Supreme Court repeals Andean legislation on industrial property

In several decisions, the Administrative Litigation Chamber of the Supreme Court had stated, without further explanation, that the Andean legislation on industrial property was no longer applicable in Venezuela. On March 17 2011 the Civil Chamber of the Supreme Court stated, in a detailed and explanatory decision, that after the expiry of the 180-day period following Venezuela's withdrawal from the Andean Sub-Regional Integration Agreement, “rights and obligations created under the Andean integration stopped in the Bolivarian Republic of Venezuela”.

The decision omitted any reference to the opinion held by the doctrine, according to which Article 153 of the Constitution provides that “rules adopted within the framework of integration agreements shall be considered an integral part of the legal system, having direct application and being preferred over domestic law”. According to this interpretation, decisions of the Andean Community are part of Venezuelan law, despite Venezuela's withdrawal. Under Article 218 of the Constitution, “laws are repealed by other laws” - therefore, the National Assembly would have to repeal the Andean Community regulations and, where appropriate, enact a replacement legislation.

Although the decision dealt specifically with the invalidity of a preliminary injunction issued under Andean Community Decision 486 on a Common Industrial Property Regime, it went further by declaring that the Andean Community provisions in this respect had absolutely no effect. The decision thus officially reinstates the Industrial Property Act 1955, which, in addition to omitting industrial inventions, utility models, integrated circuits and various types of trademarks, contradicts several provisions found in international instruments ratified by Venezuela.

Moreover, because the court ruled that the Andean Community legislation on industrial property would be inapplicable after the expiry of the 180-day period, several administrative decisions are now in a 'legal limbo', as they were issued by the Patent and Trademark Office after the expiry of the period but were based on Andean Community Decision 486.

The decision of the Civil Chamber of the Supreme Court has created few certainties, but a lot of doubts.

Ricardo Antequera Parilli, Estudio Antequera Parilli & Rodríguez, Caracas

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