We take this opportunity tomention about the granting of expenses and costs by the Peruvianadministration, regarding the infringement actions procedure for the undue useof registered brands on behalf of the winner party.
We consider appropriate tocarry out a brief explanation of the terms “expenses” and “costs”, under the supplementaryapplication of the rules of theCivil Procedure code, which states the following:
First.- The provisionsof this Code apply additionally to other proceduralrules, whenever they are compatible with their nature.
From this point we turn to the definition of costs and expenses entered in the Peruvian Civil ProcedureCode.
The costs are the court fees, fees for legal aid bodiesand other legalcosts incurred in the process.
Costs are the attorney's fee of thewinning party, plus a fivepercent destinated to the Law Bar of the Judicial Districtfor Mutual Fundand to cover the fees of lawyers in Legal Aidcases.
In this case, we understood that references to the judiciary (word "court") are related the ADMINISTRATION, example: in the case of "legal fees" is meant "administrativefees" and so on.
Furthermore, as stated in Article411, it should be noted that it is not apply thepercentage allocated to the Bar ofthe locality where the procedure has been, because for thedefense in administrative channel, that is INDECOPI, it is not mandatory the consultancy of lawyers (although itis advisable, due to the specialization ofthe issues which are aired inthat institution).
With this legal framework we can make a useful definition for the purposes of the present disclosure,the expenses are related with all the charges such as:lawyer professional fees, operating expenses etc.; while “costs” means thegovernment fees or administrative fees and so on charges incurred in theprocedure.
Current law provides us withthe possibility that resolutions which approved the payment of expenses andcosts, become enforceable titles, that is, they could be executed subsequentlybefore the judicial channel by means of a relatively fastest procedure than themost judicial cases (just 5 months approximately).
For this reason, we must take special care about the filingdocumentation, it have to be very specific regarding the existence and value ofthe costs and expenses, as this will lead to a title that will be easily enforceablebefore the judicial channel and it could be guaranteed, in consequence, with theprecautionary measures contemplated in the procedural law.
In the case of taxes, which have been paid in parts, it must be enclosedthe documentations which support it as well as the reasons which explain theaforesaid mentioned division before the Peruvian administration, in order toprove the requirement stated by the 418 of the procedural code, which states :
Article 418.- Originof the costs.- To enforce the payment of the costs,the winner must accompany the indubitable and duly dated document whichproves the payment, as well as the corresponding taxes.Based on the documents submitted,the judge will approve the amount.
This is another requirement that must be taken into account to make the payment of costs and expenses, as it clearly prevents anyone can invent ghost costs,without the real payment of fees.
We are interested in referringto two precedents which the Peruvian trademark administration issued concerningthese matters. In a resolution approved a settlement of $ 8,202.00 for expensesand $280 for costs (Res. 1957-2012/CSD-INDECOPI). In another settlement wasapproved the amount of $ 1,668.75 for expenses and $110.00 for costs (Res.1951-2012/CSD-INDECOPI).
The payment of expenses and costs is a useful tool forthose users who have incurred in high costs to claim the protection of their intellectualproperty rights, allowing the reimbursement of expenses that it should not beincurred if the offenders will respect the rights granted by the administration.
Finally, it is necessaryto recognize the value of these tools granted to entrepreneurs trademark ownersby means of the DL No. 1075, current intellectual property Peruvian law, allowingto recover the amount spent on the protection of their intellectual propertyrights through a procedure that will ensure the judicial enforcement, with all advantagessuch as: recovery of the amount and the possibility of seize or sequester goods of the offenders, ifthey would not pay the debt in cash.