It is not uncommon that we be inquired by clients on whether specific terms in foreign languages are descriptive in Peru.
Case law has set a standard dealing with which foreign terms are to be considered descriptive in this country. We briefly describe below the standard applicable to terms in foreign languages.
Descriptive terms in foreign languages will be treated as Spanish terms, depending basically on the degree of knowledge of their meaning or the need for their use by competitors in the market.
The Administrative Court has identified three scenarios where descriptive terms in foreign languages will be treated as Spanish terms:
- Terms which have become part of the local common language, to describe a specific product, service or activity.
- Terms which are not part of the local language but are understood due to their phonetic and graphic similarity with their Spanish translation.
- Terms used descriptively in their country of origin, in products which are the object of frequent trade with Peru. Via the frequent use of the term, the pertinent sector of the public may get to understand its meaning.
In summary, a foreign term may be considered descriptive in Peru in the following situations: if the term consists of a foreign language word which has become part of the local language, if the term is understood by the public, or if its use is necessary in imports/exports trade.
In case the meaning of a term in a foreign language is unknown to the public but there is sufficient assurance that in the future, there will be the need to use said denomination descriptively in advertising, distribution of products or rendering of services, the term is to be allowed to be freely used. The analysis of the case must be rigorous, and information should be rendered about commercial operations undertaken by Peru and the country where such foreign denomination has origin.