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Barreda Moller writes...

Registration of Industrial Designs in Peruvian Law

Design Laws in Peru are established by Decision 486 of the Andean Community. It is a Common Intellectual Property Regime for all Andean Community Countries.

1. What is protected?
The particular appearance of a product that results from any arrangement of lines or combination of colors, or any two-dimensional or three-dimensional outward shape, line, outline, form, texture, or material, without the intended use or purpose of the said product being thereby changed.

2. Who has the right to register an industrial design?
The right to register an industrial design belongs to the designer.
• If several persons make an industrial design jointly, they shall share the right to its registration.
• If several persons make the same industrial design, each independently of the others, registration shall be granted to the person or assignee with the first filing date or, where priority is claimed, date of application.
• This right may be assigned or transferred by succession.
• Registration right holders may be natural persons or legal entities.

3. Which industrial designs may be registered?
Only Industrial designs that are new will be protected.
• An industrial design will not be considered new if, before the filing date or validly claimed priority date, it has been made accessible to the public in any place or at any time, by description, use, or any other means.
• An industrial design will not be new by virtue of the mere fact that it embodies secondary differences in relation to earlier creations, or that it refers to a category of products different from that to which the said creations belong.

4. Which creations are not registrable?
The following industrial designs cannot be protected:

a) Industrial designs the commercial exploitation of which is considered necessary to prevent within the territory of Peru in order to protect morality or public order. However, commercial exploitation of an industrial design will not be considered contrary to morals and public order merely because the exploitation is prohibited or regulated by a legal or administrative provision;
b) Industrial designs the appearance of which was dictated essentially by technical or functional considerations and that fail to incorporate any arbitrary contribution by the designer; and,
c) Industrial designs that consist only of a form the exact reproduction of which proved necessary in order to permit the mechanical assembly or connection of the product incorporating the design with another product of which it is a part. This prohibition will not be applicable to products in which the design consists of another way to permit the assembly or the multiple connections of the product or of its connection within a modular system.

5. Which are the owner’s rights?
Registration of an industrial design will last for a term of ten years, counted from the filing of the application.
The protection accorded to an industrial design shall not apply to elements or characteristics of the design dictated essentially by technical or functional considerations or that fail to incorporate any arbitrary contribution by the designer.

6. What Registration Procedures Applicant must follow?
An application to register an industrial design has to be filed at the Peruvian Patent Office.

The Application must contain:
a) A petition;
b) A graphic or photographic representation of the industrial design. This representation, in the case of two-dimensional designs incorporated onto a flat material, may be replaced by a sample of the product incorporating the design;
c) Power of attorney;
d) Proof of payment of the prescribed fees;
e) Assignment Deed, if applicable.
The petition for the industrial design registration application is a form and includes the formal request for registration and information about the Applicant, the Designer and the Industrial Design

6.1. Date of receipt
The application must contain at least the following elements to be awarded an application filing date:
a) A statement that the applicant is filing for the registration of an industrial design;
b) Data identifying the applicant or person filing the application that will enable the Patent Office to communicate with that person;
c) A graphic or photographic representation of the industrial design. This representation, in the case of two-dimensional designs incorporated onto a flat material, may be replaced by a sample of the product incorporating the design; and,
d) Proof of payment of the prescribed fees.
Failure to comply with these requirements will result in the Patent Office rejecting the application for processing and not assigning a filing date to it.

6.2. Formalities
The Patent Office will examine the application within 15 days following the filing (sometimes it may take longer) to ascertain whether it meets the terms and conditions of form.
If the examination of terms and conditions reveals that the application does not fulfill the formalities requirements, the Patent Office will notify the applicant to complete those within a period of thirty working days following the date of notification. The said period may be extended once, upon request, for an equal length of time without loss of priority. If, on expiration of the specified period, the applicant has failed to comply with the required conditions, the application will be considered abandoned and will lose its order of priority.

6.3. Publication
If the application fulfills the stipulated requirements, the Patent Office will order its publication.
An application cannot be consulted by third parties until publication has been ordered at the conclusion of the stipulated period, except where written consent has been obtained from the applicant.

6.4. Opposition
Within a period of thirty working days following the date of publication, any person with a legitimate interest may, one time only, present valid reasons for contesting the registration of the industrial design. The Patent Office may grant such persons once, upon request, an additional period of thirty days in which to present valid reasons for their opposition.
If any objections have been lodged, the Patent Office will request the applicants to present their arguments or submit documents, as they see fit, within thirty working days following that notification. The Patent Office will, upon request, grant an additional period of thirty days in which to make a defense against the objections that have been raised.

6.5. Examination
Upon expiration of the opposition period or should no objections have been raised, the Patent Office will conduct an examination to ascertain whether the subject matter of the application complies with the registration requirements.
The Patent Office cannot make an examination ex officio of the novelty of the subject matter of the application unless a third party has filed opposition to the registration of said design. However, if the lack of novelty is glaringly obvious, the Patent Office will reject the application ex officio.

6.6. Granting
The Patent Office will grant the registration of the industrial design and issue the corresponding certificate to the rights holder upon fulfillment of the stipulated requirements.

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