Peru – Latam Guideline
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- Peru – Latam Guideline
Trademarks
Patents
Designs
Customs
Data protection
Regulatory
Trademarks
WIPO-administered Treaties:
Contracting Party of the Madrid System: NO.
Trade Mark Law in force:
Decision 486 of the Andean Community. The Andean Pact Decision provides for one common trademark law among the member countries (Bolivia, Colombia, Ecuador, Peru). It does not provide a common registration procedure, but it provides for certain reciprocal rights to be available upon request of the trademark owner. For example, an entity that first applied for registration of a trademark in any Member Country, may lodge an opposition against a similar mark filed in the other Member Countries.
Legislative Decree 1075 provides national complementary regulations to Decision 486.
Classification:
Nice classification, 11th edition.
Multiclass Applications:
YES.
Registrable trade marks:
All distinctive and graphically representable signs, such as words, names, acronyms, letters, numbers, devices, emblems, colors, combinations or shades of colors, three-dimensional forms, the three-dimensional form of a good or its packaging, holograms, sound marks and any combination of the mentioned signs.
Formal filing requirements:
- Power of Attorney merely signed (no legalisation and no notarisation required) within 60 days from the official request.
- Certified copy of the priority application and its translation to Spanish within 9 months from the filing application.
Examination:
Absolute grounds for refusal: YES.
Relative grounds for refusal: YES.
Opposition period:
30 days from publication date.
Average time from filing to grant:
Approximately 3-4 months unless any obstacles were raised.
Term of protection:
10 years from the date of registration.
Use requirements:
YES. Cancellation can be requested if the trademark has not been used for 3 years in any member state of the Andean Pact, counting from the registration date. Partial cancellation is possible.
Renewal terms:
6 months prior to renewal date.
Grace period: 6 months.
Patents
WIPO-administered Treaties:
Contracting Party of the Paris Convention: YES
Contracting Party of the Patent Cooperation Treaty (PCT): YES. Due term for entry into national phase: 30 months.
Patent Law in force:
Decision 486 – Andean Community (Cartagena Agreement Dec 1, 2000)
Types of protection available:
Patent of Invention; Utility Model.
Formal filing requirements:
- Power of Attorney merely signed (no legalization required) within 60 days from office action. 60 days extension of term.
- Assignment document from the inventors duly notarized and legalized within 60 days from office action. 60 days extension of term. Not required if labour agreement.
- Certified copy of priority application within 16 months from priority (not required for entry into national phase of PCT applications provided that PCT/IB304 form is available).
- Sequence listings must be filed in WIPO Standard ST.26 format.
Filing of the patent application in a foreign language:
NOT possible.
Substantive examination must be requested by the applicant:
YES, within 6 months from publication.
Search report must be requested by the applicant:
NO
Observations by third parties:
YES, within 60 working days from publication.
Opposition:
YES, within 60 working days from publication.
Average time from filing to grant:
4 years.
Term of protection for patents:
20 years from filing date.
Term of protection for utility models:
10 years from filing date.
Differences between utility model and patent:
UM suitable for utensils, instruments, tools, apparatus, devices, or any parts thereof but not to chemical products, methods or uses; lower threshold for inventive step.
Maintenance:
Yearly also during prosecution of the application.
Marking of the product with the application/ patent number:
NOT mandatory.
Compulsory licensing:
YES
Designs
WIPO-administered Treaties:
Contracting Party of The Hague System: NO.
Applicable Law:
Decision 486 of the Andean Commission Community. Legislative Decree 1075
Grace period for filing applications, from disclosure:
1 year.
Multiple design applications -one application for different embodiments-available:
NO.
Formal filing requirements:
Power of Attorney. Merely signed. 60 days from Office Action.
Assignment document, notarized and legalized up to Apostille. 60 days from Office Action.
Certified copy of priority application when applicable.
Identification of applicant and designer.
Name of the design/ full details of the designer / applicant
Graphic representation or photo. Always in A-4 format.
Type of products the design will be applied to.
Locarno classification:
YES.
Deferred publication:
NO.
Registration Proceeding Outline:
Filing. Formal examination (no substantive examination, unless requested by a third party). Publication. Opposition. Grant
Opposition:
YES. Before granting and within 30 days from publication. Nullity proceedings are also possible once the design is granted.
Average time from filing to grant:
8-12 months.
Term of Protection and Maintenance:
10 years. No maintenance fees required.
Customs
Does it accept an administrative request for surveillance?
YES
Intellectual property rights protected through an administrative request for surveillance
Trademarks
Copyrights
Requirement to file for an application of an administrative request for surveillance
List and Registration of Trademarks
Certificate of Registrationc
PoA
Procedure (special aspects)
Although there is an Administrative surveillance procedure, once a counterfeit product is found, there is no simplified administrative procedure for the destruction of the goods.
The Customs Authority will suspend the release of the imported merchandise upon verification of the applicant’s ownership of the right.
The holder of the rights will have a short deadline to confirm the request to suspend the release of the goods.
