licences to correct possible abuses is expressly allowed in our regulations. 

      Second, it should be noted that it will be up to the competition agency to evaluate each specific case, since there are no guidelines such as the one in force in the European Union Transfer Block Exemption Regulation.

      Last verified on Wednesday 29th May 2019

    • Peru

      In Peru, in the event of bankruptcy, no intellectual property licence right survives. However, if it is determined that the bankruptcy was fraudulent, the affected party could file a compensatory action. Notwithstanding the foregoing, in the scenario in which the licence agreement has established a specific solution to bankruptcy, we consider that the will of the parties expressed in the contract should prevail.

      Last verified on Wednesday 29th May 2019

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