Look at Intellectual Property protection through unfair competition law

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Cookies Settings

Look at Intellectual Property protection through unfair competition law

Sponsored by

26BARLAW - Barrera & Asociados

Although intellectual property enjoys regulated protection under consolidated legal frameworks—Andean Community Decisions 486 and 351, of community-wide scope, and Legislative Decrees 1075 (industrial property) and 822 (copyright)—its bearing on acts of unfair competition is unavoidable: it may arise to the detriment of those rights or through the abuse of protection mechanisms, harming the orderly concurrence of competitors.

At times, when protection is limited by a lack of rights—particularly in industrial property, which is constitutive in nature—unfair competition law operates as an alternative avenue for relief. This is not the ideal scenario, as the legislation itself acknowledges, but in these cases the authority charged with policing unfair competition is the only one able to afford protection.

Legislative Decree 1044, which defines unfair competition offenses, contains three provisions tied to intellectual property: the first two address acts of confusion and of exploitation of another's goodwill through the improper use of protected elements, while the third, of a transitional nature, transfers functional jurisdiction over these cases to the intellectual property protection authorities.

Case law shows that elements traditionally linked to intellectual property may be left vulnerable where they lack a registered title. Such is the case of trade dress—for example, a business's décor, usually associated with a registered trademark—where the Peruvian Unfair Competition Office sanctioned a competitor for imitating the complainant's decorative elements as an act of undue exploitation of another's goodwill (Resolution No. 054-2022/CCD-INDECOPI). Although the intellectual property authority could assess the use of such elements, in the absence of a valid right Peruvian law allows their examination and potential sanction through the unfair competition route.

The policing of unfair competition also plays a more active role against the abuse of intellectual property protection tools for the sole purpose of harming a competitor. Although the analysis of elements such as trademarks converges in these cases, their potential for harm justifies the intervention of the Peruvian Unfair Competition Office above any other.

This is illustrated by the phenomenon of trademark squatting to the detriment of holders with rights abroad but not in Peru, against third parties who seek to register the mark in their own name in order to block the legitimate holder and its licensees or distributors, thereby creating a tainted monopoly. The authority analyzed this as an abuse of rights, reasoning that unfair competition is a "residual institution" enabling a party who, in a situation involving industrial property rights, holds none, to defend itself against unfair conduct (Resolution No. 183-2010/CCD-INDECOPI). Along the same lines, it examined the use of cancellation and nullity actions for the sole purpose of obstructing a competitor (Resolution No. 0123-2025/SDC-INDECOPI).

In sum, Peru has specialized legislation for the enforcement of intellectual property, yet there are situations that—despite involving it—preclude action by the specialized authority. For these, the legislation itself empowers the unfair competition authority to examine and potentially sanction them, affording a form of indirect protection. This does not diminish the need to register rights in a timely manner: although the unfair competition authority can conduct a more thorough analysis, it lacks the speed and flexibility of the intellectual property authority (namely, Peruvian Trademark Office and Peruvian Copyright Office), which is better adapted to the day-to-day handling of these cases.

more from across site and SHARED ros bottom lb

More from across our site

Fresh off a string of ITC victories, Latham has recruited Baker Botts’ ITC leader Lisa Kattan, adding another prominent name to one of the market's busiest ITC practices
The firm hopes its recent Düsseldorf expansion and UK partner hire will strengthen its offering as it looks to an integrated model to boost UPC capabilities
Stephenson Harwood’s trademark prosecution push and patent ambitions could complement Taylor Wessing’s remaining but depleted European IP strength following its UK arm’s departure
Gerben IP’s first woman partner, Sophie Edbrooke, explains how boutique life allowed her to broaden her expertise, take on leadership responsibilities and carve out a route to the top
INTA has a right to protect its Annual Meeting, but making it harder for others to hold similar events risks leaving delegates with a bigger travel bill
The firm says it hopes to capture patent litigation work in Texas by arming itself with experienced trial lawyers with venue expertise
Ken Iijima's arrival continues a trend of ex-Pizzeys practitioners joining RnB IP, whose co-founder says independent ownership and a lucrative compensation model have become attractive in a consolidating market
McDermott Will & Schulte lawyers explore why the UPC is seeing rapid adoption by medtech for fast-moving disputes, while pharma and biotech take a cautious, selective approach over revocation risks
IP firms may be growing more comfortable with external capital, but uncertainty over who could ultimately own the business is complicating the investment pitch
The former Western District of Texas judge addresses perceptions of his courtroom, reveals what comes next as he returns to practice at A&O Shearman and explains why marathon running is ‘cathartic’
Gift this article