RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/VEN/1
IP/Q2/VEN/1IP/Q3/VEN/1
IP/Q4/VEN/1
31 August  2001
(01-4185)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
VENEZUELA1
This document reproduces the introductory statement made by the Venezuelan delegation, the
questions addressed to it and the corresponding replies for the purposes of the review of legislation
undertaken at the Council meeting held from 2 to 5 April 2001.2
_______________
I. INTRODUCTORY STATEMENT
A. GENERAL COUNCIL
Venezuela, through a combination of internati onal, regional and national provisions, provides
adequate and effective protection for intellectual property rights.  This review of legislation gives us
the opportunity to reiterate our firm resolve to c ontinue working actively for the development of rules
and infrastructures that will increasingly serve to guarantee the recognition, protection and observance
of those rights.
In this connection, not only have we brought our legislation into line with the requirements of
the TRIPS Agreement, but we are committed to the task of further developing a culture of observance
and enforcement of intellectual property rights at domestic and international level.
Thus, in the recent past, Venezuela has introduced adjustments to subregional and national
legislation and has promoted ongoing efforts at supplementary legal reform, in the context of a far-
reaching constitutional, political and social transformation, which includes such positive aspects as
the new Constitution which strengthens the recognition and adequate protection rightfully accorded to
intellectual property rights.
Indeed, Article 98 of the 1999 Bolivarian Constitution of Venezuela includes a provision
guaranteeing freedom of cultural, scientific, technological and humanistic creation, and also
guaranteeing the recognition and protection of intellectual property by the State.
                                                     
1 For further information on the laws and regulations relating to the subject-matter of the review,
notified by Venezuela under Article 63.2 of the Agreement, refer to documents IP/N/1/VEN/1, IP/N/1/VEN/C/1to 4, IP/N/1/VEN/I/1 to 4, IP/N/1/VEN/P/1 and 2 and IP/N/6/VEN/1.
2 The minutes of the meeting were circulated in document IP/C/M/30.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Under Venezuela's legal system, intellectual property rights are protected not only by the
Constitution, which is the basic text, but by the Community decisions adopted within the Commission
of the Cartagena Agreement, other international treaties to which the Republic is party and the
national laws and regulations governing aspects supplementary to the legislation referred to.
As far as the Community legal system is concerned, the main decisions of the Andean
Community relating to intellectual property are the following:
- Decision 486, which entered into force on 1 December 2000, on the "Common
Industrial Property Regime";
- Decision 351 on the "Common Regime for Copyright and Related Rights";
- Decision 345 on the "Common Regime for the Protection of Plant Breeders' Rights";
and
- Decision 391 on the "Common Regime on Access to Genetic Resources".
All these Decisions have been notified by Venezuela to the WTO.
In addition, Venezuela is a party to other international treaties governing intellectual property,
such as the International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations ("Rome Convention"), and the 1971 Paris Revision of the Universal
Copyright Convention, as well as the Paris Conv ention for the Protection of Industrial Property.
The following are noteworthy examples of national intellectual property legislation:- The 1955 Law on Industrial Property;- the 1993 Law on Copyright;- the Regulation to Decision 351 of the Andean Community;
- the Regulation to Decision 345 on Plant Breeders' Rights;  and
- the Law on Biological Diversity of 2000.It should be emphasized that, within the process of transformation, updating, modernization
and legislative reform, Venezuela has attained high levels of protection for copyright, this being one
of the areas of intellectual property in which Venezuela's standards of protection are among the most
advanced.
Particular attention should also be drawn to the strenuous efforts deployed in conjunction with
the other Andean countries, in the context of a deliberate process of revision of Decision 344,
resulting in the adoption of Decision 486 on the "Common Industrial Property Regime", which
completes the task of bringing Andean industrial property legislation into line with the requirements
of the TRIPS Agreement, while at the same time refining some of the legal formulas on the subject.
A supplement to this statement, to be made available to all Members in writing, contains
details concerning the most significant features of the different areas of intellectual property in
Venezuela, which will not be touched upon in this oral presentation.IP/Q/VEN/1, IP/Q2/VEN/1,
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Venezuela is committed to promoting innovation and the creation of intangible goods of
economic and commercial value which contribute to strengthening domestic industry and to the
development and optimization of small and medium-sized enterprises (SMEs).  To that end, in
addition to the progress and achievements in the area of protection and enforcement of intellectualproperty rights re-emphasized above, specific efforts have been made to promote intellectual property,
in particular through massive campaigns to disseminate the rules on appellations of origin, an
institution which serves to identify and enhance products with high domestic value-added, the
promotion of national products and trade management.
Similarly, inter-institutional projects have been initiated, involvin g the recognition and
adequate protection of the collective knowledge of indigenous, rural and local peoples.  However, weare aware that the protection of such knowledge in the national context is not sufficient, and we
therefore consider that the international recogniti on of such knowledge, as a key element in the
protection of intellectual property, will provide the necessary safeguards for the rights of beneficiaries
and make it possible for them legally to assert those rights in other countries.
For those communities legal recognition represents a legitimate interest and an expectation no
less compelling than that which at one time justified recognition of new items of intellectual property
such as plant varieties, layout-designs of integrated circuits, biological material, software and
databases.
The international recognition of traditional knowledge is a subject of vital importance for
many developing and developed countries, and in particular for Venezuela.  Accordingly, we have
high hopes for the next meeting of the WIPO Intergovernmental Committee, on intellectual property,
genetic resources, traditional knowledge and folklore, which we expect to produce a frank and fruitful
discussion of these topics.
We should like to thank Members for the interest they have shown in the review of
Venezuela's legislation.  In particular, we appreciate the questions asked by Canada, the European
Union, Japan, Switzerland and the United States.  The replies to their many interesting questions and
the replies to the checklist of issues on enfo rcement (document IP/C/5) were submitted to the
Secretariat for circulation to all Members.
We hope that those replies satisfy the concerns of the Members which posed questions and we
remain at the disposal of those and any other Members to respond to additional requests for
clarification.
B. 
COPYRIGHT
Databases and computer programs are protected as literary works, and a rental right for such
works is under consideration.  The term of protection for works is 60 years from the death of the
author.
C. TRADEMARKS
Trademark protection is available for signs which identify products and services.
Consideration is being given to the protection of se condary meaning with respect to signs that are not
intrinsically distinctive but which acquire distinctiveness through their use.  Compulsory licensing is
not applied to marks.  Well-known marks receive special protection.  The term of protection for a
mark is ten years and registration is renewed automatically, without it being necessary to submitevidence of use.IP/Q/VEN/1, IP/Q2/VEN/1,
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D. GEOGRAPHICAL INDICATIONS
Geographical indications are protected by means of indications of source and appellations of
origin.  The protection of geographical indications for wines and spirits is reinforced by prohibiting
their non-authorized use, irrespective of whether they are confusing to the public.
E. INDUSTRIAL DESIGNS
Protection is afforded to textile designs in the form of industrial designs.  The term of
protection of an industrial design is ten years.
F. PATENTS
As required by the TRIPS Agreement, patents are available for any inventions, whether
products or processes, in all fields of technology, including pharmaceuticals, which meet the criteria
of patentability.  Patent protection is available for micro-organisms, pending the adoption of specific
measures as a result of the ongoing review of Article 27.3(b) of the TRIPS Agreement.  Compulsory
licensing is envisaged, albeit subject to the requirements laid down in the TRIPS Agreement.  The
burden of proof has been reversed in respect of process patents.  The term of protection of the patentis 20 years from the submission of the request.
G. 
LAYOUT -DESIGNS OF INTEGRATED CIRCUITS
Protection for layout-designs of integrated circuits is afforded in the field of industrial
property through the adoption of definitions and the establishment of requirements for protection andthe rights conferred by registration.
H. 
UNDISCLOSED INFORMATION
The protection of business secrets lasts as long as the conditions which gave rise to such
protection.  Test data submitted to governmental authorities for the processing of marketingauthorizations for agricultural chemical products and pharmaceutical products are protected against
unfair commercial use.
I. 
ENFORCEMENT
The holders of intellectual property rights may avail themselves of administrative, civil and
criminal procedures to assert their rights.  Apart from monetary fines, the penalties may entail
imprisonment.  There is a special unit (COMANPI) for the prevention and repression of intellectualproperty offences, which operates under an institutional agreement between public and private
institutions and has jurisdiction throughout the national territory.  The aim is to coordinate efforts in
the fight against piracy, counterfeiting and forgery in Venezuela, with a view to establishing a joint
strategy both for purposes of control and to promote a culture of respect for intellectual property.  The
"Guardia Nacional" (National Guard) is involved in the above-mentioned prevention and enforcement
schemes.
The State prosecution authority employs special prosecutors with national jurisdiction in the
field of intellectual property.  The administrative authorities are responsible for inspections and
notifications to prevent infringements of intellectual property rights, which may give rise to theimposition of penalties (fines).IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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An administrative mechanism of conciliation and mediation is available for the resolution of
disputes over intellectual property rights, and this benefits right holders and involves considerable
savings in terms of investment and time.  This mechanism has been operating with optimum results.
II. REPLIES TO THE QUESTIONS POSED BY CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS
Agreement) have been implemented.
Section 1:  General obligations
- Article 41
The principles and guarantees provided in Article 41 of the TRIPS Agreement are covered by
Article 26 of the Constitution of the Bolivarian Republic of Venezuela and include the following:
effective protection of individual rights, as well as justice that is free, accessible, impartial,
appropriate, transparent, autonomous, independent, responsible, fair and expeditious, with no unduedelays, superfluous formalities or reviews.
