RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/117/Add.16
9 March 1999
(99-0935)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  Spanish
REVIEW UNDER ARTICLE 24.2 OF THE APPLICATION OF THE PROVISIONS
OF THE SECTION OF THE TRIPS AGREEMENT
ON GEOGRAPHICAL INDICATIONS
Responses to the Checklist of Questions1,2
Addendum
PERU
The present document represents the responses to the Checklist which the Secretariat has
received from Peru, by means of a communication from its Permanent Mission dated
18 January 1999.
_______________
II. RESPONSES TO THE QUESTIONS IN DOCUMENT IP/C/13
A. GENERAL
1. Is protection for geographical indications provided through unfair competition law, e.g.
passing off, false designation of origin;  through a formal procedure from
notification/registration before full protection is available; or through both?  Does therecognition of a geographical indication require registration?
Peru's unfair competition law (Decree Law No. 26122) does protect geographical indications
because it considers that the performance of acts or the use of expressions which may mislead as to
the geographical origin of a product or service is unfair.  In particular, it deems unfair the use of false"indications of sources" and false "appellations of origin", as well as the unauthorized use of
appellations of origin, even where accompanied by such expressions as "type", "model", "system",
"kind", "variety" or the like.
2. Is there one single regime of protection of geographical indications for all products?  If
not, identify the different regimes.
The legal regime in Peru, set out in domestic law (Legislative Decree No. 823, the Industrial
Property Act) and in the Supranational Andean  law (Decision 344 of the Commission of the
                                                     
1 Documents IP/C/13 and IP/C/13/Add.1.
2 The general regime of protection under Peruvian law relates to "appellations of origin".  There is no
specific regime for "geographical indications".  However, as a developing country Peru has been using the four-year transition period to bring its legislation into conformity, as authorized under Article 65.2 of the TRIPSAgreement.  In this respect, the responses to the questionnaire on the application of the TRIPS section ongeographical indications refers to appellations of origin.IP/C/W/117/Add.16
Page 2
Cartagena Agreement) is a single regime of protection for appellations of origin applicable to all
products, provided they meet the relevant recognition requirements.
Again, these enactments contain provisions in the trademarks regime involving absolute
prohibitions on registering distinguishing signs where they reproduce or imitate a protectedappellation of origin, consist of a national or foreign geographical indication likely to lead to
confusion regarding the products or services to which they apply,  or their use may mislead the public
with regard to the origin, source, quality or characteristics of goods for which trademarks are used.
3. Do(es) the regime(s) of protection of geographical indications also extend to services?
The Peruvian regulations contain a specific regime not on "geographical indications" but on
"appellations of origin" and, in this respect, in keeping with the definition contained in Article 219 of
Legislative Decree No. 823 and Article 129 of Decision 344, it applies solely to goods and not to
services.
4. What provisions of law or regulations are directed to the recognition of geographical
indications required by Article 22.2 and Article 23.1 of the TRIPS Agreement?  Citations to
laws should be provided and, if the texts of the laws have not been notified to the WTO, copies
should be supplied pursuant to Article 63.2.
The following legal provisions apply in Peru to recognition and protection of appellations of
origin and suppression of the improper use of geographical indications:
• Legislative Decree No. 823, the Industrial Property Act.
• Decree Law No. 26122, the Unfair Competition Act.
• Decision 344 of the Commission of the Cartagena Agreement.
5. If the required recognition of geographical indications is not provided through statutes
or regulations, please explain, in detail, th e mechanism or mechanisms through which the
protection required is provided.
The concept set out in Article 22.1 of the TRIPS Agreement does not draw a distinction
between an appellation of origin and an indication of source.  Indeed, it employs an expression that
encompasses various levels of protection, depending basically on the nature of the good distinguished
by the indication and its use on the market at the time of the entry into force of the Agreement.
In this respect, the regulations in Peru relate to the appellations of origin regime, which is
based on prior official recognition in accordance with the relevant provisions.
6. Please provide a few examples of domestic geographical indications protected in
accordance with the means discussed above and in dicate the means by which such protection is
provided.
