Trademarks and racism. The society we want to be.

The death of George Floyd occurred in Minneapolis, Minnesota last month, has flared up the social mobilization against racism and has placed under the scrutiny of the public eye, the hate speech. The trademark field, including the Peruvian one, has not been oblivious to such mobilization. 

Confirming its identification with diversity and its opposition to racism, the Peruvian company engaged in massive consumption ALICORP, informed last June that it will change the name and image of its known trademark NEGRITA, developed in Peru more than sixty (60) years ago.

It is not ruled out that similar measures be taken by the local business sector.

Decision 486 of the Andean Community –Common Regime on Industrial Property, of direct application, establishes in its Article 135 that: “Signs may not be registered as trademarks when they: […] p) are contrary to law, morality, public order or good manners.”

In the past, this provision has supported in Peru the denial of trademark registrations basically in cases in which the applied-for signs showed sexual conducts, included rude words or promoted drug consumption. Some trademark examples which registration was rejected on the basis of Article 135 p) are reproduced below:

CRACK (wordmark)

DVOLK MEMES.PE FUCK YEAH MORON LOL (wordmark)

The application of Article 135 p) cited above is within the competence of the Office of Distinctive Signs, the Commission of Distinctive Signs and the Court Specialized in Intellectual Property, all of them, divisions of INDECOPI responsible for deciding on applications for trademark registration in the first and second administrative instances. In the contentious administrative proceedings, the evaluation of the legality of the application of the aforesaid rule corresponds to the Judiciary.

Consequently, INDECOPI results a key actor to contribute in the tracing of the delicate frontier between the expression of the individual liberties and the trademarks contrary to morality and, in this line, to put a curb on immoral symbols in the light of our time. Distinctive signs that promote racial stereotypes are not exempted from this control.

On the way to the bicentenary of our Republic, it also concerns INDECOPI to wonder: what kind of society are we now and what kind of society we want to be.