In addition, Article 49.1 makes it possible to allow any person convicted in administrative or
judicial procedures to appeal against the ruling.
Section 2:  Civil and administrative procedures and remedies
- Article 42:  Fair and equitable procedures
The constitutional provisions in Venezuela's legal system give any person the right to be
notified of the charges for which he is being investigated, to have access to the evidence and to be
given sufficient time and means to defend himself, as provided in Article 49.1.
Venezuela's Constitution also recognizes the righ t to be heard in any proceedings, with due
guarantees and within the reasonable time-limit legally fixed by a competent, independent and
impartial court previously established (Article 49.3 of the National Constitution of the Bolivarian
Republic of Venezuela).
Concerning whether parties can be defended by an attorney, Article 49.1 of the Constitution
of the Bolivarian Republic of Venezuela provides that defence and legal assistance are inviolable
rights at any stage or level of the investigation and proceedings.  Article 136 of the Code of Civil
Procedure gives individuals the right to act in legal proceedings either themselves or through anattorney.
- Article 43:  Evidence
Pursuant to Article 436 of the Code of Civil Procedure, any party seeking to utilize a
document which it alleges to be in the possession of the opposing party, may request its production.
The request for production shall be accompanied by a copy of the document or, failing that, by a
statement of the facts known to the requesting party concerning the content of the document and
evidence showing that there is at least a serious pr esumption that the document is or has been in the
possession of the opposing party.  The court shall require the opposing party to produce or hand overthe document within a specified period or face a penalty.  If the document is not produced within the
specified time-limit and no evidence is provided to show that it is not in the possession of the
opposing party, the text of the document as it appears in the copy presented by the requesting partyIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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shall be presumed to be accurate or, in its absen ce, the information provided by the requesting party
concerning the content of the document shall be deemed to be correct.
This type of evidence can be used in both criminal and civil proceedings in Venezuela, where
the principle of freedom of evidence permits the use of any evidential means provided for in any
legislative text.
With regard to the protection of confidential information , it should be noted that,  in criminal
proceedings, all investigative acts are restricted as far as third parties are concerned, so that only
parties directly involved in the case, together with  the judicial authorities and the Public Prosecutor's
Office, have access to the records of the proceedings and consequently to the evidence furnished.Officials involved in the investigation and person s who, for any reason, have knowledge of the action
taken, thus have a duty of confidentiality (Article 313 of the Basic Code of Criminal Procedure).
The principle of public information governs civil proceedings;  accordingly, all the records of
proceedings are public.  The sole exception to this principle is where the court determines otherwisefor reasons of public morality, depending on the nature of the case (Article 24 of the Code of Civil
Procedure).
The principle of freedom of evidence applies in administrative procedures and allows the use
of any type of evidence specified in any legislative text (Article 58 of the Basic Law onAdministrative Procedures).  Consequently, the judicial authorities may order a party to proceedings
to furnish the evidence within its control, at the request of the opposing party, by means of the
production of documents, which is explained elsewhere in the replies to the questionnaire.
In an administrative procedure, some or all of the documents in the administrative file may be
declared confidential by means of a reasoned decision (Article 59 of the Basic Law on Administrative
Procedures).
- Article 44:  Injunctions
(i) Copyright
The owner of any exploitation rights in any work, product or production protected by
copyright may request the court to declare his rights and prohibit others from infringing them.  In
order to give effect to the prohibition, the court shall impose a fine if an infringement should occur
(Article 109 of the Law on Copyright).
The owner of any exploitation rights in any work, product or production protected by
copyright may request the court to order the destruction or withdrawal of originals or copies
unlawfully reproduced and of the equipment used for their reproduction (Article 110 of the Law on
Copyright).
For the purposes of the procedures referred to in the preceding paragraphs, the court may
order judicial inspections and expert studies, as well as any other type of evidence provided for in the
Code of Civil Procedure (Article 111 of the Law on Copyright).
At the request of the party concerned, the court may order that the text of the ruling be
published, at the expense of the losing party, in one or more newspapers specified by the court
(Article 113 of the Law on Copyright).IP/Q/VEN/1, IP/Q2/VEN/1,
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The competent national authority (the court) may order the permanent removal from channels
of commerce of the copies constituting the infringement of rights (subparagraph (c) of Article 57 of
Decision 351 of the Commission of the Cartagena Agreement - Common Regime for Copyright and
Related Rights).
In criminal proceedings, the competent courts may impose a sentence of imprisonment for
six (6) months to four (4) years on any person who commits any of the offences defined in the Law on
Copyright (Title VII of the Law).
(ii) Industrial property
The competent court may cancel a patent if it was issued to the detriment of third parties with
a better right (subparagraph (a) of Article 17 and Article 66 of the Industrial Property Law).
The competent court may cancel the registration of a mark if it was registered to the detriment
of third parties with a better right or where, after doubts have been raised about the mark's validity, aruling has declared that it should not have been granted (subparagraph (c) of Article 36 and Article 84
of the Industrial Property Law).
At the request of the person affected, the competent national authority (the court) may order
the transfer of a pending application or of a right granted in respect of a patent or the registration of anindustrial design, or it may order that the person con cerned be recognized as joint applicant or joint
owner of a right where a patent or an industrial design registration has been requested or obtained by a
person who has no right to it.  Likewise, where the registration of a mark has been applied for or
obtained to the detriment of another person possessing the same right, the person affected may claim
that right before the competent national authority, requesting recognition as joint applicant or joint
owner of the right in question (Article 237 of Decision 486 of the Commission of the Andean
Community-Common Industrial Property Regime).
The competent national authority may order the cessation of the acts constituting the
infringement;  withdrawal from co mmercial channels of the goods resulting from the infringement;  a
ban on the import or export of the goods;  the award of ownership of the goods;  adoption of the
measures necessary to prevent the continuation or recurrence of the infringement, includingdestruction of the goods or the temporary or permanent closure of establishment of the defendant  or
accused;  publication of the coercive judgement and its notification to interested parties at the expense
of the infringer (Article 241 of Decision 486 of the Commission of the Andean Community -
Common Industrial Property Regime).
In criminal cases, the competent courts may impose a sentence of imprisonment of one (1) to
twelve (12 months) on any person who commits any of the offences specified in Section II,
Chapter XII, of the Industrial Property Law.
- Article 45:  Damages
Venezuela's ordinary law lays down the princi ple that "Any person who intentionally, by
negligence or imprudence, causes damage to another person shall be obliged to provide
compensation" (Article 1185 of the Civil Code).  This includes any situation where damage has been
proven, in which case the competent court shall issue a coercive judgement ordering the payment of asum of money for damages, irrespective of the subject matter of the case.  The owner of an
intellectual property right is also covered by this principle.IP/Q/VEN/1, IP/Q2/VEN/1,
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Venezuela's judicial system contains several provisions on the costs of proceedings and
attorneys' fees, which Venezuelan legislation terms "court costs".  These include the costs incurred by
each party in bringing the case to court and the fees paid to attorneys, experts and other professionals
involved in the proceedings.  According to these provisions, as a general principle, the court will orderthe losing party to pay the court costs (Articles 274 to 287 of the Code of Civil Procedure).
There are nevertheless some special provisions:(i) CopyrightThe competent national authority may order payment, to the owner of the infringed right, of
adequate compensation or indemnification for injury  sustained as a result of the infringement and
order the offender to bear the cost of the proceedi ngs instituted by the owner of the infringed right
(subparagraphs (a) and (b) of Article 57 of Decision 351 of the Commission of the Cartagena
Agreement - Common Regime or Copyright and Related Rights).
(ii) Industrial property
Article 239 of Decision 486 provides that the owner of a patent may take legal action for
damages for unauthorized use of the invention or utility model during the period between the date
when it becomes public knowledge and the relevant application may be consulted and the date whenthe patent is granted.
The competent national authority may award damages (subparagraph (b) of Article 241 of
Decision 486 of the Commission of the Cartagen a Agreement - Common Industrial Property Regime).
For the purpose of calculating damages, the following criteria laid down in Article 243 of theCommon Industrial Property Regime must be used:  the actual harm and loss of revenue suffered by
the right holder as a result of the infringement;  th e amount of the profits earned by the infringer as a
result of the acts of infringement;  or, taking into account the market value of the infringed right and
such contractual licences as may have already been granted, the price that the infringer would have
paid for a contractual licence.
- Article 46:  Other remedies
Courts may order the withdrawal from commercial channels of goods that infringe intellectual
property rights and their destruction, either as a provisional measure ordered by a court or as a penalty
under a coercive judgement.  For example:
As regards border measures, the competent intellectual property body may request the
customs authority, by means of a reasoned decision, to prevent the customs clearance of goods at any
time, provided that sufficient security is furnished to protect the right holder if there is any
infringement, the amount being fixed by the competent body.
The customs authorities shall notify the owne r, importer or consignee that the goods in
question have been detained (Article 87 of the Basic Customs Law).
Community Decision 486 (Common Industrial Pr operty Regime), under Title XV (Actions
for Infringement of Rights), Chapter III (Border Measures), Articles 250 to 255, also provides forsuch a procedure.
With regard to industrial property, Article 105 of the Law specifies that:IP/Q/VEN/1, IP/Q2/VEN/1,
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"Any coercive judgement concerning an industrial property offence shall order the destruction
of the elements that had been used or prepared  in order to commit the offence, as well as the
objects resulting from the offence."
The Law on Copyright (Article 110) provides for action or claims for the purpose of obtaining
the destruction or withdrawal of unlawfully reproduced copies and of the equipment used for the
unlawful reproduction.