For example, Peru recognizes "Pisco" as a domestic appellation of origin, one that has been
used since the 18
th century and distinguishes and protects the grape brandy produced for many years
on the coast of the Departments of Lima, Ica Are quipa, Moquegua and the valleys of Locumba, Sama
and Caplina in the Department of Tacna.
Pisco is geographically a place on Peru's southern coast which has existed since the beginning
of the 17th century with that name.  It is a town, a port and province and they acquired a greatIP/C/W/117/Add.16
Page 3
reputation for producing a grape brandy which took on precisely the name of the region in which it
was produced and the port through which it was exported.  The qualities typical of this brandy are the
result of an exclusive Peruvian production process developed in that region, as well as the use of a
variety produced by a genetic mutation of black grapes, caused by the plant's adaptation to the soil
and climate of the Pisco region, which extend into the valley where similar conditions prevail.
The legal instruments protecting appellations of origin in Peru are the following:
• Legislative Decree No. 823, the Industrial Property Act.
• Decree Law No. 26122, the Unfair Competition Act.
• Decision 344 of the Commission of the Cartagena Agreement.
It should be noted that the Peruvian Government has been engaging in activities to recognize
a number of possible appellations of origin from the various geographical areas of Peru.
7. Is the higher level of protection required for wines and spirits under Article 23.2 of the
TRIPS Agreement provided for any other product?  If so, please specify such products and the
law under which they are protected.
Article 23.2 of the TRIPS Agreement establishes a higher level of protection for wines and
spirits in that any registration of a trademark which contains or consists of a geographical
identification identifying wines or spirits shall be denied for wines or spirits not having that origin.
In this respect, Peruvian industrial pr operty law (Legislative Decree No. 823 and
Decision 344 of the Commission of the Board of the Cartagena Agreement) establishes that signs
cannot be registered as trademarks if they are capable of misleading business circles or the public as
to the origin of the products or services involved.  It also states that signs cannot be registered as
trademarks if they reproduce or imitate a protected appellation of origin or consist of a domestic orforeign geographical indication capable of misleading the public as to the origin, source, qualities or
characteristics of the goods for which the trademarks are used.  This applies regardless of the products
to which a geographical indication or geographical appellation refers.
B. 
DEFINITION AND CRITERIA FOR RECOGNITION
8. How are geographical indications defined?
Peru's Industrial Property Act (Legislative Decree No. 823) defines an "appellation of origin"
as one which uses the name of a geographical region or place in order to designate a product
originating therein and the quality and characteristics of which are due exclusively or essentially to
the place's natural and human factors.
Again, the Common Andean Regime contained in Decision 344 establishes that "appellation
of origin" shall be taken to mean a geographical indication consisting of the name of a specific
country, region or place or consisting of a name which, without being that of a specific country,
region or place, relates to a specific geographical area, used to designate a product originating thereinand with qualities or characteristics of which are due exclusively and essentially to the geographical
environment in which it is produced, including natural and human factors.
9. Would such a definition comprise geographi cal indications identifying products of a
certain quality or reputation which are indirectly linked to a specific region?IP/C/W/117/Add.16
Page 4
Under the definitions contained in the above-mentioned legal provisions, the relevant
geographical connection and qualitative connection (natural and human factors) would be essential for
the purpose of recognition of an appellation of origin.
10. In determining whether recognition should be given to a geographical indication, what
criteria are considered?
For the purpose of recognizing an appellation of origin, it is determined whether the
appellation is in keeping with the definitions in the above-mentioned legal provisions, with the
emphasis placed on the natural and human factors of the geographical area of production, extraction
or manufacture of the product to be distinguished by the appellation, as well as the particular
characteristics of the products in question.
11. Is there any human creativity involved in the making of specific products under
protection by the system of geographical indicati ons?  If so, how much?  And do these products
involve any human factors?
In view of the nature of an appellation of origin, which owes its existence to the place's
natural and human factors (which should be unique), the human participation in the making of the
product protected by an appellation of origin is often conspicuous, since protection of an appellation
is recognized precisely because of such human factors, combined with the natural ones.
12. Are there any other intellectual property ri ghts involved, such as patents for example?
Under the Peruvian appellations of origin regime, the requirement is that the product
designated by the appellation should originate in a particular geographical region or area, and that the
quality or characteristics of the product are due exclusively or essentially to the place's natural andhuman factors;  if the possibility of other intellectual property rights such as patents or trademarks
were involved, such involvement would not be essential.
