How to register trademark in Peru ? Republic of Peru (República del Peru), established in 1821, is a South American country. This is a country with great potential for economic and trade development and surplus resources of gold, zinc, silver and oil. The Peruvian government has committed itself to the pursuit of trade liberalization and has started to fulfill this commitment with the signing of multiple international trade agreements since 2006.
Peru joined WIPO in 1980 and is a member of many international treaties within the WIPO framework. Some of the most important treaties relating to trademarks are, for which Peru is a party, the 1995 Paris Convention, the 2009 Trademark Law Treaty. Peru is not a member of the Madrid Agreement and the Madrid Protocol. .
Trademark in Peru
According to the Peruvian Trademark Law (Andean Decision 486), a trademark is a distinctive sign capable of graphic representation, so that both are essential requirements for its registration. Distinctiveness is the capacity of a sign to individualise, identify and differentiate in the market the goods or services, making it possible for consumers to request them.
According to article 134 of Decision 486, the following signs, among others, may constitute a trademark:
- words or combinations of words;
- pictures, figures, symbols, graphic elements, logotypes, monograms, portraits, labels and emblems;
- sounds and smells;
- letters and numbers;
- a colour with borders to generate a specific shape, or a combination of colours;
- the shape of a product, its packaging or wrappings; and
- any combination of the signs or means indicated in the items above.
In Peru, the following non-traditional trademarks can be protected: olfactory, tactile and taste marks. Three-dimensional trademarks are also protected.
While non-visible signs could be registered as trademark, applicants are still required to submit the graphic representation for the marks. In case of sound marks, a graphic representation may be a stave if the mark is a melody, or a spectrogram if the mark is other sounds.
In Peruvian law, there are also provisions on refusal of protection. Signs that must be rejected according to Peruvian law include:
- Signs are lacking in distinctiveness (that is generic, descriptive, usual in common business language)
- Signs reproducing or imitating national flags, national emblems
- Signs reproducing or imitating emblems, names, abbreviations of international organizations or state agencies
- Signs that would be infringements of intellectual property rights of other entities
- Signs that its registration is considered to give rise to unfair competition acts
- Signs affecting the identity or prestige of legal entities
First to use or First to file?
In Peru, the first to file principle is applied, except for famous trademarks.
Under this principle, in case there are many applications filed by different persons for registration of identical or confusingly similar marks for identical or similar products or services, the protection title may only be granted for the mark in the valid application with the earliest priority or filing date among applications.
In contrast, some countries, like Canada, USA, Australia, apply the first to use principle. Under this principle, intellectual property rights will be granted to the first applicant to use the trademark, regardless of the filling date.