The judicial ruling must allow or disallow the withdrawal or destruction, but the equipment
used for the reproduction may not be destroyed if it can be used for the reproduction or
communication of other material (Article 110).
In exceptional cases, the unauthorized copy of a work, performance or production, or the
equipment used for the offence, may have special artistic or scientific merit, in which case the court
will not order its destruction and is authorized to order ex officio that it be handed over to a public
museum.  Action for removal and destruction always leaves open the possibility of action for damages(Article 110 of the Law on Copyright and Article 56 of Decision 351 of the Commission of the
Cartagena Agreement - Common Regime for Copyright and Related Rights).
- Article 47:  Right of information
Article 242 of Decision 486 of the Andean Co mmunity provides that country Members may
authorize the judicial authorities, unless this would be out of proportion to the seriousness of the
infringement, to order the infringer to inform the ri ght holder of the identity of third persons involved
in the production and distribution of the infringing goods or services, and of their channels of
distribution.  This provision is consonant with Article 47 of the TRIPS Agreement.
Venezuelan law contains a constitutional guarantee to the effect that no one is obliged to
acknowledge his own guilt or that of his spouse or family members up to the fourth degree of
consanguinity or the second degree of affinity (Article 49.5 of the Constitution of the Bolivarian
Republic of Venezuela).
In the case of third persons, in criminal proceedings any declaration in this respect by a
suspect regarding another party is deemed to be a presumption and not full proof.
Nevertheless, an infringer who provides information on the acts referred to in the question has
the prerogative of making a deposition in reply to interrogatories (Article 403 of the Code of Civil
Procedure, evidence provided by deposition), which would in any event depend on the questions andthe certainty with which they were formulated.
Another way in which the infringer could be made to provide information on the
circumstances referred to in the question, although it does not involve an order imposed by a judicial
authority, is where criminal proceedings are suspended because the offences are the work oforganized crime and the accused, in this case the infringer of any intellectual property right, fully
collaborates in the investigation, furnishing e ssential information to prevent continuation of the
offence or the commission of further offences (Article 33 of the Basic Code of Criminal Procedure).
- Article 48:  Indemnification of the defendant
It is not only the plaintiff or owner of intellectual property rights who is entitled to bring an
action for damages;  it is also possible for damages to be awarded to anyone who has been a victim ofIP/Q/VEN/1, IP/Q2/VEN/1,
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the plaintiff's recklessness, so the principle laid down in Article 1185 of Venezuela's Civil Code
applies in such cases.
Where a court orders a preventive measure, the plaintiff is usually required to deposit security
in accordance with procedural legislation, as a guarantee against any injury that might be caused to
the defendant.  It is important to note that the court may ask the plaintiff to deposit sufficient security
before ordering a precautionary measure (Article 247 of Decision 486 of the Andean Community).
In addition, the Constitution of the Bolivarian Republic of Venezuela recognizes the State's
obligation to indemnify victims of human rights viol ations attributable to it, including the payment of
damages (Article 30).  This is the general rule re garding the State's liability for unlawful actions,
including actions by its officials.  It is also the basis for the extra-contractual liability of the public
authorities as it allows claims for the indemnification of injury caused by their actions.
- Article 49:  Administrative procedures
The principle of freedom of evidence applies in administrative procedures and allows the use
of any type of evidence provided for in any legislative text (Article 58 of the Basic Law on
Administrative Procedures).  Consequently, it is possible for the judicial authorities to order a party to
proceedings to furnish the evidence within its control, at the request of the opposing party, by means
of the "production of documents", which is explained elsewhere in this report.
In an administrative procedure, some or all of the documents in the administrative file may be
declared confidential by means of a reasoned decision (Article 59 of the Basic Law on Administrative
Procedures).
Venezuela's legislation contains no provisions allowing an administrative body to order
measures such as the destruction of the infringing goods or the temporary or permanent closure of the
establishment.
Section 3:  Provisional measures
- Article 50
(i) CopyrightThe court may order the sequestration of anything that constitutes infringement of the right of
exploitation and the seizure of the revenue accruing to the right holder provided that evidenceconstituting a serious presumption of the right claimed is furnished (Article 111 of the Law on
Copyright).
The competent national authority may, as a precautionary measure, order the immediate
cessation of the unlawful activity;  the attachment, sequestration, impoundment or preventive seizure,as appropriate, of the copies produced in violation of rights; and the attachment, seizure,
impoundment or sequestration of the apparatus or ma terials used to commit the unlawful act (Article
56 of Decision 351 of the Commission of the Cartagena Agreement – Common Regime for
Copyright and Related Rights).
(ii) Industrial property
The following preventive measures may be ordered:  the immediate cessation of the acts
constituting the alleged infringement;  withdrawal from commercial channels of the goods resultingIP/Q/VEN/1, IP/Q2/VEN/1,
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from the alleged infringement;  suspension of the importation or exportation of the goods;  provision
of sufficient security by the alleged infringer, and temporary closure of the establishment belonging to
the defendant or the accused, where necessary to prevent the continuation or repetition of the alleged
infringement.  (Article 246 of Decision 486 of the Commission of the Andean Community – CommonIndustrial Property Regime).
The suspension of the effects of the administrative act of registering a patent or mark whose
annulment has been sought may be requested, where the law so permits or such suspension is
necessary to prevent irreparable injury or injury that it would be difficult to repair definitively, for
which purpose the court may require an appropriate guarantee (Article 136 of the Basic Law on the
Supreme Court of Justice).
As a provisional measure, the suspension of the effects of the administrative act of registering
a patent or mark may be requested before the competent court, under the constitutional guarantee for
the protection of rights, on the grounds of unconstitutionality, provided that the requirements
applicable to preventive measures are met, namely, those of colour of title and risk in delay (Article 5of the Basic Law on the Protection of Constitutional Rights and Guarantees).
In the matter of both copyright and industrial property, any type of preventive measure or
"innominate measure" may be requested provided that the requirements laid down in the law are met
(first paragraph of Article 588 of the Code of Civil Procedure).
In intellectual property cases, provisional or preventive measures may be requested before the
initiation of proceedings (only in copyright cases), in conjunction therewith or after their imitation.  A
person requesting provisional or preventive measures must provide evidence indicating a presumption
of infringement or the imminence thereof before the court may order any such measure.
Provisional measures shall be maintained until the end of the proceedings, unless the
defendant requests the court to suspend the measure against the deposit of sufficient security or
guarantee, in which case the decision shall lie with the court.
The defendant has the right to oppose the preventive measure ordered within three days
following its imposition and eight days are then give n to the parties in which to bring their case and
furnish the evidence they deem relevant.  A decision is taken by the court in a ruling that must be
given within two days followin g the expiry of the period allowed for furnishing evidence.
In order to protect the defendant, in certain circumstances the court shall order the plaintiff to
furnish security before ordering the preventive measure.
In Venezuela's administrative procedure, a provisional or preventive measure involves the
suspension of the effects of the administrative ac t that is the subject of the complaint if its
implementation could cause serious injury to the person concerned.
Section 4:  Special requirements related to border measures
- Articles 51 to 60
Without impairing the legal authority of the cust oms, which is designed to give the competent
authorities the right to act in relation to the goods re ferred to in Article 7, to authorize or prevent their
customs clearance, to exercise tax prerogatives, to determine the duty payable, to apply sanctions
where necessary, and, in general, to carry out the controls provided for in the national customs
legislation (Article 6 of the Basic Customs Law), at the request of the competent intellectual propertyIP/Q/VEN/1, IP/Q2/VEN/1,
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body, the customs authorities shall prevent the customs clearance of goods which allegedly infringe
trademark rights granted in Venezuela or derived from international agreements to which Venezuela
is party.
The competent intellectual property body may request the customs authority, by means of a
reasoned decision, to prevent the customs clearance of goods at any time, provided that sufficient
security is furnished to protect the right holder, the amount being fixed by the competent authority.
The customs authorities shall notify the owne r, importer or consignee that the goods in
question have been detained (Article 87 of the Basic Customs Law).
Community Decision 486 (Common Industrial Pr operty Regime), under Title XV (Actions
for Infringement of Rights), Chapter III (Border Measures), Articles 250 to 255, also provides for
such a procedure.
Pursuant to Article 256 of Decision 486 of the Andean Community, this regime does not
apply to small quantities of goods of a non-commercial nature contained in travellers' luggage or sent
in small consignments.
It should also be noted that the owner of a registered trademark may not prevent third parties
from engaging in trade in a product protected by registration after the owner or a third party havingthe owner's consent or with economic ties to the ow ner, has introduced the product into trade in any
country, even if the products, and the containers or packaging in direct contact with them have not
undergone any modification, alteration or deterioration (Article 158 of Decision 486 of the Andean
Community), the reason being that, as is explained in the replies to questions on enforcement in
criminal matters, this is classified as an offence under Article 338 of the Criminal Code.  In thisconnection, Venezuela recognizes parallel imports.
Regulations and procedures in this area must be complemented by domestic legislation.
Nevertheless, Articles 250 to 255 of Title XV, Chapter III (Border Measures), of Decision 486 lay
down procedural regulations in this respect.  The owner of the registration of a mark who has
reasonable grounds for suspecting that products infringing the trademark are to be imported or
exported may request the competent national authority to suspend customs clearance.  To that end, hemust supply the authority with the necessary information and a sufficiently detailed and precise
description of the allegedly infringing goods to  allow them to be identified (Article 250 of
Decision 486).
In order to substantiate his claims, the owner of the mark may be allowed to participate in the
inspection of the goods detained.  The importer or exporter of the goods shall enjoy the same right.
When carrying out the inspection, the competent national authority shall take the necessary
steps to protect the confidentiality of information, where applicable (Article 251 of Decision 486).
