For each trademark application in Peru, the Peruvian intellectual property office (INDECOPI) will conduct an examination process including the following stages.
Formality examination
The formality examination will begin after about 01 month from the date of application.
At this stage, INDECOPI considers whether the application has met the formality requirements. The formal requirements usually include information about the application owner, trademark samples (representation of trademark), Power of Attorney.
If there is any formality requirement has not been met, INDECOPI will send a notice (Office action) to the applicant. In it, all the formality issue will be listed. The applicant has 60 working days from the date of notification to make the required revisions, such as submit a Spanish translation for the priority application. If the requirements are not met on time, the application will be refused and the applicant will lose the right of priority.
Publication of application
Once the formality requirements are fulfilled, INDECOPI will publish the application in the Official Gazette, Diario El Peruano. The applicant need to pay additional fee for this step. This fee is collected with other initial fees.
The purpose of this stage is to give other entities a chance to oppose the application. The third parties have 30 labor days from the date of publication to file an opposition.
If an opposition is filed, the registration will be suspended until the opposition is resolved. The competent authority will issue its first decision on the opposition after 10 months. If this decision is appealed, it may take an additional 09 months for the second decision to be made by the competent authority. The second decision is the final one.
Substantive examination
If the statute of limitation for opposing is lapsed and no opposition is filed, or all of the oppositions are resolved, the substantive examination will begin.
At this stage, INDECOPI decides whether or not the mark is met the substantive requirements. According to Peruvian law, two essential requirements are distinctiveness and capacity of graphic representation. INDECOPI will refuse registration of the mark if the sign is identical or confusingly similar to a registered trademark or an applied mark which has priority date. Marks include prohibited signs will also be refused.
Distinctiveness is the capacity of a sign to differentiate, identify the goods or services so that consumers be able to request them.
Capacity of graphic representation of a sign is the capacity of being perceive in a form of images.
Note: Graphical representation is not the same as visual representation. In Peru, non-visible mark can be registered but they still need to be able of being represented in a form of images. For example, if a sound mark is a melody, it needs to be represented with a stave; or if it is other sounds, it need to be represent with a spectrogram.
At the end of this stage, INDECOPI will decide to grant or refuse the application. A written notice will be send to the applicant. In case of refusal, all of the issues will be listed in the notice.
Receiving appeal
After issued a refuse notice, INDECOPI will give the applicant a period of 15 labor days to raise an appeal. This period begins from the date of notification (the digital signature date).
