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.
