The current criminal process in Peru is based on a mixed adversarial model, which means that it combines elements of the adversarial system and the inquisitorial system.

The current criminal process has the following stages:

1. Preliminary investigation: The prosecutor directs the investigation to determine if a crime has been committed and who is responsible. They may request proceedings such as the taking of statements, the seizure of evidence and the medical-legal examination.
2. Intermediate stage: The prosecutor presents the formal accusation and the judge verifies whether it meets the legal requirements. If the accusation is valid, the oral trial is scheduled.
3. Oral trial: This is the central stage of the process, where the evidence is presented and the case is debated before a judge. The prosecutor must prove the guilt of the accused beyond a reasonable doubt. The accused has the right to defend him or herself and present evidence.
4. Sentence: The judge passes sentence, declaring the accused guilty or innocent. If found guilty, the judge imposes a sentence.

The main characteristics of the current criminal process in Peru are the following:

• Orality: Most actions are carried out orally, which favors transparency and immediacy.
• Concentration: The stages of the process are concentrated in a single judicial act, which speeds up the process.
• Contradictory: The parties have the right to be heard and to contradict the other party’s evidence.
• Challenge: Judicial decisions can be challenged before a higher court.

In recent years, various reforms have been made to the Peruvian Criminal Procedure Code, with the aim of improving the functioning of the criminal process. Some of the most important reforms include the implementation of specialized justice (specialized courts have been created for relevant crimes), regulation of preventive detention (stricter requirements have been established for the application of preventive detention), and implementation of alternative conflict resolution mechanisms (mechanisms such as conciliation and reparation agreements have been regulated).

Peru has a low level of development of new technologies and an economy where the majority of companies have traditional views around the exploitation of new forms of sale and presence in the market. Often, offenders diversify more than formal businesses and the use of social media for not only the sale of fake goods, but also on demand, the manufacture of fake goods, as well as advertising unauthorized events where copyrights or trademarks are infringed, is a weapon that the black market has explored for a long time and ahead of many of the intellectual property rights (IPR) holders.

Considering this, Peru has developed a basic protection of IPR since its adoption of the first regulations, initially focusing efforts mainly on administrative cases. In fact, several of the specialized criminal agencies were created no more than 25 years ago and more than 70% of the Peruvian territory still has corporative offices instead of those specialized in IPRs.

However, in recent years, the importance of the matter has led to an increase in the adoption and creation not only of decision-making agencies, such as IP Prosecutor Offices, IP Criminal Courts and IP Police, but also discussion and management forums such as the Commission on Combating Customs Crime and Piracy, where the many enforcers meet to discuss and propose standards of regulation on different topics related to IPRs.

In light of that, the vast majority of IP criminal cases are related to trademarks and copyrights, and, to a lesser degree, patents and other topics related to IP. Since Peru is a productive country, several cases relate to workshops of sectors such as textile, footwear, pharmaceuticals and luxury, among others, where several of the fake seized goods are supplies where the process for completing manufacture of the goods is supposed to be concluded in a different facility.

In Peru, crimes against intellectual property are classified in the Penal Code, specifically in Articles 217 to 222-F. These crimes fall into two main categories:

• Crimes against copyright and related rights:
  • Unauthorized reproduction, distribution, communication or transformation of protected works (Article 217).
  • False attribution of authorship (Article 218).
  • Deletion, alteration or destruction of rights management data (Article 220-D).
  • Unauthorized disclosure of an unpublished work (Article 220-E).
• Crimes against industrial property:
  • Unauthorized use of product (Article 222).
  • Counterfeiting of trademarks (Article 223).
  • Falsification of geographical indications (Article 224).
  • Usurpation of designations of origin (Article 225).
  • Violation of industrial secrets (Article 226).

The destination of assets seized during tax investigations into intellectual property crimes in Peru is defined in accordance with the provisions of Legislative Decree No. 1092 and the Peruvian Penal Code.

In general, seized assets can have the following destinations:

• Be destroyed: If the goods are counterfeits or imitations that threaten public health or national security.
• Be donated: If the goods are suitable for human or animal consumption, or if they can be used for educational or charitable purposes.
• Be sold at public auction: If the assets cannot be destroyed or donated. The proceeds from the sale are used to pay the costs of the process and as donations to the Reparations Fund for Victims of Terrorism.
• Be returned to the legitimate owner: If it is proven that the goods are not counterfeits or imitations, and their legitimate owner has claimed them.

