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Barreda Moller writes...

Ex Officio Border Measures and New Provisions Concerning Ex Part Border Measures Proceedings

The Peruvian Government has very recently placed in effect ex-officio border measures, in force since 01 February 2010.  The new provisions have been approved by Resolution No. 029-2010/SUNAT/A dated 28 January 2010. 

1.     The more relevant aspects of the Custom’s resolution are: 

  • Customs can select merchandise for inspection based on information available at the Voluntary Registry, information provided by the trademark/copyright owner or by the Trademark Office.   Also, Customs may select presumably counterfeit, pirate or confusingly similar merchandise, when finding reasonable elements.  
  • “Pirate merchandise” is defined as any copy made without the consent of the copyright owner or of a duly authorized person in the country of production and which is made directly or indirectly from an article when the making of such copy would have constituted infringement of copyright or of related rights under the laws of the country of import. 
  • “Counterfeit merchandise” is defined as any merchandise, including its packaging, which without authorization bears a trademark identical to one validly registered for such merchandise, or which cannot be distinguished from a registered trademark in its essential aspects and that in so doing, violates trademark rights granted under the legislation in the country of import.
  • “Confusingly similar merchandise” is defined as any merchandise which showing one or more characteristics of a validly registered trademark, is likely to produce confusion or association, and the undue advantage of the prestige of the registered trademark, inducing the consumer to error regarding the true origin of the products, affecting the distinctive force of the registered trademark and its commercial or advertising value.

2.     Customs may order the suspension of the release of the merchandise and notifies the rights’ owner, who is granted a term of three (3) working days to demonstrate that an infringement action has been filed before the competent Authority.  Custom also notifies the Trademark Office.

3.     Upon filing of the infringement action. Customs shall evaluate the documents filed before the Trademark Office, and to the extent applicable shall extend the suspension for ten (10) additional working days.

4.     The suspension is ended in the following cases:

  • When the term of three (3) working days would have lapsed and the rights’ owner did not file the infringement action.
  • When the ten (10) working days would have lapsed and the competent Authority would have not issued precautionary measures to seize the merchandise.
  • When the competent Authority would determine that the merchandise is not pirate, counterfeit or confusingly similar. 

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