New criteria for admissibility of motions for reconsideration established

Peru

The IP Chamber of the Administrative Court of INDECOPI (the National Institute for the Defence of Competition and Intellectual Property) has issued a final decision (Decision 1204-2010/TPI-INDECOPI, May 31 2010) in Case 313791-2007, which involved an application by Peruvian supermarket chain Supermercados Peruanos SA for the registration of the mark AJI-NO-BELL’S in Class 30 of the Nice Classification.

In Case 313791-2007, opponent Ajinomoto Co Inc filed a motion for reconsideration, attaching new evidence to demonstrate the notoriety of its trademark AJI-NO-MOTO. Ajinomoto also included legal arguments relating to the similarity of the marks at issue, thereby questioning the decision issued by the Trademark Office (now the Trademark Commission).

The INDECOPI court held that Ajinomoto, through its motion for reconsideration, actually intended to obtain a new decision. Accordingly, the Trademark Office should have assessed the entire motion for reconsideration, and not only parts thereof, since the evaluation of the motion as whole would have revealed its real nature.

Indeed, the court found that the Trademark Office had erred in qualifying Ajinomoto's challenge as a motion for reconsideration, since it included not only new evidence, but also legal arguments relating to the similarity of the marks. Consequently, the motion should have been characterised as an appeal, and the Trademark Office's decision was declared null and void.

The decision thus established new criteria for the admissibility of motions for reconsideration, which are already being applied in proceedings where motions for reconsideration are being heard.

José Barreda, Barreda Moller, Lima

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