In this deadline the holder must prove to have initiated an action for infringement or trademark complaint (administrative). Once the action for infringement or trademark complaint has been filed, it is decided if a precautionary measure is granted. The destruction of the merchandise is only possible by means of a final or consented resolution of the trademark infringement or complaint action. The resolution in this complaint does not impose compensation for the infringement. For this, a civil action would have to be initiated.
Data protection
Territory: Perú
Data Protection Regulations: Ley No. 29733, Ley de Protección de Datos Personales
Regulatory purpose: Guarantee the fundamental right to the protection of personal data, provided for in Article 2.6 of the Political Constitution of Peru, through its appropriate processing, within a framework of respect for the other fundamental rights recognised therein.
Parties:
- Data controller: Yes: Natural person, legal person under private law or public entity that determines the purpose and content of the personal data bank, the processing of personal data and the security measures.
- Data Processor: Yes: Any natural person, legal person under private law or public entity who alone or acting jointly with another person carries out the processing of personal data on behalf of the owner of the personal data bank by virtue of a legal relationship that binds him/her to the owner and delimits the scope of his/her action. It includes whoever carries out the processing without the existence of a personal data bank.
- Data Protection Officer: Yes, it does not apply to the private sector, only to the public sector.
Supervisory Authority: National Authority for the Protection of Personal Data: General Directorate for Transparency, Access to Public Information and Protection of Personal Data.
Principles:
- Principle of legality
- Principle of purpose
- Principle of proportionality
- Principle of quality
- Principle of security
- Principle of adequate level of protection
- Principle of consent
Obligations:
- Register of Processing Activities: No.
- Impact Assessments: No. However, according to the principle of proportionality and purpose, it must be assessed that the data processing is proportionate to its purpose.
- Risk analysis: No. However, according to the principle of proportionality and purpose, it must be assessed that the data processing is proportionate to its purpose.
Technical and organisational security measures: Yes. - Duty to inform: Yes.
- Data Protection Officer: Only in the case of public entities.
- Other obligations: Register personal data banksRegister transborder flows of personal data. Implement mechanisms for handling requests for the exercise of ARCO rights.
Data subjects’ rights:
- Right of Access: Yes.
- Right of rectification: Yes.
- Right of Suppression: Yes.
- Right to limitation: Yes.
- Right to portability: No, however, by virtue of the right of access, the data controller is under an obligation to provide the information to the data subject in a readable and accessible format.
- Right to object: Yes.
- Automated individual decisions, including profiling: No.
- Other rights:
Right to objective processing: The holder of personal data has the right not to be subjected to a decision with legal effects on him or significantly affecting him, based solely on a processing of personal data aimed at evaluating certain aspects of his personality or conduct, unless this occurs within the framework of the negotiation, conclusion or execution of a contract or in cases of evaluation for the purpose of incorporation into a public entity, in accordance with the law, without prejudice to the possibility of defending his point of view, in order to safeguard his legitimate interest.
Right of safeguard: In the event that the holder or the person in charge of the personal data bank denies the holder of personal data, totally or partially, the exercise of the rights established in the Personal Data Protection Law, the holder may appeal to the National Authority for the Protection of Personal Data by means of a complaint or to the Judicial Power for the purposes of the corresponding action of habeas data.
Right to be compensated: The holder of personal data who is affected as a result of non-compliance with the Personal Data Protection Law, by the holder or by the person in charge of processing personal data or by third parties, has the right to obtain the corresponding compensation, in accordance with the law.
International transfers:
For the international transfer or transborder flow of personal data, a sufficient level of protection for the personal data to be processed or at least comparable to that provided by the Personal Data Protection Act, or by international standards in the field, must be ensured.
A sufficient level implies a level of protection that encompasses at least the provision of and compliance with the guiding principles of that law, as well as technical security and confidentiality measures, appropriate to the category of data concerned.
Where the recipient country does not have an adequate level of protection, the sender of the transborder flow of personal data must ensure that the processing of personal data is carried out in accordance with the provisions of the Personal Data Protection Act, subject to certain exceptions set out in the Act.
There is no list of countries considered safe or with adequate levels, but through advisory opinions, the authority has indicated that some jurisdictions, such as the European Space or Mexico, do have adequate levels.
Sanctioning regime:
Failure to comply with the provisions of the Personal Data Protection Act may result in the imposition of fines of up to USD 107,000 approx. The authority may also impose corrective measures, such as the issuance of orders for the cessation of the infringing conduct. The authority can also issue interim measures.
Certification or accreditation of compliance for companies: No.
Other highlights: Cross-border flows, as well as the processing of personal data, in general, should be laid down in legal instruments (contracts), which regulate the obligations and responsibilities of the data subject and the data processor.
Other related legislation: Law No. 29571, Code of Consumer Protection and Defence: This law establishes, based on the provisions of the Personal Data Protection Law, that consumer data such as e-mail, telephone, etc., can only be subject to marketing with prior, express, free and informed consent.
Regulatory
Products that can be registered:
Food, cosmetics and medicines.
Authority to which registration must be applied for:
General Directorate of Medicines, Supplies and Drugs (DIGEMID).
Legal person who can apply for product registration:
Pharmaceutical chemist.
Do you require company registration in the country?
NO
Is a Certificate of Free Sale (CLV) required?
YES
