Venezuela: Rejoining Andean Community Could be Seismic for Brand Owners

This is an Insight article, written by a selected partner as part of WTR's co-published content. Read more on Insight


In summary

This article reviews the most important aspects of the protection of intangible assets in Venezuela, from the most relevant current events to what to expect during 2023 in respect of regulatory matters.


Discussion points

  • National overview
  • Current regulatory framework relating to intellectual property
  • Regulatory agency: National Intellectual Property Office (SAPI)
  • General provisions for the protection of a trademark in Venezuela
  • Expectations for 2023: what to hope for

Referenced in this article

  • Organic Law of Special Economic Zones
  • 2000 Constitution of the Bolivarian Republic of Venezuela

General overview

During the past year, Venezuela has shown improvement in its macroeconomic policies and an openness and interest in foreign investment. Although the political operators have not changed, there have been some differences in practice.

The Organic Law of Special Economic Zones[1] was enacted on 20 July 2022, with the objective of promoting national and foreign economic activity, diversifying and increasing exports, promoting the development of competitive advantages and creating new sources of employment (article 1). Despite some shortcomings, the law recognises the private sector as the main actor for the country’s economic development, which is a significant change, particularly after more than 20 years of attacks on private enterprise.

In the same vein, a Draft Organic Law for the Protection of Socioeconomic Rights has been prepared, which will replace the current Fair Pricing Law. The latter imposes excessive difficulties for the profitability and operation of the private sector, as well as severe administrative and criminal sanctions, which have been a significant limitation for foreign investment. The formal repeal and enactment of a new regulatory framework are expected, which will send out a positive and important message for private investment.

Current IP regulatory framework

The 2000 Constitution of the Bolivarian Republic of Venezuela[2] includes a provision for the protection of intangible goods through intellectual property, which falls under the scope of cultural rights, thereby granting it the status of a human right. The protection of intellectual property is regulated in Venezuela by the Industrial Property Law of 1955, the Copyright Law of 1993 and their corresponding regulations.

As a member of the World Trade Organization, Venezuela is subject to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In addition, Venezuela has signed several international treaties in respect of intellectual property, including the following:

  • Convention Establishing the World Intellectual Property Organization;
  • Paris Convention for the Protection of Industrial Property;
  • Berne Convention for the Protection of Literary and Artistic Works;
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
  • Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms; and
  • Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Regulatory agency

The National Intellectual Property Office (SAPI), created in March 1997, is currently attached to the Ministry of National Commerce. SAPI has several directorates, including the Industrial Property Registry and the Copyright Division, both of which are coordinated by the General Directorate of Intellectual Property.

In matters relating to industrial property, all SAPI’s acts are notified through gazettes, which are published approximately every 45 to 60 days. The publication date establishes the start of the counting of the procedural lapses associated with any procedure.

General provisions for protection of trademarks

Venezuela applies the general principle of ‘first in time, first in right’, so the first to file an application with SAPI will be given preference for the registration of a trademark. The main exceptions to this principle are the international priority under the provisions of the Paris Convention and well-known marks.

Currently, the Nice International Classification of Goods and Services is used. Additionally, there is a special class for trade names and another for commercial slogans.

The process of registration of a trademark is fairly consistent with international standards, beginning with the filing of the application, continuing with a first examination to verify compliance with formalities and publication for opposition purposes, followed by the examination of registrability and, finally, the notification of the grant or refusal of registration.

There is an additional element, however, in the current procedure as regulated by the Industrial Property Law of 1955, which stipulates that a publication must be made in a digital press outlet administered by SAPI, prior to publication in the Industrial Property Bulletin, which opens the period for the submission of objections and oppositions.

To act on behalf of a third party, an application for registration or any other action within a proceeding must be submitted along with a power of attorney, granted before a notary public and legalised through an apostille or before a Venezuelan consulate. If registration is granted in a language other than Spanish, it must be translated by a Venezuelan sworn public translator.

Among the grounds for rejection are absolute aspects such as descriptiveness, being generic or the use of official symbols, or relative aspects such as the likelihood of confusion. Venezuela recognises the concept of the well-known trademark from case law and decisions made by SAPI, since there are no express provisions on notoriety in the Industrial Property Law. Additionally, as Venezuela is a member of the Paris Convention, the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks of the World Intellectual Property Organization is also applicable.

The Industrial Property Law does not have any specific regulation for appellations of origin. However, in recent resolutions, SAPI has granted protection under the figure of geographical indications, all in accordance with the provisions of the TRIPS Agreement.

Expectations and hopes for 2023

Although a draft Industrial Property Law has been submitted to the National Assembly, it is unclear whether it will be discussed during the next legislative period; however, it is still possible that it will be approved during 2023.

With the re-establishment of commercial and diplomatic relations between Colombia and Venezuela, approaches have also been initiated for the latter’s return to the Andean Community system. In fact, in a presidential declaration of 4 November 2022, it was announced that ‘[W]e are determined to join the Andean Community of Nations’. If this were to materialise, one of its effects would be the application of the legal framework of the integration system, including Decision 351 Establishing the Common Regime on Copyright and Neighboring Rights and Decision 486 Establishing the Common Industrial Property Regime and its amendments, Decisions 632 and 689.

Moreover, Andean Community rules on matters that currently lack any internal regulation in Venezuela would also be applicable, such as Decisions 345 and 366 Establishing the Common Regime on the Protection of the Rights of Breeders of New Plant Varieties; Decisions 391, 423 and 448 Establishing the Common Regime on Access to Genetic Resources; and Decision 876 for a Common Regime on National Trademarks.

Finally, the Constitution of 2000 establishes the direct and preferential application of the rules derived from integration agreements. Therefore, once the formalities for Venezuela’s reintegration into the Andean Community are fulfilled, the aforementioned regulations should enter into force immediately.


Footnotes

[1] G.O. No. 6.710 (20 July 2022), Ley Orgánica de las Zonas Económicas Especiales (https://observatorio.gob.ve/wp-content/uploads/2022/07/Ley-organica-de-las-zonas<-economicas-especiales.pdf).

[2] República Bolivariana de Venezuela (24 March 2000), Constitución Nacional de la República Bolivariana de Venezuela (https://www.ariae.org/sites/default/files/2017-03/01-CONSTITUCI%C3%93N-NACIONAL%20.pdf).

Unlock unlimited access to all WTR content