BOLIVIA, COLOMBIA, ECUADOR AND PERU
PREFERENTIAL RIGHTS DERIVED FROM TRADEMARK NON-USE CANCELLATION ACTIONS
Prejudicial Interpretation 436 – IP -2015 of the Andean Community Court of Justice sets the time limits of the preferential right to registration when a non-use cancellation is obtained, and establishes criteria for the evaluating said use.
The Court established that preferential rights go back to the date when the cancellation was filed. Therefore, it is from that day that the preferential right is constituted and a trademark may prevail over other identical or similar applications.
On the other hand, in regards to the criteria for assessing the use of a trademark, the Court restated that the use will depend on the nature of the products or services since it is not the same to distinguish massive consumer products than selective consumption goods, since for example the sales of the latter are sporadic.
The Court added that the size of the owner company must also be taken into account, considering that a small business can justify the effective use of its trademark with smaller sales than those of a larger company.