Design rights in Peru: introduction

Scope
Procedure
Oppositions
Infringement

Scope

Design rights protect the particular appearance of a product and confer to the owner the exclusive rights to an industrial design against third parties.

Technical creations (also known as "inventions"), words, phrases and shapes necessary for the assembly or connection of one product to another under recognised standards cannot be protected by industrial designs. This is because these are shapes that, given their function, must remain freely available and no exclusivity rights should be assigned to them.

Procedure

The procedure begins in the Peruvian Patent Office. Once an application is submitted, it goes through a formal examination process, where the admissibility requirements are evaluated. This can take up to one month.

After this stage is complete, the application is published in the Electronic Gazette of Industrial Property. After 30 days, the examiner evaluates the application (known as the "registrability exam"). This can take between five months to one year.

After the registrability exam, the examiner will either deny or grant the industrial design. If it is denied, a resolution is issued. If it is granted, a resolution to grant the industrial design is issued. In this case, the Peruvian Patent Office issues a title granting the industrial design.

Oppositions

Design right registrations can be opposed on the grounds of, for example:

• the existence of a prior right in force; or
• the design's lack of novelty.

Infringement

The owner of an industrial design can file a criminal complaint under article 222 of the Penal Code and request the imprisonment of the infringer. Alternatively, the owner may file an administrative complaint for infringement, and request the authority to order measures such as:

• the cessation of the infringing acts;
• compensation for damages;
• the withdrawal from the market of the products resulting from the infringement;
• the prohibition of the import or export of the products; or
• other measures set out in article 241 of Decision 486.

In addition, the owner may request the authority to order immediate precautionary measures established in article 246 of Decision 486 and request the imposition of a fine.

For further information on this topic please contact Oscar Mago at OMC Abogados & Consultores by telephone (+51 502 6467 or +51 635 0641) or email ([email protected]). The OMC Abogados & Consultores website can be accessed at omcabogados.com.pe.