In the case of intellectual property crimes, the seized assets are usually counterfeit or imitated products, materials used for counterfeiting or imitation (machines, printers, labels, etc.), or evidence of the crime (documents, invoices, computers, etc.).

The specific destination of the seized assets is determined in each specific case by the judge or prosecutor in charge of the investigation. Factors such as the seriousness of the crime, the value of the assets and the damage caused to the owner of the IPR are taken into account.

The penalties for these crimes vary depending on the seriousness of the event and the damage caused. In general, they range from a custodial sentence of no less than two years to a custodial sentence of no more than eight years, in addition to fines and civil compensations.

In criminal proceedings in Peru, the burden of proof is based on the principle of presumption of innocence, which means that the accused is presumed innocent until proven otherwise. The responsibility of proving the guilt of the accused falls on the Prosecutor’s Office, who must present sufficient evidence to convince the judge that the accused is guilty of the crime as charged.

The accused has the right to defend him or herself and present evidence that proves innocence. However, there is no obligation to prove innocence. In IP rights, the IPR holders submit the necessary evidence to demonstrate information that the seized goods or affected rights are fake or unauthorized copyrights.

Finally, although Peru’s criminal process is structured as a public persecution, the presence and participation of IPR holders is very significant and needed. From the phase of determination of the nature of the seized goods to the demand for compensation, it is important to follow up criminal cases, as many of them can be related to other crimes and in specific cases the presence of the aggrieved companies can help to dismantle criminal organisations.

Peru developed a strategy focus for the protection of IPRs several years ago. However, important progress was made following the adoption of certain treaties, one of the most significant being the Peru–US Trade Promotion Agreement (TPA), signed in Washington D.C. on April 12, 2006, which came into effect on February 1, 2009. This instrument provided the initial political and economic interests for Peru to establish specialized agencies in key cities where, based on prior studies, the struggles against counterfeiting and piracy needed better support than in other locations.

Several cities now have specialized offices created by the Public Ministry to conduct investigations into crimes against IPRs. For example, Lima City has IP Prosecutor’s Offices in Lima Downtown, Lima North, Lima Northwest and in the Constitutional Province of Callao, which is more focused on matters related to importation and exportation activities. Further, the main border cities of the country have their own specialized Prosecutor’s Office, such as Tumbes (border with Ecuador), Puno (border with Bolivia), Tacna (border with Chile) and Iquitos (border with Brazil). In this last city there is no a specialized office per se, but one of the corporative offices investigates IP crimes that take place in the city.

Peru also has a specialized IP Court in Lima Downtown and in the coming years more courts should be created for this purpose in other cities.

Peru does not have a special regulation for civil litigation currently. The only way to continue with an enforcement matter that began before the Peruvian Trademark and Copyright Office is to appeal the administrative decision issued by the cited entity before a contentious administrative court.

Administrative litigation processes in Peru are a legal mechanism that allows people to challenge administrative acts and decisions issued by state entities. These processes are processed before the Judiciary, through the courts specialized in contentious administrative matters. Peru does not have a special regulation regarding enforcement actions, the only option being to dispute an administrative decision issued by the Peruvian Trademark and Copyright Office (INDECOPI) before the referred courts, which is not a civil stage.

The laws involved for these processes are mainly the Legislative 1075, the Andean Decision 486, the General Law of the Administrative Process (Law 27444), Legislative Decree 1092, and Supreme Decree 0003-2018 which regulates IP matters. Courts also request a preliminary opinion which is binding to the Andean Court, which through prejudicial interpretations issues an opinion on how a specific legal disposition should be understood and addressed in the specific matter that has been exposed to the Contentious Court.

The specific stages of the contentious administrative process are as follows:

1. Lawsuit: The person who wishes to challenge an administrative act must file a lawsuit before the competent court. The claim must indicate the act being challenged, the reasons for the challenge and the evidence that supports the claim.
2. Response: The defendant entity has a deadline to respond to the complaint and present its arguments and evidence.
3. Procedural sanitation: The judge verifies that the complaint and the response comply with the legal requirements. If so, the claim is admitted for processing.
4. Evidence: The parties may present evidence to support their arguments. The evidence can be documentary, testimonial, expert, etc.
5. Sentence: The judge analyzes the evidence and arguments of the parties and issues a sentence. In the ruling, the judge decides whether the administrative act is valid or void.
6. Appeals: If one of the parties does not agree with the sentence, they can file an appeal before the corresponding higher court. The higher court can confirm, revoke or modify the first instance ruling.

