Cancellation of a Trademark in Peru: Legal Procedure and Considerations
The cancellation of a trademark in Peru is a legal process that can be initiated under specific circumstances, primarily regulated by Decision 486 of the Andean Community and Legislative Decree No. 1075. This procedure is crucial to ensure that trademark rights are effectively used and do not become obstacles to free competition and the use of distinctive signs in the market.
Grounds for Cancellation
The main grounds for the cancellation of a trademark in Peru include:
- Non-Use: According to Article 165 of Decision 486, a registered trademark must be used in commerce within a continuous period of three years from the date of registration. If it is not used, any interested party may request the cancellation of the trademark. The burden of proof of use lies with the trademark owner, who must demonstrate that it has been used in a real and effective manner in commerce.
- Generic and Confusion: A trademark may be canceled if it has become generic, that is, if it has become the common designation for a product or service. Additionally, if a trademark is registered and it is shown to cause confusion with a previously registered trademark or with prior rights, it may be subject to cancellation.
- Fraudulent or Bad Faith Registration: If it can be proven that a trademark was registered fraudulently or in bad faith, the registration may be canceled. This includes cases where the intent was to take advantage of the reputation of another’s trademark without authorization.
Cancellation Procedure
The procedure for the cancellation of a trademark is initiated by submitting a request to the National Institute for the Defense of Competition and the Protection of Intellectual Property (INDECOPI). The key steps include:
- Filing the Request: The interested party must submit a formal request, arguing the specific grounds for cancellation, accompanied by relevant evidence.
- Notification to the Trademark Owner: INDECOPI notifies the trademark owner about the cancellation request, granting them a period to respond and present evidence to counter the applicant’s arguments.
- Evaluation of Evidence: INDECOPI evaluates the evidence presented by both parties. In the case of non-use, the trademark owner must present evidence of continuous and effective use during the required period.
- Decision: INDECOPI issues a resolution on the cancellation of the trademark. If the resolution is favorable to the applicant, the trademark is canceled from the registry. This decision can be appealed to higher instances within the Peruvian administrative and judicial system.
Final Considerations
It is important for companies and trademark owners in Peru to maintain proper registration and use of their trademarks to avoid cancellation risks. Regular market monitoring and active protection of trademark rights are essential to maintain their validity and exclusivity. Additionally, legal advice is fundamental to effectively navigate the procedures and regulations associated with trademark cancellation.
If you want to cancel the trademark of a person or a company or on the contrary you are immersed in this process. Get advice from us.