Where the applicable conditions and guarantees have been fulfilled, the competent national
authority shall order or refuse the suspension of the customs operation and shall notify the applicant
accordingly.
If suspension is ordered, the notification shall include the name and address of the consignor,
importer, exporter and consignee of the goods, as well as the quantity of goods subject to the
suspension.  The suspension shall also be notified to the importer or exporter of the goods
(Article 252 of Decision 486).IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 13
If the plaintiff has not initiated an action for infringement within ten working days of the date
of notification of the suspension of customs clearance or the competent national authority has not
extended the suspension, the measure shall be revoked and the detained goods shall be released
(Article 253 of Decision 486).  Once a finding of infringement has been made, the goods bearingcounterfeit marks that have been seized may not be re-exported or subjected to a different customs
procedure, except in duly specified cases or where the express authorization of the owner of the mark
has been obtained (Article 255 of Decision 486).
Once infringement proceedings have been initiated, the defendant may appeal against the
measure and the competent court shall act to modify, revoke or confirm the suspension (Article 254 of
Decision 486).
Without prejudice to other rights of action available to the right holder and subject to the
defendant's right to appeal to a judicial authority, the competent national authority may order the
destruction or confiscation of the infringing goods.
In principle, no measures are taken ex officio by Venezuela's civil courts but must be
requested in the context of judicial proceedings.  They may be enforced ex officio if they are
requested by the Public Prosecutor's Office in the course of criminal proceedings, in which case the
goods concerned must be held in storage until a determination is made as to whether or not a
punishable offence has been committed.  In cases involving smuggling, the goods may be destroyed.Such measures may be carried out by the civil defence authorities, i.e. the National Guard, in the
course of anti-smuggling operations, where narcotics offences are alleged or as a result of complaints
made on the basis of the Criminal Code or the commission of an offence.
It should be noted that Article 87 of the Basic Customs Law makes the customs authority
responsible for implementing border measures, but as such measures must be requested in judicial
proceedings resulting from an investigation based on a complaint or petition, it is in fact the judicial
authorities that are competent to order them.
Pursuant to Article 241 of Decision 486 of the Andean Community, any of the following
measures may be requested:
(a) Cessation of the acts constituting the infringement;
(b) compensation for injury;
(c) withdrawal from commercial channels;
(d) prohibition of import or export;
(e) award of ownership of the goods;(f) destruction of the goods;
(g) temporary or permanent closure of the defendant's establishment;
(h) publication of the coercive judgement and notification thereof to interested parties at
the expense of the infringer.
In addition, the Code of Civil Procedure allows requests for innominate measures provided
that the allegations specified in Article 588 are substantiated.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 14
As provided in Article 247 of Decision 486 of the Andean Community, anyone requesting
such measures must show proof of their lawful right to act and of the existence of the infringed right,
and furnish evidence indicating a reasonable presumption that the infringement has been committed oris imminent.  In customs matters, pursuant to Article 87 of the Basic Customs Law, sufficient security
or guarantees are required.
Section 5:  Criminal procedures
- Article 61
For criminal cases, in accordance with the Basic Code of Criminal Procedure (COPP),
published in Official Journal No. 5.208 (Special) of the Bolivarian Republic of Venezuela, dated
23 January 1998, which repealed the Code of Criminal Prosecution, jurisdiction is determined on a
territorial basis according to the place where the offence or misdemeanour was committed (Article 53
of the COPP).  The criminal courts operate at two levels or instances in each judicial district:  the firstinstance, comprising single-judge courts ( tribunales unipersonales ), mixed courts ( tribunales mixtos ),
and courts with juries ( tribunales de jurados );  and the appellate level of courts with benches of
professional judges ( tribunales colegiados de jueces profesionales ).  The supervision of the
investigation and the intermediate stage are the responsibility of single-judge courts called
supervisory courts ( tribunales de control ) and the judgement stage is the responsibility of the trial
courts ( tribunales de juicio ) (Article 103 of the COPP), on the understanding that when the Basic
Code of Criminal Procedure refers to the supervisory court or judge ( tribunal o juez de control ), the
trial court or judge ( tribunal o juez de juicio ) and the enforcement court or judge ( tribunal o juez de
ejecución ), this always means the judge of first inst ance with supervisory, trial or enforcement
responsibilities, respectively (Article 104 of the COPP).
In the case under consideration, courts with a single-judge supervisory or enforcement courts
are responsible for dealing with industrial property offences covered by Articles 338 to 340 of the
Criminal Code and Articles 98 to 101 of the Industrial Property Law, which provide for terms of
imprisonment not exceeding four years.
The Criminal Code establishes penalties for both industrial property and copyright
infringements.  Article 338 of the Criminal Code, for example, provides for a prison sentence of
one (1) to twelve (12) months for anyone who has counterfeited or altered names, marks or distinctive
signs belonging to intellectual works or to the pr oducts of any industry, and for anyone who has made
use of legally registered names, marks or signs that have been so counterfeited or altered, even if the
act was carried out by a third person.  The same penalty applies to any person who has counterfeitedor altered industrial designs or has made use of them, even if the act was carried out by a third person.
Article 339 of the Criminal Code imposes a prison sentence of one (1) to twelve (12) months
on anyone who, for trading purpose, has imported into Venezuela and placed on sale or otherwise
circulated intellectual works or products of any industry bearing counterfeit or altered names, marksor distinctive signs likely to mislead the purchaser as to their origin or quality, if the ownership of the
works, names, marks or signs has been legally registered in Venezuela.
Article 340 of the Code imposes a prison sentence of fifteen (15) days to three (3) months on
anyone who has disclosed information concerning an invention, scientific discovery or industrialapplication that should have been kept secret and who has become aware of it because of their
position or employment or by virtue of their professi on, art or industry, as well as a prison sentence of
fifteen (15) days to six (6) months if the disclosure was made to a foreigner not resident in Venezuela
or the latter's agent.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 15
Likewise, the Industrial Property Law imposes a prison sentence of one (1) to twelve (12)
months on anyone who infringes the rights of the legitimate owner or holder of a patent, by
manufacturing, making, transmitting or using for industrial purposes and for profit unlawful orfraudulent copies of the subject matter of the patent , without the express or tacit consent of the owner,
as well as anyone who, in order to prejudice the rights or interests of the legitimate owner, uses,
manufactures or makes registered marks, designs or other items likely to be confused with them
(Articles 98 and 99).
Anyone who designates an establishment as a branch of another establishment which has a
registered trade name and who fraudulently takes advantage of an industrial or commercial reputationearned by the efforts of another person whose property is protected under the Industrial Property Law
shall incur a prison sentence of imprisonment of one (1) to twelve (12) months (Articles 100 and 101
respectively).
As regards copyright, the use of the title of a work, the communication in original or
processed form, in full or in part, of intellectual works, editions of the works of others, texts,
photographs or products obtained by a process similar to photography or images recorded on
cinematographic film, being equivalent to photography, and the distribution of intellectual works
including copies of phonograms and unauthorized broadcasting or retransmission by broadcasting
organizations, without the consent of the owner of the rights concerned, are offences punishable by aprison sentence of six (6) to eighteen (18) months (Article 119 of the Law on Copyright).
A prison sentence of one (1) to four (4) years shall be imposed on anyone who deliberately
reproduces, in original or processed form, in full or in part, intellectual works, editions of the works of
others, texts, photographs or products obtained by a process similar to photography or who importsinto Venezuela, stores, distributes, sells, or circulates unlawful reproductions thereof (Article 120 of
the Law on Copyright).  The same penalty applies to anyone who copies, by any means, the work of a
performer, a phonogram or a broadcast, in full or in part, or who imports into Venezuela, stores,
distributes, sells or circulates such reproductions or copies (Article 121 of the Law on Copyright).
In Venezuela, the competent public authority fo r initiating criminal proceedings is the Public
Prosecutor's Office, whose responsibilities in cr iminal proceedings, pursuant to Article 105 of the
Basic Code of Criminal Procedure, are the following:
(1) To direct the investigation of punishable offences and the activities of the police
investigation units in order to determine the identity of the perpetrators and
participants.
(2) To organize and supervise the activities of the police investigation units for the
purpose of obtaining and preserving items of evidence.
(3) To prepare the accusation and amplify it where necessary and to request imposition of
the corresponding penalty.
(4) To order the filing of supporting documents relating to the case, by means of a well-
founded decision, where there are not sufficie nt elements to pursue the investigation.
(5) In the cases permitted by the Law, to dispense with criminal action.
(6) Where applicable, to request dismissal of the case or acquittal of the accused.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 16
(7) To put forward objections against judicial officials and members of the jury.
(8) To institute civil proceedings based on the offence, where this is provided for by the
Code.
(9) To request the competent court to order the necessary preventive measures.(10) To participate in all steps in the proceedings which, pursuant to the Law, require its
presence.
(11) To lodge appeals against decisions taken in cases in which it is involved.(12) To safeguard the interests of victims during the proceedings.(13) To request the competent court to remove the plaintiff from the proceedings when he
repeatedly obstructs the work of the prosecution.
(14) Any other functions assigned to it by the Code or other legislation.The Public Prosecutor's Office may initiate proceedings ex officio or at the request of the
injured party.  The offences covered by Articles 338 and 339 of the Criminal Code are publiclyactionable, so the Public Prosecutor's Office  is responsible for initiating the proceedings  ex officio,
although this does not prevent a private person from reporting the offence to the Public Prosecutor's
Office or to a public official in accordance with Article 92 of the Criminal Code.