As mentioned, Peru does not currently have a civil regulation for enforcement matters. However, the nearest approximation to a classic civil enforcement action is a recent provision added to the Legislative Decree 1075 that states that the landlord/facilitator of an infringement act can be included (not as a responsible party of the infringement itself). It means that after the definitive conclusion of an infringement claim filed before the Peruvian Trademark and Copyright Office, and upon the imposition of measures to prevent the continuation of the infringement, the aggrieved company may request before the same entity the imposition of direct sanctions against the landlord for not complying with the referred orders.

Further, in the scenario that the infringement claim has been declared well-founded, it is possible to begin a civil lawsuit with the purpose of requesting the payment of damages based on the existence of the infringement.

On January 24, 2024, after an arduous coordination with the IP Police, a huge enforcement action against one of the most important retail complexes in Lima City, known as “Polvos Azules”, took place. This complex is one of the most important targets for attacking counterfeit goods in Peru and normally it would be quite complicated to coordinate an intervention there, mainly due to corruption and possible leakage of information to the owners of the establishments about the enforcement action, as well as potential delays in coordinating authorities. Therefore, this type of action is not enforced frequently. Despite that, during this action that had the support of the IP Prosecutor Office, IP Police raided 32 stands and around 30,000 units of high-quality counterfeit clothing bearing similar and identical signs to well-known trademarks (such as Tommy Hilfiger, Lacoste, Burberry, adidas, and Nike, among others) were seized. The seizure of such a high number of counterfeit goods was possible because the IP Prosecutor Office, in coordination with IP Police, requested a court to emit a search warrant and seizure.

When sellers saw the IP Police presence they started to close their stores; however, IP Police were able to enter into all the establishments. After that, riots started to arise and lights were turned off to impede the execution of the search warrant and seizure. Fortunately, helmeted police officers had power over the situation and safeguarded all officers of the IP Police and the five Prosecutors.

The remarkable aspect of this action was the large deployment of authorities that included around 600 police officers to prepare for any contingency, approximately 50 members of the IP Police and finally five Prosecutors, including the head of the IP Prosecutor Office, that legitimated actions of the IP Police.

As a consequence, the IP Prosecutor ordered the preliminary seizure of the alleged counterfeit goods.

According to the quantity of seized goods, all the infringing clothing was estimated to have an economic value of USD 3 million.

Now, from a legal perspective, the IP Prosecutor must analyze this case and decide to either push a formal accusation or summon the parties to an early termination or conciliation hearing. Finally, the destiny of the goods will be decided by the Judge or Prosecutor (depending on when the case is closed). It is most likely that they will be confiscated.

This enforcement action will have an important impact and convey a powerful message to infringers because the Polvos Azules complex has been on the Office of the United States Trade Representative’s (USTR) “Notorious Market List” for several years. This list contains markets, physical and online, around the world that trade or facilitate trademark counterfeiting.

Grey market goods are not prohibited in Peru based on the disposition of the Andean Decision 486, which states that registration of a mark shall not give the right to prevent a third party from engaging in commercial acts in relation to a product protected by the said registration after the product has been brought on to the market in any country by the owner of the registration or by another person with the owner’s consent or economically connected with him, in particular where the goods and the containers or packaging that are in direct contact with them have not been subjected to any modification, alteration or deterioration. It means that it is not possible to prevent the commercialization of genuine goods in any way, according to the principles of free trade and international exhaustion of IP rights.

In Peru, consumer protection and the regulation of trade in counterfeit products are mainly governed by the following regulations:

