Matildo Pérez, a peasant from a village community in the heights of Lima, decided one fine day to apply personally to the National Institute for the Defense of Competition and Intellectual Property of Peru (INDECOPI) for registration of the trademark "Chirimoya Cumbe."1 He filed his application and, in spite of the unusual circumstances of the case, it followed its course, like any of the 45,000 filings that INDECOPI handles every year.
His application was refused, however, owing to the fact that quite simply no exclusive rights in generic names can be granted to a single person. Since then Don Matildo has appeared again, this time with a delegation headed by the Deputy Mayor of Cumbe, seeking an appointment with the Head of the Distinctive Signs Office of INDECOPI.
On reading the power of attorney, the INDECOPI official smiled with satisfaction: the people of Cumbe, gathered together on the main square, had empowered Don Matildo Pérez to register the trademark. It seemed utterly incredible: the community had understood fully that securing registration for the mark gave them exclusive rights in the use of the Cumbe name. However, as the official told them, "Chirimoya Cumbe" is in fact an appellation of origin, not a trademark. To be more precise, the second is an appellation of Peruvian origin, because the valley of Cumbe is a geographical area that gives certain distinctive properties to the Chirimoya. At the outset they were delighted with this idea, and went back to their village.
The following week, however, they were once again at the office: "We do not want an appellation of origin; our village does not want one because it is said that with appellations of origin the State is the owner, and it is the State that authorizes use, and that is why we are saying no. We do not want the State to be the owner of the `Cumbe' name, because we have been working with it for a great many years. Since the time of our grandparents all have been investing a great deal of effort, and we are not prepared to ask you for permission to use our `Cumbe' trademark." After an arduous and creative search for solutions, it was suggested that what should be registered was a "collective" mark, the owners of which would be the people of Cumbe and which would be used according to rules that they themselves would lay down.
Today the name "Chirimoya Cumbe" has its own characteristic logo and, more importantly, is registered in the name of the village of Cumbe (in Class 31 of the International Classification), and the latter are working to gain a competitive edge over their rivals in Lima's Wholesale Fruit Market. In that way, thanks to the persistence and drive of Don Matildo, and his ability to make use of the intellectual property protection system, his village has increased the value of its individuality, its knowledge and its tradition of excellence.
The owner of the collective mark registration is the village of Santo Toribio de Cumbe, composed of 106 residents duly recorded in the population census. The rules for the use of the mark relate to the proper handling of the Chirimoya product, which is produced in the valley of the same name (Cumbe), the climatic conditions of which give the product its special characteristics.
In specifying that only the members of a community - or someone else with due authorization - may register its name as a trademark, the recent Industrial Property Law not only protects the native communities and gives them exclusive competence for the exploitation of goods bearing their name, but also marks out a framework for legislation on the protection of their knowledge.
Successful experiments with collective marks have not only enabled smaller businesses to reduce their costs, but also made them more competitive on the market. Through this machinery, SMEs have protected and distinguished their goods for less cost, which in turn has given them the benefits of economies of scale and also increased their clients' faith in them.
Given that the cost of investing in the development of a mark, and also that of the marketing and advertising campaigns, can be high for an SME, collective marks have become a cost-saving device which at the same time serves to distinguish products originating in Peru, and emphasizes characteristics specific to the areas in which the products are made.
Part of this strategy consists in developing a common concept and image which identifies the SMEs or the products made by them, and in concluding "quality pacts" which have to be implemented by means of the rules on the use of the marks.
* We thank Luis Alonso Garcia Muñoz-Najar, President of the Intellectual Property Chamber of the Court of the National Institute for the Defense of Competition and Intellectual Property (INDECOPI), Lima, Peru, for the compilation of this case study.