Action in the cases covered by Article 340 of the Criminal Code and Articles 98 to 101 of the
Industrial Property Law can only be initiated by the injured party.  These are referred to as privately
actionable offences in Venezuelan legislation.
The offences defined in Articles 119 to 122 of Part VII (Criminal Sanctions) of the Law on
Copyright can only be prosecuted on a complaint by the injured party (Article 123 of the Law on
Copyright).
Owners of industrial property rights, licensees and their attorneys.
In the case of copyright and related or neighbouring rights, the holder of any of the rights of
exploitation recognized in the actual text of the Law, whether they be original rights, derived rights or
rights conferred by operation of the Law, may bring an action.  This means that the right holdersinclude the author and his successors in title (wheth er through transfer following the author's death or
through an act inter vivos ), in accordance with Articles 5, 29 and 50 of the Law on Copyright;  the
producer of an audiovisual work (Article 15 of th e Law on Copyright), a broadcast work (Article 16
of the Law on Copyright), or a computer program (Art icle 17 of the Law on Copyright), as well as the
employer or person commissioning a work when it has been produced in an employment relationship
or on commission (Article 59 of the Law on Copyrigh t), by virtue of the presumption of transfer of
economic rights laid down in the relevant provisions;  the publisher or the person who has made
known an anonymous work, as the legal representative of the author (Article 8 of the Law on
Copyright);  the photographer (Article 38 of the Law on Copyright);  the publisher of a work
representing the fruit of scientific endeavour (Article 36 of the Law on Copyright); the discloser of aposthumous work (Article 37 of the Law on Copyright), the latter three as owners of related rights;
and the owners of neighbouring rights, namely, performers (Article 92 of the Law on Copyright),
phonogram producers (Articles 95 and 96 of the Law on Copyright) and  broadcasting organizations
(Article 101 of the Law on Copyright), or their respective successors in title.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 17
Partners, shareholders or members, in the case of offences affecting legal entities committed
by persons who direct, manage or control them, and associations, foundations and other bodies, in the
case of offences affecting collective or separate interests, provided that the purpose of the group isdirectly linked to such interests and that it was established prior to the commission of the offence
(paragraphs 3 and 4 of Article 116 of the Basic Code of Criminal Procedure).
The Industrial Property Law, the Criminal Code and the Law on Copyright provide for terms
of imprisonment which, depending on the cases covered by the legislation in question, may range
from one month to four years as punishment for infringements of intellectual property rights.
(i) Monetary fines
In addition to the prison sentence provided for in the Criminal Code and the Industrial
Property Law, a fine of Bs 50 to 1,000 is applicable to anyone who:
(1) Without obtaining a patent or enjoying the privileges associated therewith, takes
advantage of it as if by right;
(2) uses a mark or industrial design without being in possession of the corresponding
certificate of registration and states that the mark or design has been registered;
(3) holds a mark for a particular category of goods and uses it as a registered mark on
goods belonging to another category;  and
(4) fraudulently asserts that a registration is still valid even though, according to a public
declaration by the competent authority, it no longer has effect.  If further offences are
committed, the penalty indicated in this Article shall be converted into a
proportionate term of imprisonment (Article 102 of the Industrial Property Law).
As regards copyright, independently of the criminal sanction applicable, a monetary fine may
accompany the judicial decision upholding the claim for cessation of the infringing activity.  The
revised Law on Copyright of 1993 provides for the imposition of a fine, not in relation to a futureinfringement, as was the case with the 1962 Law, but where an infringement of the plaintiff's right has
been proven in the course of prohibition proceedings.
Consequently, if infringement is proved in the course of the proceedings, at the request of the
injured party the court shall order the defendant to pay a fine not exceeding the equivalent oftwenty (20) units of the minimum wage, which can be converted into a term of imprisonment at the
rate of Bs 500 per day of imprisonment.  If a further offence is committed, the penalty may be
doubled.  In addition, the amendment to Article 95 of the repealed Law on Copyright, which has now
become Article 109, authorizes the court to impose a fine on the infringer once infringement has been
proved, without having to wait until a further infringement has occurred, as was the case under theprevious enactment.
A fine is of course independent of any conviction relating to compensation for injury.(ii) Seizure, forfeiture and destruction of infringing goods and of materials and
implements for their production
In industrial property cases, Article 105 of the relevant Law provides that:IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 18
"Any sentence for an industrial property offence shall order the destruction of the elements
used or prepared for the commission of the offe nce, as well as the objects resulting from the
offence."
The Law on Copyright (Article 97) provides for action or claims to obtain the destruction or
withdrawal of unlawfully repr oduced copies and of the equipment used for their unlawful
reproduction.
The judicial ruling must allow or disallow the withdrawal or destruction, but the equipment
used for the reproduction may not be destroyed if it can be used for the reproduction or
communication of other material (Article 110).
In exceptional cases, the unauthorized copy of a work, performance or production, or the
equipment used for the offence, may have special artistic or scientific merit, in which case the court
will not order its destruction and is authorized to order ex officio that it be handed over to a public
museum.  Action for removal and destruction always leaves open the possibility of action fordamages.
(iii) Other measuresArticle 113 of the Venezuelan Law on Copyright provides that, at the request of the interested
party, the court may order that the operative part of  the ruling given in any of the actions provided for
by the Law be published at the expense of the losing party in one or more newspapers specified by the
court.
Although this authority can be used at the court's discretion, it has become common practice,
in civil cases in Venezuela, for the court to order publication of the operative part of the ruling,
provided of course that such publication has been requested by the complaining party.
In criminal cases, Article 338 of the Criminal Code authorizes the court to decide that the
sentence should be published in a specified newspaper, at the expense of the defendant.  Unlike in
civil proceedings, this authority is rarely used.
In copyright matters, the court may order the publication in the press of the adverse or
favourable judgement at the expense of the defendant or of the plaintiff, as appropriate (Article 124 of
the Law on Copyright).
Other remedial measures that may also be requested pursuant to Article 11 of the Law on
Copyright include seizure of the revenue accruing to  the owner of the disputed right of exploitation
and the sequestration of anything that constitutes infringement of the right of exploitation.  These
measures may only be ordered under the article in question if there is evidence indicating a serious
presumption of the right claimed or if such pres umption emerges from the production of any of the
evidence.  In addition to the specific rules on copyright, the provisions of the Code of Civil Procedureare also applicable on a supplementary basis, so that the measures referred to do not prevent the
imposition of other measures such as a ban on disposing of or encumbering immovable property or
appropriate measures (innominate measures) taken on the basis of the first paragraph of Article 588 of
the Code, again in relation to industrial property rights, where there is a justified fear that one of the
parties might cause serious injury or injury that woul d be difficult to repair to the rights of the other
party.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 19
In addition to the foregoing, the Code of Ci vil Procedure provides for the possibility of
applying so-called "innominate measures" (Article 588) , i.e. measures other than those specified in the
legislation, provided that certain specific requirements are met.
The revision of the former Code of Criminal Prosecution and its replacement by the new
Basic Code of Criminal Procedure entailed inter alia  the elaboration of a new criminal procedure that
guarantees the principles of duality, a hearing, equality, procedural dispatch, official procedures,
expediency and obligatory prosecution ( legalidad ), among others;  these are also constitutional
principles.
The principle of duality refers to proceedings where there are two parties, accuser and
opposing accused, with the court acting as an impartial third party.
The principle of a hearing (" audiatur et altera pars ") means that no one can be convicted
without being heard, but this does not only apply to the accused;  the accuser must also be heard
when he makes his accusation or when he requests a court ruling.  Under the Basic Code of CriminalProcedure, this is the case for the prior examination of unrepeatable evidence (Article 316), the
decision on commencement of proceedings (Article 334) and the conduct of oral proceedings
(Articles 347 et seq ).
The principle of equality means that the parties have the same rights, opportunities and
responsibilities for the defence of their interests.
The official procedures principle has the advantage, from the standpoint of the public interest,
of enabling criminal prosecution to be supervised by innately different State bodies which deal with
the prosecution and the procedure.
The principles of expediency and obligatory prosecution:  expediency is the counterpoint to
obligatory prosecution, according to which the Public Prosecutor's Office is obliged to bring a
prosecution for any act which constitutes an offence, provided that the investigation carried out yields
sufficient evidence to maintain the indictment.
The principle of expediency constitutes an exception to obligatory prosecution, making it
possible to refrain from prosecuting certain crimin al acts or to suspend proceedings already under
way, with or without conditions.  In Anglo-Saxon law, this is reflected in the formulas of "plea of
guilty", a confession designed to avoid a trial, and "plea bargaining", where negotiations between the
prosecutor and the accused lead to agreement on the overall scope of the charges, so that, where
applicable, the criminal act as such is modified or reclassified.
In accordance with these principles, the reform of criminal procedure in Venezuela is aimed
at streamlining and modernizing procedures, although it is not possible to indicate a precise time-
frame for the duration of the process or the cost which will depend to a large extent on the amount of
the disputed assets and the estimated injury caused through loss of profits or actual harm, which arespecific in each case.  In some cases, during the preparatory and investigation phases, when the
alleged offender has already been identified, the Public Prosecutor's Office may postpone the case for
six months and request an extension in order to obtain the elements required for the application to
institute proceedings.
In addition, depending on the speed of the proceedings and the efficacy of the courts, the
injured party may bring a civil action for damages caused by the offence, which may be examined and
decided by the criminal courts.  This option is open to right holders and it helps to speed up
proceedings and uphold their rights.  This is the spirit underlying the action for damages provided forIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 20
in Article 1185 of the Venezuelan Civil Code and Articles 241, subparagraph (b) and 243 of the new
Decision 486 of the Andean Community, as well as in Venezuelan legislation already covered in other
parts of the replies to this questionnaire.