1. Consumer Protection and Defense Code (Law 29571): This is the main disposition that regulates consumer protection in Peru. It contains provisions that prohibit the sale of counterfeit products and establish the rights of consumers to receive quality products and with truthful and sufficient information.
2. Chapter VIII of this law establishes that products must comply with quality and safety standards. The sale of dangerous counterfeit products is considered a serious infringement, and suppliers are required to remove products from the market that pose a risk to consumers.
3. Penal Code: Criminalizes the falsification of products and establishes sanctions for those who market counterfeit products that endanger the health or life of consumers. Specific sanctions for the marketing of dangerous counterfeit products are prison sentences and fines.
4. Law for the Suppression of Unfair Competition (Legislative Decree 1044): This law prohibits unfair business practices, including the sale of counterfeit products, and establishes penalties for violators.
5. Peruvian Technical Standards: There are various Peruvian Technical Standards that establish the quality and safety requirements that products sold in the country must meet, helping to prevent the distribution of counterfeit products.
6. General Directorate of Environmental Health and Food Safety (DIGESA): This directorate is responsible for the supervision and control of dangerous products, ensuring that they comply with safety and quality standards. DIGESA can remove dangerous counterfeit products from the market and sanction violators.
7. Regulation on Commercial Advertising: This regulation, administered by the National Institute of the Defense of Competition and Intellectual Property Protection (INDECOPI), regulates advertising and prohibits misleading advertising that may mislead consumers regarding the authenticity of the products.
8. Customs Crimes and Piracy Law (Law No. 28008): This law regulates the importation of products and establishes measures to prevent and punish the entry of counterfeit products into the country, including those that are dangerous to health.

These regulations and entities work together to protect Peruvian consumers from the sale of counterfeit products, ensuring that they receive authentic, quality products, and sanctioning those who violate these provisions.

As mentioned above, there is no specific civil regulation for IP enforcement matters. However, the most important aspect of criminal enforcement is to achieve actual seizures of fake goods, which are removed from the market and the IPR holders may confirm the destruction of the same.

Peru has always been known for its apparel manufacturing, being well-recognized for its wool, therefore it is not surprising that many different brands choose to manufacture their apparel in the country. Accurate counterfeit apparel has always been difficult to manufacture; however, in recent years, it has been noticed that the quality of those imitations has greatly increased, with small details being copied, as well as key features that would normally be unique to the original goods (such as particular ways of sewing and embroidery). 

The “quality” of imitation footwear has also increased, in particular, imitations of special models of footwear from major brands which, supposedly, are offered at high prices (because of their exclusivity) but can often be found being offered on social networks for marginal prices or even in wholesale. Therefore, we are dealing not only with poor quality counterfeit goods but also with good-enough quality counterfeits, made with metallic molds in clandestine factories.

Peru is, unfortunately, also known as an important producer of counterfeit pharmaceutical and personal hygiene goods.

Considering said issues, Peruvian legislation has been sufficiently broad to cover these activities; therefore, from a legal perspective, we have the tools to tackle these recent advances. However, the one aspect that will always be a challenge is coordination with the authorities, as the main objective in these cases is to get the detected goods out of the market as soon as possible. For that goal to be achieved, we need to constantly inform the authorities of said new trends and propel them to carry out new actions against every target. 

Since Peru’s economy is not yet well developed, trends such as online marketplaces and such have not yet been seen on a large scale. Additionally, counterfeit culture in general is accepted. Both factors lead to the continuous existence of market clusters in which counterfeit products are freely offered and commercialized. Some of the most important areas are Lima Downtown (toys and electronics in general), Polvos Azules (smuggled and counterfeit apparel and video games) and Malvinas (located in Lima Downtown where a variety of counterfeit goods such as electronics, chemicals and household appliances can be found).

It should be noted that these trends depend on the type of goods, for instance, electronic goods such as cell phones and their spare parts can easily be offered in the areas mentioned above or through marketplaces and social networks. 

In Peru, important marketplaces are MercadoLibre, Linio, Juntoz, Cornershop, Temu, Falabella and Ripley. 

Regarding live video streaming, it has been noticed that this is used as complementary means for promoting goods, for instance, we detected stores with accounts on TikTok with frequent live streams showcasing their counterfeits with high audience numbers.

Dupe or knockoff culture is part of the same counterfeit culture that has always been present in Peru. However, it is felt that the public in general has actually become more conscious of counterfeits and the impact of counterfeiting, being more aware of not buying goods of that quality.

Peruvian legislation does not have an express provision implementing the shifting of responsibility to marketplaces (or against third parties that help the incurring of infringing activities); however, there are certain provisions in existing laws that can be applied to those cases: 

Legislative Decree No. 1075 - applied for trademark infringement matters

Article 115 - Research powers

Without this list being exhaustive, the competent national authority has the following investigative powers: 

(…) 

(e) Demand, via precautionary measure or resolution that puts an end to the instance, from natural or legal persons, as well as public or private entities, state or non-state, with or without profit, the adoption of measures that prevent the continuation or perpetration of acts carried out by third parties that involve the unauthorized use of elements protected by industrial property.

