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Can registration of a trademark be challenged?

26. November 2018

By Maria Sol Porro

Last March the Constitutional Court of Peru, faced with a conflict related to the rejection of the registration of a trademark, established that the registration has no direct constitutional support based on the right to intellectual creation or the right to the protection of intellectual creation.

The above-mentioned dispute was originated because of the registration of the “G-Kristal” brand by import and export company, Goldsun before the Peruvian Trademark Office. Once the registration of the mark was accepted by the National Institute for the Defense of Competition and the Protection of Intellectual Property (INDECOPI), the company Backus and Johnston S.A. initiated a process of challenging the administrative resolution in an attempt to revoke the above mentioned registration based on its brand “Cristal.” In response to this request, the Supreme Court decided to revoke the registration by the INDECOPI, rejecting the registration of the “G-Kristal” mark, in finding that there are notable similarities between the “Cristal” and “G-Kristal” brands that might confuse the consumers.

Faced with this decision, Goldsun filed a constitutional judiciary protection order to reverse this decision. The First Constitutional body, in this case the Review Chamber, upheld the decision of the Supreme Court to hold that the contested jurisdictional decision was properly reasoned and had been issued in a regular proceeding.

However, the issue took an unexpected turn when the Constitutional Court (TC) found the request for judiciary protection order filed by the Goldsun Company to be well founded. Once the judiciary protection order was admitted, the matter was reconsidered.

On one hand, the TC established that the appellant’s claim (the protection of its right to the registration of the G-Kristal trademark) had no direct constitutional basis based on the right to intellectual creation (which, protects the broad possibility of creation in literary, scientific, technological or artistic areas without obstacles, censors or restrictions on the part of the state or individuals) or on the right to the protection of intellectual creation (guarantees the existence of a regime of protection of moral and material interests that derive from the said creations). This was the reason why it rejected this end of the demand. On the other hand, the TC found that the judgment of the Supreme Court had not been duly substantiated, since it did not sufficiently explain the reasons that led to the conclusion that the decision of the INDECOPI should be revoked.

Consequently, the Constitutional Court declared that the claim was properly supported based on the violation of the right to the due justification of judicial decisions and, consequently, it nullified the decision of the Supreme Court. Finally, it provided that the Supreme Court must reiterate its’ the decision, taking into accounts the grounds contained in this judgment.





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