13. What authority, if any, may define the geographical region or area for which rights are
claimed and on what basis is such definition made?
The competent authority for declaring the protection of an appellation of origin in Peru, and
hence for determining the geographical area covered by the rights, is the Distinguishing Signs Office
of National Competition and Intellectua l Property Protection Institute (INDECOPI).
14. Does your legislation contain criteria for homonymous geographical indications for
wines?
Peruvian legislation does not contain criteria for homonymous geographical indications or
appellations of origin.
15. Does your national legislation provide for recognition and protection of geographical
indications or appellations of origin of foreign countries?
Yes.  Legislative Decree No. 823, Peru's Industrial Property Act, establishes that the State
may, under bilateral or multilateral agreements, foster recognition abroad of Peruvian appellations of
origin and grant, as a matter of reciprocity, protection to foreign appellations of origin by includingthem in a special section of the Register of Appellations of Origin.
Again, under Decision 344 the competent national authority may declare protection of
appellations of origin of member countries of the Andean Community.  In the case of applicationsIP/C/W/117/Add.16
Page 5
from third countries, protection may be provided, whenever it is allowed under any agreement to
which the country is a party or where the third party grants reciprocal treatment.
16. Is there any specific prohibition in the legi slation/regulation/rules/procedures covering
geographical indications not protected in the countr y of origin?  If so, please specify the relevant
statutory provision.
To supplement the reply to question 15 above in regard to appellations of origin not protected
in the country of origin, Article 142 of Decisi on 344 of the Commission of the Cartagena Agreement
stipulates that, in the case of recognition of appellations of origin of countries outside the Andean
Community, appellations of origin must have been declared as such in their countries of origin.
Accordingly, under the terms of Decision 344, in the case of a foreign appellation of origin not
recognized or protected in the country of origin, no application for protection can be made in any
country of the Andean Community.
C. PROCEDURE FOR RECOGNITION
17. With respect to any formal system for recognition of geographical indications, must the
applicant be a governmental organization or can a private entity own the rights to a
geographical indication?
In Peru, protection of an appellation of origin can be declared ex officio or at the request of
anyone who has a legitimate interest therein.  Natural and legal persons are deemed to hold a
legitimate interest if they are directly engaged in the extraction, production or making of the products
that are to be protected by the appellation of origin;  State, Department, provincial or municipal
authorities will also be considered interested partie s in the case of appellations of origin from their
respective areas.
18. What are the competent authorities where the protection of a geographical indication
can be obtained?
In Peru the competent authority for applications  to protect an appellation of origin is the
Distinguishing Signs Office of the National Competition and Intellectual Property Protection Office
(INDECOPI).
19. Do the procedures which lead to the recognition of a geographical indication take place
ex officio or must they be based on the initiative of an entity or person?
In Peru protection of an appellation of origin may be declared ex officio.
20. What, if any, fees are involved in the application and maintenance of rights in a
geographical indication?
The fees to apply for a declaration of protection of an appellation of origin are administrative
charges.
21./22. If criteria must be set out in an application for recognition of a geographical indication,
are those criteria purely geographic in nature?  Wh at other criteria, if any, must be set out in an
application for recognition of a geographical indication?
The law requires that, for the purpose of applying for recognition of an appellation of origin,
not only geographical criteria (area of production, ex traction or manufacture) must be given but also a
detailed description of the product, together with references regarding the characteristics and human
factors influencing the definition.IP/C/W/117/Add.16
Page 6
23. What information must be supplied in an application for rights in a geographical
indication?
An application for protection of an appellation of origin must include the following
information:
• Name, domicile, place of residence and nationality of the applicant.
• The legal interest on which the request for protection is based.
• The appellation of origin applied for.
• The geographical area of production, extraction or manufacture.
• A detailed description of the product or products to be distinguished by the
appellation applied for, together with its or their characteristics.
• Any other information required by the competent Office.
24. Must the goods or services with respect to which a geographical indication is claimed be
set out?
Yes.  It is compulsory to describe in detail the products for which the application for an
appellation of origin is being made.