Legislative Decree No. 822 - applied for copyright infringement matters

Article 39 

No authority or natural or legal person may authorize the use of a work or any other production protected by this Law, or provide support for said use, if the user does not have the prior written authorization of the owner of the respective right, except in exceptional cases provided for by law. In case of non-compliance, you will be jointly and severally liable.

At the moment, despite the fact that the Peruvian legislation does allow the initiation of civil process for the request of payment of damages, there has not been any major case law leading to that front. 

It should be noted that despite having specialized administrative authorities, these            authorities are not entitled to grant damages as they are not judicial authorities. On the other hand, judicial authorities are not as well specialized to analyse requests for such damages or any other collection process through civil courts.

Important marketplace platforms that represent issues in our jurisdiction are the following: MercadoLibre, Linio, Juntoz, Cornershop, Temu, Falabella and Ripley. 

Peruvian legislation provides the following in Legislative Decree No. 822 and Criminal Code involving the use of circumvention of technological protection measures which include the manufacture, import and sale of said technology and devices.

Legislative Decree No. 822 - Peruvian Copyright Act

Article 196-A. - Circumvention of effective technological measures

In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers and producers of phonograms use in connection with the exercise of their rights and to restrict unauthorized acts with respect to their works, interpretations or performances and phonograms, the actions indicated in the previous article may be directed against:

a) Those who evade without authorization any effective technological measure that controls access to a protected work, interpretation or performance or phonogram.

b) Those who manufacture, import, distribute, offer to the public, provide or otherwise market devices, products or components, or offer to the public or provide services, provided that they:

I. are promoted, advertised or marketed with the purpose of circumventing an effective technological measure; 

II. have a limited purpose or use of commercial importance other than to circumvent an effective technological measure; or

III. are designed, produced or executed primarily for the purpose of allowing or facilitating the circumvention of any effective technological measure.

Peruvian Criminal Code

Article 220-A. - Circumvention of effective technological measures

Anyone who, for marketing purposes or any other type of economic advantage, circumvents without authorization any effective technological measure used by producers of phonograms, artists, performers, as well as the authors of any work protected by intellectual property rights, will be punished, with a custodial sentence of no more than two years and a fine of 10 to 60 days.

Article 220-B. - Products intended for the circumvention of technological measures

Whoever, for the purposes of marketing or other type of economic advantage, manufactures, imports, distributes, offers to the public, provides or in any way markets devices, products or components intended primarily to circumvent a technological measure used by producers of phonograms, artists performers, as well as the authors of any work protected by intellectual property rights, will be punished with imprisonment of no more than two years and a fine of 10 to 60 days.

Article 220-C. - Services intended for the circumvention of technological measures

Whoever, for the purposes of marketing or other type of economic advantage, provides or offers services to the public intended primarily to circumvent an effective technological measure used by producers of phonograms, performers, as well as the authors of any work protected by rights of intellectual property, will be punished with a custodial sentence of no more than two years and a fine of 10 to 60 days.

Peruvian copyright legislation does provide for the liability of third parties who engage in facilitating copyright infringement activities (such the above quoted Article 115.e of Legislative Decree 1075 and Article 39 of Legislative Decree 822), therefore, if required the Peruvian Copyright Office could hold liable those companies or individuals.

Peru does not have legislation addressing the online sale of counterfeit goods specifically. 

When an infringer is identified as engaging in both physical and online illicit activities, infringement claims are filed before the authority alleging the infringement through both mediums, requesting not only the takedown of the detected web pages but also the physical inspection of the detected establishments. 

Peruvian legislation has delegated the management of domain names to an authority called the Peruvian Scientific Web (Red Científica del Perú) which is responsible for controlling the registration of Peruvian domain names, including the suffix “.pe”.

Considering that this authority does not necessarily research the denominations requested as domain names, possible contingencies related to trademark infringement could arise. 

Considering the above, the authority has a specialized court called the Peruvian Cyber Court (Cibertribunal Peruano) which is responsible for solving all disputes submitted by trademark owners. 

Regardless of the above, when a trademark infringement is involved, the Peruvian Trademark Office is also the specialized authority that can request the changing or takedown of infringing web pages using infringing domain names, those requests are directed to the internet service providers operating in Peruvian territory.

Since the COVID-19 pandemic there has been an increase in counterfeit/fraudulent websites, infringing of both trademark and copyright. Help in these matters can be given by the Peruvian Trademark or Copyright Office, depending on the scenario.

