Abstract: By Legislative Decree N° 1309 the Executive issued a series of modifications to Legislative Decree N° 1075, in particular, trade name regulation. Through the modification of article 84, means of proof are now being regulated in order to demostrate the first use of the trade name.
The protection of the trade name in Perú starts automatically by its mere use in commerce; this means that its registration is not compulsory; however, prove of first use and the scope of the economic activities related to the trade name are necessary in order to provide protection.
Legislative Decree N° 1075 and Andean Community Decision N° 486 regulated trade name; however, both provisions did not specified the specific terms to prove its first use. In that regard, by Legislative Decree N° 1309, trade name has been regulated when it comes to means of proof in order to demostrate the first use of it, as follows:
- Evidence in accordance to the economic activity of the trade name
- Evidence dated before the filing date of the trade name application
- Any type of evidence that shows the real and effective use of the trade name in the market
- Evidence should show the trade name as it is consigned in the trade name application
- The oldest evidence should be considered as the date of first use of the trade name
The mentioned criteria has been developed by jurisprudence and by the Precedent of Mandatory Compliance No. 387-1998/TPI-INDECOPI, dated april 17th 1998. However, now any citizen has legal certainty of how to prove the first use of a trade name since it is indicated in article 84 (modified).
Alejandro Castro Angulo
Lawyer – Managing Director