ja_mageia

As part of the process of the enforcement of the Trade Promotion Agreement entered into between Peru and the United States of America, Legislative Decree 1092 of June 27th, 2008 and its Regulation (Supreme Decree No. 003-2009-EF) entered into force on February 1, 2009 approving Border Measures for the protection of copyrights or related rights and trademark rights.
It defines pirated and counterfeited goods and makes provision for border control measures to be taken by the Peruvian Customs Administration. Its protective scope covers exported and imported goods and goods in transit, suspected of infringing intellectual property rights by being counterfeited or pirated, and does not cover small quantities of goods, inherently non-commercial goods and the personal belongings of travelers.

A pirate good is defined as any goods that are non-authorized copies of a work protected in the manufacturing country, when the production of said copy constitutes an infringement of a copyright or a related right under the law of the importer country.
A counterfeited good is defined as any goods, including packaging, bearing without authorization a trademark that is identical to a trademark already registered in respect of such goods, or having a trademark which essential aspects cannot be distinguished from the registered trademark, thereby infringing the rights of the owner of the trademark in question under the law of the country of importation.

The border control measures can be initiated by either a natural or a legal person, or the Customs Administration. Peruvian Customs can perform spontaneous inspections of goods if they have reasonable grounds that they are counterfeited or pirated; and according to this Legislative Decree they cannot be held liable for any damage to inspected goods.
At the time of requesting protection at borders, the customs administration will be able to request the petitioner to deposit a bond to cover possible losses or damages caused to the importer, exporter and/or consignee of the goods, resulting from any suspension of the release of goods which no infringement of intellectual property rights were found. This bond must be a sum equivalent to 20% of FOB value of goods. In the case of perishable goods, the guarantee shall be constituted by 100% of FOB value of it. Merchandise under US$ 200 FOB value will not be affected.

The precautionary measures that can be granted are immobilization, seizure or withholding of the merchandise.
Sworn declarations will be accepted only from public entities as well as foreign entities and institutions of international cooperation- ENIEX, non-governmental organizations for national development, non-profit private institutions funded by donations for educational purposes, duly registered before the APCI (Peruvian Agency of International Cooperation).

In order to verify the ownership of the relevant goods and to implement the suspension of the release of the same, trademark owners or their legal representatives or agents must be registered in an official record implemented by the Customs Administration. The Customs Board shall request to the INDECOPI (Peruvian Trademark Office) its previous opinion for the purpose of registering the right holders.

INDECOPI shall provide to the Customs Administration access to the Official records relating to trademarks, copyrights and related rights.