Supreme Decree on border measures published

Supreme Decree 003-2009-EF, which approves border control measures for the protection of copyright and trademarks, was published on January 13 2009.

 

The entry into force of the Supreme Decree is subject to the coming into force of Legislative Decree 1092/2008, which, in turn, will be effective when the Trade Promotion Agreement between Peru and the United States comes into force - with the exception of Title IV of the Supreme Decree and Title III of the Legislative Decree (which both deal with ex officio proceedings), which will enter into effect one year after the coming into force of the agreement.

 

The Supreme Decree is intended to regulate border control measures relating to the protection of copyrights and related rights, as well as trademarks. The decree applies to 'pirate' and 'counterfeit' goods, as defined under the Legislative Decree. Under the Legislative Decree, a 'pirate good':

A 'counterfeit good' is defined as any 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, and thus violates the rights of the trademark owner in the country of importation.

 

The Legislative Decree and the Supreme Decree do not apply to:

The Supreme Decree defines a 'small consignment' as goods which are not commercial in nature - or, if the goods are commercial in nature, are not significant to the Peruvian economy. Goods whose free-on-board (FOB) value does not exceed $200 are considered not to be significant to the economy.

 

The Supreme Decree also deals with the long-awaited implementation of a registry of copyright and trademark rights. Under the decree, Customs will create and maintain a registry of owners of trademarks and copyright and related rights. In order to request the suspension of a clearance procedure, IP rights owners will have to be registered with Customs. Registration will be valid for one year and must be renewed during the first 30 days of each calendar year. Failure to renew will result in the expiration of the registration.

 

Under the decree, IP rights owners are now entitled to apply to Customs for the suspension of clearance of suspected pirate or counterfeit goods. The time limit within which IP rights owners must apply for the suspension of clearance depends on the specific regime governing the goods:

• Imports for consumption - from the date on which the customs declaration is numbered to the day before clearance is granted.
• Re-importation in the same state - from the date on which the customs declaration is numbered to the day before clearance is granted.
• Temporary admission for re-exportation in the same state - from the date on which the customs declaration is numbered to the day before clearance is granted.
• Definite exportation - from the date on which the provisional customs declaration is numbered to the date on which loading is authorized.
• Temporary exportation for re-importation in the same state - from the date on which the customs declaration is numbered to the day before the goods are authorized to leave the country.
• Transit towards third countries - from the date on which the customs declaration is numbered to the day before the goods are authorized to leave the country.
• Internal transit - from the date on which the customs declaration is numbered to the day before the regime ends.

Rights owners must provide a guarantee, bond or promissory oath in order to compensate for potential damages suffered by the importer, exporter or consignee of the goods as a consequence of the suspension. 

The bond or equivalent guarantee must be executed by public deed or by a financial institution incorporated in Peru, and must be:

The bond, guarantee or promissory oath must have a duration of no less than 30 calendar days and must remain effective during the suspension of the clearance and the administrative or judicial proceedings. The bond, guarantee or promissory oath must be equivalent to 20% of the FOB value of the goods at issue. If the goods are perishable, the bond, guarantee or promissory oath must represent 100% of the FOB value of the goods.

If the competent authority determines that the goods are not pirated or counterfeit, or if the claimant in the ex parte proceedings has failed to file an infringement action or equivalent claim within 10 working days of the notification of the suspension, Customs shall hand the bond or guarantee to the beneficiary.

 

Customs will accept a promissory oath (instead of a bond or guarantee) only from:

A bond will be executed immediately once the competent authority has determined that the goods at issue do not infringe any IP rights.

 

According to the decree, Customs will lift the suspension where:

In ex officio proceedings, Customs will notify the rights holder that clearance has been suspended. The holder must then provide Customs with a copy of the infringement action within a period of three working days. If the rights owner fails to do so, the suspension will be lifted.

 

Customs will suspend clearance of suspected infringing goods for a maximum of 10 working days. A 10-day extension will be automatically available if the rights holder can prove that it has filed an infringement action within the initial 10-day period.