Since the COVID-19 pandemic there has been an increase in commercialization through social media platforms and marketplaces. However, that situation has not led to a decrease in physical commercial activity (brick-and-mortar counterfeit activity). 

Nevertheless, it is unquestionable that there was an increase in electronic commerce, mainly from companies that engage in said activities through Instagram or TikTok as they are mediums to acquire goods that are later sent physically to customers’ addresses. 

In this sense, social media continues being a critical tool for bad actors in the Peruvian jurisdiction as it enables them to act anonymously (for instance, Instagram or TikTok profiles do not require them to input real information about their identity) without issuing any type of receipt that could be tracked to an individual or company through the Tax Registration Database. However, once these actors start to engage through physical means, we can better reach them and initiate enforcement actions.

With respect to AI, Peru has recently enacted Law No. 31814 - Law to promote the use of artificial intelligence in favor of the economic and social development in the country, which declares of national interest the promotion of AI for the improvement of public services, education, learning, health, justice, public security, inclusion, economy, social problems and national defense.

However, currently there is no complementary law expanding the general provisions of said law. Nevertheless, it should be noted that a project of regulation has recently been made public for comments from any interested individual.

No criteria affecting lawyers in respect of the use of AI have been set out. 

There is no current legislation or provision dealing with the impact of AI on existing privacy legislation.

We do not deal with deepfakes, although Peruvian legislation does have general provisions that protect the unlawful use of the image and voice of any individual, which would apply to said cases. However, there is no recent case law to be analyzed. 

There are not yet any laws or prospective laws relating to crypto technology.

Legislative Decree No. 822 (Copyright Act) allows the Peruvian Copyright Office to initiate enforcement actions against illegal streaming websites.

Legislative Decree No. 822 allows the Peruvian Copyright Office to proceed with takedowns of illegal streaming websites. In this sense, although usually carried out through ex officio actions, the Peruvian Copyright Office can also proceed with site blocking orders if required through ex parte requests.

We have not detected the use of QR code abuse tactics in online phishing scams in the Peruvian jurisdiction.

IP protection can be enforced via Customs authorities and border measures. 

With respect to this, Customs officers have the authority to carry out measures ex officio, as long as IP owners have registered their right in the Customs recordal, which is the surveillance system managed by Customs to catalogue which rights are in force.

Being that this is an ex officio action, the authority covers the initial costs incurred. Additionally, as provided in Peruvian legislation, when an ex officio action like this is deployed, no economic collateral is requested. 

Despite this, border measures can be preliminary measures that depend on the subsequent action initiated by the IP owner. In that sense, although Customs authorities carry out actions like these ex officio, for the border measures to continue the IP owner must accredit that legal actions were initiated against the intervened shipment. Those actions could be either an infringement claim (copyright or trademark) before the Peruvian Trademark or Copyright Office (administrative authorities) or a criminal claim before the IP Prosecutor (Judicial authority).

Those actions in themselves do generate costs, for example from official fees and additional costs like storage and subsequent destruction of seized goods.

The main benefit of the system is the constant surveillance, with Customs authorities checking each shipment, always taking into consideration IP rights duly registered. 

Also, through the Customs recordal, IP owners have a line of communication with Customs authorities to whom they can submit additional information on how to recognize counterfeit goods of certain brands. 

Although not without their issues, border measures grant IP owners a timeframe to properly demonstrate the initiation of infringement actions (three business days) in which the shipment cannot continue its importation procedure.

A possible downside would be if Customs have not been able to unify its recordal with the one used by the Peruvian Trademark Office, causing those trademark owners to have to submit an additional registration request before Customs to benefit from the border measures actions.

The most recent improvement to the system has been the use of electronic filing systems through which IP owners can submit their recordal requests, renewals and, most importantly, all documents deemed important to identify counterfeits.

The relationship between Customs and enforcement authorities is a close one due to the important role Customs plays in the identification of counterfeit shipments. This becomes even more significant as they combine forces against smuggling activities, with Customs having direct sanctioning faculties. 

When dealing with IP infringements, the role of Customs is important as they are the first authority in contact with the illicit merchandise, and information is then passed to either the administrative authorities (such the Peruvian Trademark or Copyright Offices) or the Intellectual Property Prosecutor Office (specialized prosecutors that investigate IP crimes). 

With respect to remedies or damages, despite being legally possible to request payment of these, in practice, they are hardly ever requested as they require a great deal of proof to correctly calculate the economic equivalent of the alleged damage. 