2. What protection does your copyright legislation afford to "foreign works"?
The Bolivarian Republic of Venezuela has signed and ratified the Berne Convention for the
Protection of Literary and Artistic Works of 9 September 1886 and the Appendix thereto, which are
thus law in the Republic.  Article 3 of the Convention sets out the criteria for protection as follows:
"(1) The protection of this Convention shall apply to:
(a) Authors who are nationals of one of the countries of the Union, for their
works, whether published or not;
(b) authors who are not nationals of one of the countries of the Union, for their
works first published in one of those countries, or, simultaneously, in a
country outside the Union and in a country of the Union.
(2) Authors who are not nationals of one of the countries of the Union but who have their
habitual residence in one of them shall, for the purposes of this Convention, beassimilated to nationals of that country. (…)."
With regard to neighbouring rights, the Bolivarian Republic of Venezuela has also signed and
ratified the International Convention for the Prot ection of Performers, Producers of Phonograms and
Broadcasting Organizations (Rome, 1961).  The principle of national treatment is defined in Article 2of this Convention:
"1. For the purposes of this Convention, national treatment shall mean the treatment
accorded by the domestic law of the Contracting State in which protection is claimed:
(a) To performers who are its nationals, as regards performances taking place,
broadcast, or first fixed, on its territory;
(b) to producers of phonograms who are its nationals, as regards phonograms first
fixed or first published on its territory;
(c) to broadcasting organizations which have their headquarters on its territory, as
regards broadcasts transmitted from transmitters situated on its territory.
(…)."
Article 98 of the Constitution of the Bolivarian Republic of Venezuela specifically recognizes
the legal force of international intellectual property agreements as follows:
"Article 98:  (…) The State shall recognize and protect intellectual property in scientific,
literary and artistic works, inventions, innovations, appellations, patents, marks and
advertising slogans in accordance with the condi tions and exceptions laid down in the law and
in the relevant international treaties signed and ratified by the Republic."  (Emphasis added)
The principle of national treatment referred to in international copyright agreements is thus
incorporated in Venezuelan legislation and its observance is mandatory for administrative and judicial
authorities.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 21
Venezuela's domestic copyright legislation (Law on Copyright and Regulations thereto)
contains all the substantive and procedural principles included in the relevant international
agreements.
In Venezuela, foreign works enjoy the same protection as national works and this is granted
in accordance with the principles laid down in international agreements.
3. What are the key improvements introduced by Decision 486 on intellectual property,
which took effect on 1 December 2000, in re spect of the TRIPS Agreement obligations?
The new subregional regulations in the text cover the following, in accordance with the
TRIPS Agreement:
• National treatment and most-favoured-nation clause
• Mechanism for protection of layout-designs (topographies) of integrated circuits
• Measures for the enforcement or protection of industrial property rights (provisional,
civil, administrative and border measures)
• Regulation of unfair competition in relation to industrial property
• Term for industrial designs
• Scope of patentability (patentable subject matter and exclusions from patentability)
• New use patents
• Business secrets
Some brief remarks follow concerning the aforementioned aspects, which reflect the
harmonization of the Andean regime with the TRIPS Agreement.  There are also comments on other
changes reflecting technical improvements to the common industrial property regime:
The new Decision contains:  General Provisions regarding national treatment , which provide
that each country Member shall accord to the nationals of other Members of the Andean Community,
and the World Trade Organization and of States parties to the Paris Convention for the Protection of
Industrial Property treatment no less favourable than it accords to its own nationals with regard to the
protection of intellectual property.  The same treatment may be accorded to the nationals of a third
country under the terms of the country Member's domestic legislation.
There is a clause on most-favoured nation treatment providing that any advantage, favour,
privilege or immunity in respect of intellectual property granted by a country Member to the nationals
of any other Andean Community country Member shall be extended to the nationals of any other
Member of the World Trade Organization or State party to the Paris Convention.
Regarding non-patentable subject-matter, each of the requirements is specified and brought
into line with the TRIPS Agreement (Article 27.2 and 27.3).  The following are therefore not
patentable:IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 22
(a) Inventions whose commercial exploitation in the territory of the country Member
concerned must necessarily be prevented in order to protect public order or morality.
For this purpose, the commercial exploitation of an invention shall not be considered
as contrary to public order or morality merely because the exploitation is prohibitedor regulated by a legal or administrative provision;
(b) inventions whose commercial exploitation within the country Member concerned
must necessarily be prevented in order to protect human or animal life or health, or to
protect plants or the environment.  For this purpose, the commercial exploitation of
an invention shall not be considered as prejudicial to human or animal life or health
or to the protection of plants or the environment merely because the exploitation isprohibited or regulated by a legal or administrative provision;
(c) plants, animals and essentially biological processes for the production of plants or
animals other than non-biological or microbiological processes;
(d) therapeutic and surgical methods for the treatment of humans or animals and
diagnostic methods applied to humans or animals.
The prohibition on patenting the essential medicines contained in the World Health
Organization's list has been abolished.
The wording found in Article 16 (Protection of secondary uses) of the repealed Decision 344
has been maintained as follows:
"Products or processes already patented and included in the state of the art within the meaning
of Article 16 of this Decision may not be the subject-matter of a new patent merely because
they have been assigned a use different from th at originally provided for in the first patent."
Pursuant to Article 27.3(b) of the TRIPS Agreement, provision is made for the protection of
micro-organisms under the patent regime.
The period for processing patent applications has been extended from 30 days with the
possibility of a further 30-day extension to a period of 60 days with an extension of a further 60 days.
This was requested by patent applicants because of  the need to obtain technical information at the
international level and to have the necessary time to file the application in other countries in order to
obtain protection.
The protection of layout-designs of integrated circuits has been introduced in accordance with
Articles 35 to 38 of the TRIPS Agreement, thereby complying with a requirement in existence since
1 January 2000.
Pursuant to Articles 25 and 26 of the TRIPS Agreement, amendments have been made to the
industrial designs regime so as to afford protection for textile designs, which were excluded from
protection under Decision 344.  The term of protection for all designs has been increased from eightto ten years as of the date of the filing of the application, while at the same time a much shorter period
for the processing of applications has been introduced.
A special section has been introduced on well-known signs, the scope of which is limited to
cases in which there might be a risk of confusion or of association for consumers in the market and
consequently of weakening the distinctive force of the sign for the owner of the mark.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 23
The criteria to be taken into account when determining the distinctiveness of a sign have been
expanded and this will benefit applicants as far as the lodging of objections or proving the
distinctiveness of a sign are concerned.  It will also help to broaden the criteria to be taken into
account by the authority in order to substantiate its decisions and provide better protection under thetrademark regime.
In view of the problems raised by the assignment of domain names in the absence of
knowledge of the existence of any prior rights in  well-known signs, which is giving rise to a
considerable amount of insecurity and a climate of unfair competition, the competent national
authority is authorized to cancel or request the modification of a domain name or electronic mail
address at the request of the owner or lawful holder  of rights in a well-known sign, provided that the
name or address is likely to cause confusion or a ssociation, economic or commercial injury or unfair
exploitation of the sign's prestige or fame.
This is the first provision that seeks to strike a balance between the domain name assignment
system and the trademark regime, especially with regard to well-known signs, and it will help toresolve the current problems.  It also provides the basis for strengthening the information and
cooperation links between the CNIT and the Autonom ous Intellectual Property Service (SAPI), with a
view to improving security and guarantees for pre-existing trademark rights without creating obstacles
to the maintenance of a dynamic domain name assignment system, thereby achieving the necessary
balance between the two systems.
Given the inadequacy of regulations to protect lawfully acquired industrial property rights,
which is one of the most important aspects and requirements in the TRIPS Agreement, provision is
now made, in accordance with the Agreement, for cl aims to establish title to a patent or industrial
design where such title has been obtained by some one who has no right to it or to the detriment of
another person possessing the same title.  There are also regulations on actions claiming ownership in
relation to infringement of a trademark.  The time-limits for initiating such actions are specified and it
is expressly stated that there is no time-limit if the rights were acquired in bad faith.
These clauses represent significant progress in defending and protecting lawfully acquired
industrial property rights and create a more secure climate while at the same time contributing to one
of the objectives of any industrial property regime, namely, the effective granting of rights, whichpreviously lacked the necessary protection or defensive safeguards.
As a complement to the foregoing, the section on actions for infringement of rights constitutes
another new aspect of the subregional provisions inasmuch as, for the first time under the Andean
Community regime, regulations are established in respect of the actions required to defend industrialproperty rights.
The TRIPS Agreement requires WTO Members to establish such regulations and this was one
of the major shortcomings of Decision 344.  Despite the relevant provisions in the new Decision 486,
however, the procedure for bringing such actions has to be supplemented by national legislation so asto define quite clearly the enforcement requiremen ts and fully comply with all the WTO rules on the
subject.
It should be noted that, as far as copyright is concerned, the Law on Copyright already
contains national provisions to protect against infringement of copyright.  The only element missingwas the same protection for industrial property rights, which have a direct impact on development of
the production sector, the organization of domestic trad e and the promotion of exports.  It is therefore
essential to promote the adoption of a National Industrial Property Law so as to give effect toIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 24
procedures for the protection of industrial property rights and complement the provisions of the new
Decision as regards preventive measures, border measures and criminal procedures.
With regard to the latter, Decision 486 confines itself to requiring country Members to
provide for criminal procedures and penalties to be applied in cases of counterfeiting of marks.  This
is currently covered by Articles 338 and 399 of the Criminal Code and the 1955 Industrial Property
Law, with penalties for the injury which this type  of infringement can cause to industry or to the
market.
