International Trademark Exhaustion and the Fragmentation of the Import Channel: The Peruvian Case; [Esgotamento internacional da marca e fragmentação do canal de importação: o caso peruano]

Aguirre-Lanegra A.J.; Seminario-Hurtado N. · Revista Iberoamericana de la Propiedad Intelectual (2026) · DOI: 10.26422/ripi.2026.2400.lan

Resumen

Trademark exhaustion deprives the proprietor of the right to oppose the subsequent circulation of an item placed on the market with the proprietor’s consent, while the registration remains in force as to all other items. Andean law recognizes that effect regardless of the country of first sale. Therefore, an original product purchased abroad lawfully enters Peru outside the proprietor’s official network, and whoever brings it in does not infringe the trademark, even if an authorized distributor exists and it arrives at a lower price. That lawfulness, however, is subject to the requirements formulated by the Court of Justice of the Andean Community, which the Peruvian authority applies and which must be established by whoever invokes exhaustion. Such requirements presuppose three conditions: an importer who files a customs declaration, an inspectable shipment, and documentation of the purchase. In this context, trade is changing: Peru has added a port terminal that devotes nearly half its traffic to goods not destined for its market, and many purchases arrive as individual shipments from foreign platforms. The article examines what happens when those conditions cease to be met, through doctrinal analysis, comparison with European and U.S. approaches, and port statistics. The requirements lack a stable formulation, since three successive rulings state them differently, and the Court tightens them by turning an illustrative clause into a strict condition without justifying that move. Moreover, when a purchase breaks down into individual shipments for personal use, they are not breached because they never apply: one who acquires without trading does not perform the acts the proprietor may prohibit. In conclusion, the shortcoming stems from a lack of method and not from gaps in the legislation; three interpretive criteria are proposed, and two issues are reserved to the legislature. © (2026), (Austral University). All rights reserved.

Instituciones: Universidad Científica del Sur; Universidad Tecnológica del Perú