By requesting their inclusion in the Customs recordal, IP owners can submit additional information and guidelines to better identify counterfeit products. Notwithstanding this, Customs authorities have always welcomed IP owners’ participation in training and identification guidance through special events or through daily interaction with Customs officers and brands’ representatives in the jurisdiction.

Changes will continue to happen. The COVID-19 pandemic has skewed most of the commercial activity to an electronic environment which is a trend that is likely to continue. Current Peruvian legislation does have the legal tools to tackle those actions, however, potential new scenarios such as the use of AI, use of deepfakes and the problems caused by the anonymous activities through social media platforms will be challenges that IP holders need to overcome.

During the pandemic, one thing that caught our attention was the increase of electronic entertainment devices such as earphones and video game consoles, since most of the activities people could do were based indoors. We also noticed an increase in importation of surgical masks which have become part of people’s daily lives in general.

The Commission for the Fight against Customs Crimes and Piracy in Peru was created by Supreme Decree 003-2002-MINCETUR, promulgated on March 6, 2002. This regulation established the creation of the commission and defined its functions and powers to combat crimes related to smuggling and piracy in the country.

The commission is in charge of coordinating and executing actions to prevent, detect and combat crimes related to smuggling, piracy and other Customs violations. This commission is made up of various state entities, including the National Superintendence of Customs and Tax Administration (SUNAT), the National Police of Peru, and the Public Prosecutor’s Office, among others.

Its main functions and advantages include:

• Interinstitutional Coordination: Promote cooperation between different state institutions to comprehensively address Customs crimes and piracy.
• Supervision raids: Carry out joint raids to detect and stop illicit activities related to smuggling and piracy.
• Training and Awareness: Develop training programs for officials and awareness campaigns for citizens on the negative effects of these crimes.
• Regulatory Proposals: Propose changes and improvements to legislation to strengthen the legal framework against these crimes.
• Information Collection and Analysis: Collect and analyze data on Customs crimes and piracy to design effective strategies to combat these problems.

The commission seeks to protect the country’s economy, ensure compliance with Customs regulations and protect intellectual property rights.

6.1 In which scenarios would a person be imprisoned for committing intellectual property crimes?

A person can be imprisoned when they commit any of the offenses contained in the Criminal Code however, in the majority of cases, the imprisonment sanctions are only effective when they are linked to other crimes, such as public health or common danger. For example, an individual would face an effective imprisonment sanction when they manufacture fake medicines, medical supplies or devices, electrical supplies, engines, or other products that may result in harm to the consumers’ safety or health.

6.2 How is the destruction of counterfeit products regulated once the criminal proceedings are concluded?

The destruction of the seized goods is an internal administrative proceeding managed by the Chief of the Warehouse of the Public Prosecutor’s Office (administrative entity that belongs to the General Management, not to the Criminal Prosecutor specialized against Customs and IP crimes). According to the Regulation of the Custody Chain of Material Elements, Evidences and Administration of Seized Goods (approved by Resolution of Supreme Prosecutor’s Office 729-2006-MP-FN) of the Peruvian Public Prosecutor’s Office, the IP Prosecutor only orders destruction without any cost to the IPR holders. As a consequence, the Chief of the Warehouse of the Public Prosecutor’s Office is autonomous to organize the destruction, and several of these destructions can be combined (according to the agenda/schedule) in order to save cost to the Peruvian State. Once done, all destructions are reported to the General Management of the Public Prosecutor’s Office, but it is the IP Prosecutor who orders the destruction.

Peru has a specific regulation that states that enforcement authorities should order the destruction of infringing goods, and only in cases where the seized materials are considered to meet a vital need, such as apparel, can they be donated. In cases where the used material is considered toxic or harmful for consumers’ health or safety, destruction is the first option.

No updates at this time.

National Institute for the Defense of Competition and Protection of Intellectual Property (INDECOPI)

Main administrative authority in which the following authorities resolve matters related to IP infringements: Peruvian Copyright Office, Peruvian Trademark Office and Peruvian Patent Office (www.gob.pe/indecopi).

Peruvian Cyber Court

Entity in charge of dealing with domain names disputes (http://cibertribunalperuano.pe).

Peruvian Customs Office

Although divided into several areas, the Peruvian Customs Office oversees managing the Customs recordal and works alongside officers from the Peruvian Copyright, Trademark and Patent Office in the detection of counterfeit shipments (www.sunat.gob.pe).