New decree on border control measures published
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As part of the implementation of the Trade Promotion Agreement between Peru and the United States, Legislative Decree 1092/2008, which introduces border control measures for the protection of copyrights, trademark rights and related rights, has been published.
Under the decree, a 'pirated good':
- is the unauthorized copy of a work which is protected in the country in which it was manufactured; and
- infringes copyright under the laws of the country in which it was imported.
A 'counterfeit good' is defined as a product (including its packaging) bearing a trademark:
- which is identical to a trademark registered for similar goods; or
- whose dominant characteristics are identical to those of a registered trademark.
The main features of the new law are as follows:
- The decree applies to goods to be exported, imported goods and goods in transit which are suspected of being pirated or counterfeit. It does not apply to:
- very small quantities;
- goods that are not commercial in nature; and
- the personal belongings of travellers.
- Border control measures may be carried out at the request of a third party or on the initiative of the Peru Customs Administration. The administration may carry out border control measures sua sponte where it has reasonable grounds to suspect that the goods are counterfeit or pirated. The administration is exempt from liability with regard to all interventions.
- The administration may request that an applicant provide a bond, promissory oath or security in order to compensate potential damages suffered by the importer, exporter and/or consignee of the goods. The bond will be performed immediately if the competent authority determines that the goods did not infringe any rights.
The new decree, which was published on June 28 2008, should be implemented within six months of the publication date. However, it will come into force when the Peru-US Trade Promotion Agreement becomes effective, which is expected to be by January 1 2009.
The ability of the Customs Administration to take actions on its own initiative will become effective only one year after the agreement has come into effect.
José Barreda, Barreda Moller, Lima
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