Another new aspect is the incorporation in the subregional enactment of regulations on  acts
of unfair competition in relation to industrial property, as a complement to Venezuela's existing unfair
competition regime and pursuant to Article 10 bis of the Paris Convention.
The new Decision precisely defines acts of unfair competition in relation to industrial
property, so as to prevent confusion or interference with the national authority's competence in this
field.
It is stated that proceedings for unfair comp etition may be brought without prejudice to any
other right of action and that, if domestic legislation so permits, such proceedings may be initiated ex
officio by the competent national authority.
The same section includes provisions on business secrets, which were previously called
industrial secrets in Decision 344.
The inclusion of business secrets in the section on unfair competition in relation to industrial
property is consistent with the treatment and position they should be given because they do notconstitute a separate category of industrial property rights and are usually regulated under unfair
competition provisions.
Another important aspect is the fact that th e new Decision gives business secrets protection
that is consistent with the requirements of the TRIPS Agreement and establishes much clearer
provisions for their interpretation and application by entities responsible for granting authorizations to
market pharmaceutical products or agricultural chemical products.
III. REPLIES TO THE QUESTIONS POSED BY THE EUROPEAN COMMUNITIES
AND THEIR MEMBER STATES
A. 
GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health
and nutrition and to promote the public interest in sectors of vital importance to your
socio economic and technological development as mentioned under Article 8 of the TRIPS
Agreement.  If yes, please explain how such measures are consistent with the provisions of the
TRIPS Agreement.
The aim of all Venezuela's current economic and social legislation is to promote and give
effect to the public interest and the general well-being of the Venezuelan nation.  It is impossible to
identify any law in particular that responds to the terms of the question because this is a general
principle and is inherent in the functioning of any modern State.  Nonetheless, as regards intellectual
property, the provisions of Article 65 of De cision 486 of the Commission of the Cartagena
Agreement, which provide for the granting of compulsory licences for reasons of public interest,
could be cited as an example.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 25
The special provisions of the TRIPS Agreement (P arts II to VII) are subject to the General
Provisions and Basic Principles of Part I of the Agreement, including Article 8.  The latter lays down
certain principles  and recognizes the rights of WTO Members to safeguard those principles in their
domestic legislation.
The consistency of any provisions of domestic legislation with those of the TRIPS Agreement
would be ensured by Article 8 of the Agreement, which legitimizes any measures consistent with the
Agreement's provisions that a WTO Member might take.
B. COPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic  works, as specified in Article 9 of the TRIPS
Agreement, which requires Members to comply with Articles 1-21 of the Berne Convention and
the Appendix to the B erne Convention (1971).
Venezuela acceded to the Berne Convention for the Protection of Literary and Artistic Works
on 11 May 1982.  Nevertheless, both the Venezuelan Law on Copyright and Decision 351 – Common
Regime for Copyright and Related Rights – contain provisions which fully reflect those of the Berne
Convention and are thus wholly consistent with the wording of Article 9 of the TRIPS Agreement.
With regard to the Article 11 exception concerning Article 6 bis of the Berne Convention,
Venezuelan law departs from this exclusion and includes in the Law on Copyright the scope of moral
rights laid down in Articles 18 to 20, as well as Articles 11 and 12 of Decision 351 of the Commission
of the Cartagena Agreement.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
Article 23 of the Law on Copyright includes computer programs among protected intellectual
works.  Article 174 of the Law defines what is meant by a computer program and establishes rules of
ownership with regard to the relationship betw een the producer of the program and its authors.
Article 105 of the Regulation to the Law on Copyright expressly states that computer
programs are protected on the same terms as literary works.
                                                     
3 Article 2.  The following in particular shall be considered included among the intellectual works
referred to in the foregoing Article:  books, pamphlets and other literary, artistic and scientific writings,
including computer programs and the associated technical literature and users' manuals;  lectures, addresses,sermons and other works of the same nature;  dramatic or dramatic-musical works, choreographic and mimed
works the stage movements for which have been set down in writing or otherwise;  musical compositions with
or without words;  cinematographic works and other audiovisual works expressed by any process;  works ofdrawing, painting, architecture, engraving or lithography;  works of applied art that are not mere industrialdesigns;  geographical illustrations and maps;  plans, three-dimensional works and sketches relating togeography, topography, architecture or science;  and, finally, any literary, scientific or artistic product
susceptible of disclosure or publication by any means or process.
4 "Article 17.  Computer program shall be understood to mean the expression, in whatever mode,
language, notation or code, of a set of instructions the purpose of which is to make a computer perform a
specific task or function, whatever the manner in which it is expressed and the physical medium on which thefixation has been effected.
5 Article 10.  Computer programs shall be protected on the same terms as literary works (…)
(Regulation to the Law on Copyright and Decision 351 of the Commission of the Cartagena Agreement).IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 26
Article 36 of Decision 351 – Common Regime for Copyright and Related Rights – defines
what is meant by a computer program (software).  Article 47 of the same Andean Decision includes
computer programs as protectable subject-matter.  Likewise, Article 238 states that computer
programs are protectable and provides for their protection on the same terms as literary works.
With regard to databases, Article 39 of the Law on Copyright specifically states that databases
are protectable.
Article 2.310 of the Regulation to the Law on Copyright defines the term database.  Article
1211 of the Regulation secures protection for databases provided that they constitute personal creations
by virtue of the selection or arrangement of their subject matter.
Article 4 (ll)12 of Decision 351 – Common Regime for Copyright and Related Rights –
includes databases as protectable subject matter.  Article 2813 of the same Decision grants databases
protection provided that they constitute personal creations by virtue of the selection or arrangement oftheir subject matter.
                                                     
6 Article 3.  Computer program (software):  the expression in words, codes, plans or any other form of
a set of instructions which, on being incorporated in  automated reading apparatus, is capable of causing a
computer – an electronic or similar device capable of pr ocessing information – to execute a particular task or
produce a particular result.  The computer program shall likewise include technical documentation and users'manuals.
7 Article 4. The protection granted by this Decision shall apply to all literary, artistic and scientific
works that may be reproduced or disclosed by any known means or knowable, including the following inparticular:  (…) (i) Computer programs.
8 Article 23.  Computer programs are protected on the same terms as literary works.  Such protection
shall extend not only to operating programs but also to application programs, in the form of either source codesor object codes.
9 Article 3.  Translations, adaptations, transformations or arrangements of other works, and also
anthologies or compilations of various works and databases shall be considered intellectual works distinct fromthe original work where, by virtue of the selection or arrangement of their subject matter, they constitutepersonal creations.
10 Article 2.  ( …) (3) Database:  the compilation of works, facts or data in printed form, in computer
storage units or in any other form.
11 Article 12.  Databases shall be protected provided that they constitute personal creations by virtue of
the selection or arrangement of their contents.  The protection granted shall not extend to compiled data orinformation, but it shall not affect any rights existing in the works or material constituting the said database.
12 Article 4.  The protection granted by this Decision shall apply to all literary, artistic and scientific
works that may be reproduced or disclosed by any means known or knowable, including the following in
particular:  (…) (II) Anthologies or compilations of assort ed works and also databases, which, by the selection
and arrangement of their subject-matter, constitute personal creations.
13 Article 28.  Databases shall be protected provided that they constitute intellectual creations by virtue
of the selection or arrangement of their subject matter.  The protection granted shall not extend to compiled dataor information, but it shall not affect any rights subsisting in the works or material constituting the said database.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 27
4. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organizations under your legislation.
Pursuant to Article 9214 of the Law on Copyright, performers15 have the exclusive right to
authorize or prohibit the fixation, reproduction or communication to the public, by whatever means or
process, of their performances.
The term of protection for performers' rights is 60 years as of 1 January of the year following
the performance, in the case of unfixed performances, or following publication where the performance
is recorded on a sound or audiovisual medium, in accordance with Article 9416 of the Law on
Copyright.
Decision 351 – Common Regime for Copyright and Related Rights – grants performers
similar rights under to Articles 3417, 3518 and 3619.
As regards phonogram producers, Article 95 of the Law on Copyright gives them the
exclusive right to authorize or prohibit the reproduction of their phonograms and the importation,
distribution to the public, rental or other use, in whatever form and by whatever means, of copies of
their phonograms.
According to Article 96 of the Law on Copyright, phonogram producers have the right to
receive remuneration for the communication of phonograms to the public.
Decision 351 of the Cartagena Agreement also establishes a right of remuneration, under
Article 37(d)20, for the producers of phonograms in respect of the public communication of their
phonograms.
                                                     
14 Article 92.  Performers or their successors in title shall have the exclusive right to authorize or
prohibit the fixation, reproduction or communication to the public, by whatever means or process, of their
performances.  They may not, however, object to communication when it is effected on the basis of a fixation
effected with their prior consent and published for commercial purposes.
15 Article 2.  (…)  (2) Performer:  the person who pe rforms, sings, reads, recites, interprets or in any
way executes a work." (Regulation to the Law on Copyright and Decision 351 of the Commission of the
Cartagena Agreement).
16 Article 94.  The term of protection granted to pe rformers shall be 60 years, counted from 1 January
of the year following the performance in the case of unfixed performances, or following publication where the
performance is recorded on a sound or audiovisual medium.
17 Article 34.  Performers shall have the right to authorize or prohibit the communication to the public,
in any form, of their unfixed performances, and the fixation and reproduction of their performances.
Nevertheless, performers may not object to the communication to the public of their performances
where in themselves they constitute broadcast perfor mances or are produced from a previously authorized
fixation.