25. What mechanisms are provided to oppose th e recognition of a geographical indication?
How is an investigation conducted after such a complaint?
Once an application for protection of an appellation of origin is admitted and the official
requirements have been met, it is published in the Official Gazette ( Diario Oficial El Peruano ),
following the procedure for the registration of trademarks.  Hence, anyone who is affected has
30 working days following publication to submit any comments and, where appropriate, the applicanthas 30 further working days to make any corresponding rebuttals.  The competent authority may
require further technical reports, specialist research or certificates on the characteristics and quality of
the products in order to resolve any claims or opposition to recognition of an appellation of origin.
26. Who can oppose the recognition of a geographical indication?
The recognition of an appellation of origin may be opposed by anyone who demonstrates a
legitimate interest and he may invoke the prohibitions contained in the law.  Accordingly, no
appellation of origin may be declared as such if it does not comply with the legal definition, if it is
contrary to good morals or to public order, if it is misleading as to the source or characteristics of theproduct, or if it is a common or generic indication.
27. If your national legislation provides for recognition and protection of geographical
indications or appellations of origin of foreign countries, what is the procedure that has to be
followed in order to obtain such recognition and consequent protection?
See items 15 and 16.IP/C/W/117/Add.16
Page 7
D. MAINTENANCE
28. How long does recognition for a geographical indication continue?
The period of validity of a declaration of protection of an appellation of origin is determined
by whether the conditions that led to the appellation continue to exist, in the opinion of the competent
Office, which may declare the period terminated if the conditions have not been maintained.
However, interested parties may apply for it again if  they consider that the conditions for protection
have been restored, without prejudice to administrative appeals provided for in law.
29. If recognition of a geographical indication must be renewed or reaffirmed, what
information must be provided in order to effect such a renewal or reaffirmation?  Specify anyfees involved in renewal or reaffirmation.
In order for the declaration of protection to remain effective, it is enough to demonstrate that
the conditions which led to recognition continue to exist.
30./31. Must a geographical indication be used in order to maintain rights?  If so, how is such
use determined?  Is there a specified limit for no n-use before rights in a geographical indication
cease and, if so, what is that limit?
Our legislation does not contain any provision whatsoever on the use requirement in order to
maintain rights in an appellation of origin.
32. Who monitors the use of geographical indicati ons to determine if the criteria identified
in the application continue to be met?
INDECOPI's Distinguishing Signs Office determines that the conditions which led to
recognition of an appellation of origin still exist and ensures that it is properly used.
33. If a government entity is responsible for monitoring the use of geographical indications,
what are its procedures for doing so?
Unauthorized use of an appellation of origin will be deemed a punishable offence.  Moreover,
the competent Office is entitled to cancel, ex of ficio or upon request, the authorization to use an
appellation of origin if the appellation is not being used under the terms on which the authorization
was issued.
34. Are there means by which interested parties may request termination of a geographical
indication based on non-use or failure to maintain the criteria identified in the application?
Describe the procedure.
Since the period of validity of a declaration of recognition of an appellation of origin is
subject to the continued existence of the relevant conditions, any interested party may apply to the
competent Office for it to declare the period of valid ity terminated;  it is sufficient to submit a request
with the supporting evidence.
35. Do the procedures which lead to forfeiture of a geographical indication take place
ex officio or must they be based on the initiative of an entity or person?
It is possible for the competent authority to declare, ex officio , termination of the protection
of an appellation of origin, if it considers that the conditions which led to recognition have not been
maintained.  Similarly, the competent authority may, ex officio or upon request, declare forfeiture ofIP/C/W/117/Add.16
Page 8
the authorization to use a protected appellation of origin, after hearing the parties, if it was issued
contrary to the law.
E. SCOPE OF RIGHTS AND USE
36. May anyone who meets the criteria submitted to obtain recognition of a geographical
indication use that geographical indication aft er recognition is given or must additional criteria
or procedures be followed by that party before use is permitted?
Under Legislative Decree No. 823, the Industrial Property Act, the State is the holder of
Peruvian appellations of origin and grants authorization to use them, for which reason a person who
applies for and secures recognition of protection of an appellation of origin must also requestauthorization to use it, a procedure that is different from the declaration of protection procedure.
