Trademark Caselaw | Peru | KOMBUCHA Not Registrable for Beverages

INDECOPI, Peru’s intellectual property authority, recently confirmed its refusal of a trademark application for KOMBUCHA in class 33, filed by Fabricio M. Durand.

In its January 23 decision, INDECOPI’S Intellectual Property Court confirmed the decision from the trademarks office that admitted an opposition filed by Redbull Gmbh, and found that KOMBUCHA, known to be a tea-based fermented beverage, made reference to certain characteristics of the goods it was intended to identify, since consumers would assume they are made based on kombucha, and thus deemed it descriptive, and refused its registration.

The court mentioned the existence of different Kombucha products being sold in Peru, which further justified the refusal of a trademark application thereof.

Following the applicant’s appeal, the court confirmed the refusal and, in doing so, confirmed the initial finding about KOMBUCHA being descriptive, when applied to beverages included in class 33, and not subject to registration. The court further analyzed procedural aspects, as important as those to the proposed mark being descriptive, e.g. the rebuttable presumption of good faith associated with any declaration made within an administrative process.

Upon ruling on the applicant’s claim that Redbull’s had failed to produce evidence regarding its own existence and the fact that the trademarks office failed to analyze such claim, the court stated that a government agency will deem declarations and documents submitted within an administrative process to be true, unless proved otherwise. Under those circumstances, and pursuant to article IV(1.7) of Peru’s Administrative Proceedings Act, the Commission had not reason to question the existence of the opposing company.

The ruling is consistent with Peruvian caselaw on both, trademarks and administrative law.

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