Novelty is an essential requirement for registering an industrial design in Peru or any Andean Community member state.
Andean legislation provides that a design qualifies as new if, prior to the filing date or claimed priority date, it has not been made accessible to the public anywhere or at any time through description, use, commercialization, or any other means.
Relevant Public and Disclosure Sources
The reference public comprises:
- The average consumer who typically purchases products incorporating the design.
- Trade sectors involved in production, importation, distribution, or commercialization of such products.
Disclosures affecting novelty may arise from:
- Commercial use or distribution of the product.
- General or specialized publications.
- Official publications.
- Internet disclosures (websites, e-commerce platforms, online databases, social media, apps, emails, file sharing, etc.).
Any such public disclosure destroys novelty, though a one-year grace period allows the designer or successor to disclose without prejudice.
Substantive Examination and Novelty
Andean rules specify no ex officio novelty examination unless an opposition is filed based on prior rights or lack of novelty.
Thus, non-novel designs may be registered absent opposition or manifest lack of novelty, but such grants remain vulnerable to absolute nullity actions, initiated ex officio or by third parties.