37. Who makes the determination regarding use of a geographical indication by particular
parties, the entity responsible for the recognit ion or the entity that obtained the recognition?
Anyone who meets the requirements set out in the declaration of protection of an appellation
of origin can ask to be granted authorization to us e it, and the entity responsible for recognition and
protection (INDECOPI's Distinguishing Signs Office) verifies whether the requirements pertaining to
the geographical area and the quality or characteristics of the product are met, and where appropriate
grants authorization.
38. Are there fees involved in  receiving authorization to use a particular geographical
indication and, if so, what are those fees and how are they established?
The only fees involved are the charge for processing the application for authorization to use
the appellation.  Accordingly, once the authorization is obtained, there is no obligation to pay any
additional sum.
39. If there is a dispute regarding use of a geographical indication by a particular party,
what procedures are followed to resolve it?
Any unauthorized use of a protected appellation of origin is resolved in an infringement
procedure.  There may also be disputes that an appellation of origin is being used other than under the
terms on which the authorization was granted, in which case the method used is the procedure to
cancel the authorization for use.  The law also cove rs the possibility of nullifying the authorization,
ex officio or upon request, in cases in which the authorization has been granted contrary to the law.
40. Must individual authorized users of a geog raphical indication use that geographical
indication continually to retain their right to us e it and, if so, how is their use determined and
how long will this use be permitted?
Current domestic regulations do not establish any cancellation or other kind of extinction of
an authorization to use an appellation of origin simply because it has not been used.  Accordingly, use
of the appellation of origin does not figure as a co mpulsory requirement to maintain the right to utilize
it.
41. If there is a dispute over continuity of use by a particular party, how is it resolved?
Authorization to use an appellation of origin is granted for ten years, which is renewable.  If,
before expiry of that period, there is any disagreement regarding the viability of continued use,
interested parties may use the method of cancellation or nullity (as detailed in reply 39) to terminate
authorization.IP/C/W/117/Add.16
Page 9
42. Does the regime for protection of geographical indications allow geographical
indications to be licensed and, if so, what conditions are imposed on such licenses?  If such
conditions are not met, what is the ef fect on the geographical indication?
See items 36 and 37.
43. How is "grandfathered" use of the geographical indication under article 24.4 of the
TRIPS Agreement applied in your country?
The only direct regulation of grandfathered use of an appellation of origin is contained in
Article 238 of Legislative Decree No. 823, the Industrial Property Act, which establishes that personsusing an appellation of origin before the date on which it was declared shall have a period of one year
to apply for authorization to use it.
F. 
RELATIONSHIP TO TRADEMARKS
44./45./46. What steps are taken to ensure th at, in recognizing a geographical indication,
the obligations of Article 16.1 of the TRIPS Agreement are not nullified and impaired?  What
steps are taken to ensure that, in recognizin g a geographical indication, the obligations of
Article 16.2 and 16.3 of the TRIPS Agreement are not nullified and impaired?  What
procedures are foreseen in the case of a conflict of a geographical indication with a trademark?
Peruvian law sets out provisions whereby trademarks are cancelled in the event of a conflict
with geographical indications and appellations of origin.  The law also specifies a procedure in the
event of an infringement of an exclusive right.  In  such cases, the existence of a better or prior right
must be demonstrated.
G. ENFORCEMENT
47. How are rights in the geographical indicati on enforced?  Are provisions available under
unfair competition law?  Trademark law?  Othe r laws?  Provide citations to the laws and, if
they have not been notified under Article 63.2 of the TRIPS Agreement, please provide copies.
Peruvian legislation provides for specific procedures to defend and protect an appellation of
origin.  One method is the infringement procedure for unauthorized use of a protected appellation of
origin; another is the procedure to cancel and nullify the authorization to use an appellation of origin,
and even the rules on unfair competition include some cases which are penalized, such as false
indications of source and false appellations of origin.
48. Who has the right to enforce a geographical indication?
The State is the right-holder of Peruvian appellations of origin.  Protection may also be
invoked by legitimized third parties who consider that they have been affected by acts orcircumstances which involve a contravention of their right.
49. What judicial or administrative bodies have jurisdiction over enforcement actions
related to geographical indications?  Are there fe es involved and, if so, what are those fees?
