According to a recent ranking published by the magazine specialized in IP Marcasur, Peru is among the first countries whose terms to obtain the registration of a trademark are the most optimal.
Unlike, for example, countries such as Bolivia or Brazil, where the registration of a trademark can take between 10 to 14 months in the first instace and 8 to 10 months in the second, on the other hand, in Peru the registration of a trademark takes approximately 3 months.
However, when a trademark application goes into opposition, the deadlines for registration vary and according to Peruvian national regulations, the procedure per instance takes 180 business days or between 6 or 8 months approximately.
In addition, when the second instance declared the nullity of the first instance resolution and ordered it to rule again after correction of the defect that declared the nullity, the terms established in the regulations of 180 working days were applied, with which in practice the term was doubled in the first instance, that is, if before it was 180 business days to resolve and then the nullity of its resolution was declared, 180 more business days were counted again, then the terms were disproportionately extended, affecting the parties .
In this sense, within the framework of a trademark defense process that Castro Law Office had been carrying out, wwhere the second instance, at our request, declares the nullity of the first resolution and orders that it be pronounced again and wants to apply the term of 180 business days, we filed a complaint appeal for processing defects, invoking that the principle of procedural speed and due process was violated, with which we were able to establish as a mandatory rule (mandatory compliance precedent) that in these cases, the term of 180 business days is not applicable and that the maximum term is 30 business days for it to issue its decision again.
In summary we have the following:
In cases of trademark registration procedures with conflicts or litigation
- Previous rule:
Each instance has 180 business days to resolve, considering that in Peru there are two instances in the trademark office, the term would be approximately 360 business days. However, if the resolution of the first instance was annulled by the second instance due to some defect, it was returned so that the first instance could make a decision and the latter recorded a new period of 180 business days, which added to the above, had 360 business days to resolve in first instance without counting the other 180 business days that the second instance has.
- Current rule:
Each instance has 180 business days to resolve, considering that in Peru there are two instances in the trademark office, the term would be approximately 360 business days. However, if the resolution of the first instance is annulled by the second instance due to some defect, it is returned so that the first instance can rule. In this case, the term that the first instance now has to rule again is 30 business days, which added to the previous term, it would take 210 business days, with which we have managed to reduce the term by 150 business days.
It is worth mentioning that this rule or binding precedent is applicable to all trademark litigation procedures that are carried out at the administrative headquarters (national trademark office) since in Peru it has primary jurisdiction to resolve trademark and Intellectual Property conflicts.
