The Administrative Court for the Defense of Competition and Protection of Intellectual Property has approved by Rule Nº 001-2013/TRI-INDECOPI, published on August 17, 2013 in the official gazette “El Peruano”, the new System of notification of administrative acts and other notices issued in administrative proceedings before Indecopi – Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (National Institute for the Defense of Competition and Protection of Intellectual Property) -the government agency in charge of intellectual property protection-, thus leaving without effect previous Rule Nº 001-2003/TRI-INDECOPI and its amendments.
As to the application scope of this new rule, the situation is similar since it regulates the notification of administrative acts and other notices such as subpoenas, summons, information requests or document requests but this rule will be also applicable to public entities when they are parties in an administrative proceeding (the prior system excluded public entities even if they were a party in the proceedings). Those acts not issued in the prosecution of administrative proceedings, such as letters or official letters addressed to third parties or public or private entities, with the purpose of obtaining information or furnishing the information requested, are still excluded from the system of notifications.
The same ways of notification are maintained (personal and by publication) but, unlike the previous legislation which established that as an exception the interested parties could request to be notified through means that allow proving for certain the acknowledgement of receipt and the recipient thereof (fax, office box, inter alia), now Indecopi will have the legal authority to additionally resort to any of the mentioned ways without altering the imposed priority order. Sending notifications to an electronic address will also be allowed provided the interested party expressly authorizes it and once Indecopi implements the electronic notification system which is in progress, in which case the priority order aforementioned is not applicable.
With respect to the personal notification, the new rule establishes the minimum information that must be provided in case the person that is in the domicile refuses to receive the notification or to state his/her identity. Thus, a certificate must be left under the door, the same that must indicate: (i) addressee of the notification; (ii) identification of the respective proceeding –file number-; (iii) act which is matter of the notification – decision number-; (iv) indication relating to the refusal of receiving the notification or stating the identity; (v) address visited in person by the process server; (vi) hour and date in which the notification was delivered; (vii) name, signature and number of national identity document of the process server; (viii) indication that notification was left under the door; and (ix) the characteristics of the place where the notification was delivered must be annotated in the certificate and, if possible, photograph of the visited domicile must be attached thereto.
It is stated, as something new, that in case there is no address of the addressee to whom the notification is directed, or if after verification it results that the registered address does not exist, Indecopi must send the notification to the address indicated on the National Identity Document of the interested party in the case of individuals, and to the address indicated in the Single Taxpayer’s Registration (RUC) in the case of legal entities. If the domicile of the legal entity registered in the data base of the Single Taxpayer’s Registration has the status of “nonexistent” or “not found”, service of process must be made by publication. However, this new provision fails to include legal entities having the status of “cancel on the tax office’s initiative”, that is, that they have stopped doing business or closed their operations.
If it is a legal entity incorporated abroad, notification must be sent to the address of its branch office registered in said county or to the address of its duly evidenced representative. For Indecopi this can be a practical solution but from a legal viewpoint this can be questionable as it will have to be verified if the granted power-of-attorney authorizes the representative to receive notifications, such as a notification of complaint or a notification of petition for cancellation or nullity of a registration.
Furthermore, it is established that if the process server does not have direct access to the domicile of the interested party, since it is placed in a condominium, building or other property where there are other domiciles (a house, an apartment or an office), the process server must stick a notice on the access door corresponding to the mentioned places, indicating the new date on which the notification will be delivered and copy of this notice must be stuck on the respective case file. If notification cannot be delivered in a second visit, service of process will be made by publication.
Moreover, as to service of process by publication, this can be made by two ways: main and subsidiary. Main service by publication will be made in the case of those administrative acts in which an indefinite number of parties which have not entered an appearance in the proceeding and without known address may be interested. Subsidiary service by publication will be made when it is not possible to deliver the notification by other established ways, particularly when the domicile of the interested party is ignored despite the efforts made to find it.
Likewise, this new rule establishes that in case of defects of the notification process for having omitted any formality or requirement, said notification will have legal effects provided: (i) the addressee expressly declares having received it; (ii) it has been recorded in the case file the performance of procedural acts by the interested party that allow reasonably assuming that said party had opportune knowledge of the content and scope of the notification; and/or (iii) the interested party files any proper remedy in this regard.
Finally, it establishes that the term for the delivery of notifications will be the term stipulated by the law that is applicable to Indecopi’s respective competences and if it has not been specified, the delivery of the notification will be made within a term of ten business days at the most, counted from the issuance of the act.