The administrative body with jurisdiction over action to enforce the rules on appellations of
origin is the INDECOPI Distinguishing Signs Office.  The only fees required are the charges for
processing the procedures involved.IP/C/W/117/Add.16
Page 10
50. Must the public be notified of the existence of a geographical indication and, if so, how
and how often?
Peruvian law establishes that a declaration of protection of an appellation of origin shall be
published, once only, in the Official Gazette ( Diario Oficial El Peruano ) and in any other national
newspaper.
51. Is unauthorized use of a geographical indication subject to criminal action and, if so,
describe the procedures.  If the law has not been  notified pursuant to Article 63.2 of the TRIPS
Agreement, please provide a copy.
The criminal law does not contain any specific rule whereby unauthorized use of an
appellation of origin is deemed an offence, and therefore it would not be subject to criminal action.
H. INTERNATIONAL AGREEMENTS
52./53. Is your government party to an internatio nal, including bilateral or plurilateral,
agreement for the notification and/or registration of geographical indications?  If so, please
name the international agreement and explain the relationship between it and your national
legislation.  What other international agreement s, if any, have been entered into?  What do
those agreements provide?
Peru is party, aside from the Cartagena Agreement, which establishes a common regime for
the protection of appellations of origin (Decisi on 344), to the Paris Convention for the Protection of
Industrial Property, which contains rules on false indications of source, and to the Interamerican
General Convention on Trademark and Trade Prot ection, concluded in Washington D.C. in 1929,
which includes rules on unfair competition and in particular on false indications of geographicalorigin and source.
II. RESPONSES TO THE QUESTIONS IN DOCUMENT IP/C/13/ADD.1
A. 
GENERAL QUESTIONS (SECTION A OF DOCUMENT IP/C/13)
1. Does your country's property law and/or related law prevent the use of geographical
indications identifying wines or spirits against products not originating in the place indicated bythe geographical indication, even where the true  origin of the goods is indicated or the
geographical indication is used in translation or accompanied by expressions such as "kind",
"type", "style", "imitation" or the like.
Legislative Decree No. 823, the Industrial Property Act, establishes that the use of an
appellation of origin by unauthorized persons is deemed a punishable offence, including cases in
which the appellations are accompanied by such indications as kind, type, imitation and the like,
which mislead the consumer.  Agai n, Decree Law No. 26122, the Unfair Competition Act, states that
it is deemed unfair to use false indications of source and false appellations of origin and to make
unauthorized use of appellations of origin, even where they are accompanied by such expressions astype, model, system, kind, variety or the like.
B. 
DEFINITION OF GEOGRAPHICAL INDICATIONS AND CRITERIA FOR RECOGNITION  (SECTION B OF
DOCUMENT IP/C/13)
2./3. Is there a clear distinction between the terms "geographical indications", "appellations
of origin" and "indications of source" in your country's industrial property law and/or related
law or are there any substantive criteria to di stinguish these terms?  Does your legislation
contain criteria for homonymous geographical indications for wines and spirits?IP/C/W/117/Add.16
Page 11
Peru's industrial property law draws no dist inction between the three legal categories
mentioned.  The general protection regime relates to "appellations of origin".
The rules in force contain no criteria regulating homonymous appellations of origin, for any
kind of product.
C. RELATIONSHIP WITH TRADEMARKS (SECTION F OF DOCUMENT IP/C/13)
4. Does your country's industrial property law and/or related law provide the refusal or
invalidation of a trademark registration which co nsists of or contains geographical indications
identifying wines or spirits with respect to such wines or spirits not originating in the indicatedterritory?
Peruvian industrial property regulations establish two instances or grounds for the
irregistrability of trademarks relating to appellations of origin and, in this connection, for invalidating
the registration if it has been granted.  The first is that it is not possible to register as trademarks anysigns which reproduce or imitate a protected appellation of origin or consist of a national or foreign
geographical indication capable of misleading the public as to the products or services to which they
apply, or that their use may mislead the public as to the origin, source, qualities or characteristics of
the goods for which the trademarks are used.  The second is that it is not possible to register as
trademarks any signs which may mislead business circles or the public as to the source, nature,method of manufacture, characteristics or qualities or suitability for use of the products or services
concerned.
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