18 Article 35.  In addition to the rights recognized in the preceding Article, performers shall have the
right to:
(a) Demand that their names be mentioned at or associated with every performance that takes place;
(b) object to any distortion or mutilation of their performances or any other act prejudicial thereto that
might adversely affect their prestige or reputation.
19 Article 36.  The term of protection of the economic rights of performers may not be less than
50 years counted from 1 January of the year following that in which the performance took place or in which the
fixation, if any, was made.
20 Article 37.  The producers of phonograms shall have the right to:  (…) (d) Receive remuneration for
every use of the phonogram or copies thereof for commercial purposes, which remuneration may be shared with
the performers on conditions laid down by the domestic legislation of the country Members.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 28
Concerning broadcasting organizations, Articl e 101 of the Law on Copyright gives them the
exclusive right to authorize or prohibit the fixation, reproduction or retransmission of their broadcasts.
The aforementioned rights are provided for broadcasting organizations pursuant to Article 39.The limitations and exceptions to the rights of performers, producers of phonograms and
broadcasting organizations are specified in Article 34
21, second paragraph, and Article 4222 of
Decision 351 of the Cartagena Agreement.  Article 42 of Decision 351 refers back to the exceptions
permitted under the Rome Convention mentioned in the question.
5. Please state whether your legislation provides  for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Article 43 of the Law on Copyright defines public communications that are lawful or
permitted without the owner's consent:  (1) those attested as occurring in a domestic environment;
(2) those made in the public interest in the course of official events and religious ceremonies;  and
(3) those made for strictly scientific and teaching purposes.
Article 44 of the Law on Copyright defines lawf ul reproductions:  (1) the reproduction of a
single copy made by the user with his own facilities;  (2) photomechanical reproduction for exclusivepersonal use provided that it is confined to small parts of a protected work or works that are out of
print;  (3) reproduction by reprographic means for teaching or the holding of examinations in
educational institutions;  (4) reproduction of works by libraries or archives for the purpose of
preserving or replacing them;  (5) reproduction of a single copy of a computer program for back-up or
security purposes;  (6) storage of a computer program in the internal memory of the equipment for thesole purpose of use by the lawful user;  (7) reproduction of a work for judicial or administrative
proceedings;  (8) the copying of works of art for the purposes of study;  and (9) the reproduction of a
work of art on permanent display in a public site, by a means other than that used for making the
original.
Article 22 of Decision 351 of the Cartagena Agreement provides for similar limitations.
6. Please state the terms of protection of each right described above and the work or
subject matter to which it applies.
 Article 25
23 of the Law on Copyright states that copyright shall last for the author's lifetime
and shall expire after 60 years counted from 1 January of the year following his death, includingcopyright in works not disclosed during his lifetime.
With respect to photographs, Article 38 of the Law on Copyright provides as follows:
                                                     
21 Article 34.second paragraph:  (…) Nevertheless, performers may not object to the communication to
the public of their performances where in themselves they constitute broadcast performances or are made from a
previously authorized fixation.
22 Article 42.  Where permitted by the Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations, the domestic legislation of the country Members may place limitson the rights recognized in this Chapter.
23 Article 25.  Copyright shall last for the lifetime of the author and shall expire after 60 years counted
from 1 January of the year following his death, including copyright in works not disclosed during his lifetime.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 29
"(…) The rights of the photographer and his successors in title shall expire 60 years after the
disclosure of the work.  However, they shall expire 60 years after its completion if it has not
been disclosed during that period.  Such periods shall be counted from 1 January of the year
following disclosure or completion, as the case may be."
The term of protection for works of applied art would be governed by the general rule laid
down in Article 25 of the Law on Copyright.
The term of protection for performers' rights is 60 years from 1 January of the year following
the performance, in the case of unfixed performances, or following publication where the performance
is recorded on a sound or audiovisual medium, according to the terms of Article 9424 of the Law on
Copyright.
With regard to producers of phonograms, the term of protection indicated in Article 10025 of
the Law on Copyright is 60 years from 1 January of the year following the first publication of the
phonogram.
Article 10226 of the Law on Copyright provides that the term of protection granted to
broadcasting organizations shall be 60 years from 1 January of the year following the broadcast.
Decision 351 of the Cartagena Agreement also lays down the terms of protection for works in
Article 1827, for performers in Article 3628, for producers of phonograms in Article 3829, and for
broadcasting organizations in Article 4130.
7. Please describe how and under what provisio ns Venezuela's legislation provides for a
rental right according to Articles 11 and 14.4 of the TRIPS Agreement and, if so, the categories
of right holders and the works to which it applies.
The Law on Copyright guarantees the author's right to authorize or prohibit the
communication to the public of the original or copies of the work, irrespective of its nature, by means
                                                     
24  Article 94. The term of protection granted to pe rformers shall be 60 years, counted from 1 January
of the year following the performance in the case of unfixed performances, or following publication where the
performance is recorded on a sound or audiovisual medium.
25 Article 100.  The protection granted to the producer of phonograms shall last 60 years counted from
1 January of the year following the first publication of the phonogram.
26 Article 102.  The protection granted to broadcasting organizations shall last for 60 years counted
from 1 January of the year following the broadcast.
27 Article 18. Without prejudice to the provisions of Article 59, the term of protection of the rights
provided for in this Decision shall be not less than the life of the author and 50 years after his death.
Where the ownership of the rights accrues to a legal entity, the term of protection shall not be less than
50 years counted from the making, disclosure or publication of the work, as the case may be.
28 Article 36.  The term of protection of the economic rights of performers may not be less than
50 years counted from 1 January of the year following that in which the performance took place or in which thefixation, if any, was made.
29 Article 38.  The term of protection of the rights of producers of phonograms may not be less than
50 years, counted from 1 January of the year following that in which the fixation occurred.
30 Article 41.  The term of protection of the rights of broadcasting organizations may not be less than
50 years, counted from 1 January of the year following that in which the broadcast occurred.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 30
of sale or any other form of transfer of ownership, rental, or any other form of use, against payment.
The right of distribution is covered by Article 4131 of the Law on Copyright.
Article 13(c)32 of Decision 351 – Common Regime for Copyright and Related Rights –
recognizes the author's right to distribute his work, which includes the right to authorize or prohibit
inter alia  leasing or rental of the work.
By establishing the right of distribution to the public without any limitations on its scope,
Venezuela's legislation is consistent with the Agreement and in fact provides more comprehensive
protection.
8. Please describe how and under what provision Venezuelan legislation grants the
retroactive protection provided pursuant to Ar ticle 18 of the Berne Convention and Article 14.6
of the TRIPS Agreement.
The Bolivarian Republic of Venezuela has signed the Berne Convention;  thus, the principles
enshrined in Article 1833 of the Convention have force of law in Venezuela, in conformity with
Articles 14234, and 14335 of the Law on Copyright.
                                                     
31 Article 41.  (…) The right of reproduction shall also cover distribution, which consists in making
available to the public the original or copies of the work by means of sale or other form of transfer of ownership,
rental or other form of use for a consideration.
32 Article 13.  The author, or his successors in title where applicable, shall have the exclusive right to,
authorize or prohibit:  (…) (c)  The distribution of copies of the work to the public by means of sale, leasing orrental.
33 Article 18.
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not
yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which was previously granted, a work has
fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
(3) The application of this principle shall be subject  to any provisions contained in special conventions
to that effect existing or to be concluded between countries of the Union.  In the absence of such provisions, the
respective countries shall determine, each in so far as it is concerned, the conditions of application of this
principle.
(4) The preceding provisions shall also apply in th e case of new accessions to the Union and to cases in
which protection is extended by the application of Article 7 or by the abandonment of reservations.
34 Article 142.  Rights in the works protected under the provisions of the previous Law shall be
afforded the longest terms of protection laid down under this Law.
35 Article 143.  Rights in works that did not benefit from protection under the Intellectual Property Law
of 13 July 1928, for want of registration, and which fell into the private domain under Article 113 of the Law onCopyright of 29 November 1962, shall likewise automatically be afforded the protection granted by this Law,without prejudice to the rights acquired by third parties prior to the entry into force thereof.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 31
C. TRADEMARKS
9. Please give the definition of a sign under your national legislation and explain under
what conditions it is protectable.
Article 13436 of Decision 486 – Common Industrial Property Regime – establishes the criteria
to be fulfilled for the trademark registration of signs and sets out an indicative list containing
examples of a range of registerable signs.
According to Article 134 of Decision 486 of the Commission of the Andean Community
"(…) any sign capable of distinguishing goods or services on the market shall constitute a mark (…)".
The same Article states that "(…) Signs capable of graphic representation (…)" may be registered asmarks.
10. Please confirm whether or not services are a protectable subject matter in your
trademark law.  Please confirm if signs, such as trade names, are protectable.  Please describe if
elements such as sound, perfumes and containers are protectable.
As can be seen from Article 134 of Decision 486 of the Commission of the Andean
Community, a mark may distinguish not only products but also services.
Likewise, trade names are protected under Title X Article 191
37, of Decision 486.
As to whether elements such as sound, perfumes and containers are protectable, the reply is
yes.  In addition to the trademark concept, the above-mentioned Article 134 contains an indicative list
of examples of registerable signs which complement that concept;  these include signs, smells and the
packaging of products.38
                                                     
36 Article 134.  For the purposes of this regime, any sign capable of distinguishing goods and services
on the market shall constitute a mark.  Signs capable of graphic representation may be registered as marks.  The
nature of the product or service to which a mark is to be applied shall in no case be an obstacle to the
registration thereof.
The following signs, among others, may constitute marks:(a) Words or word combinations;(b) images, figures, symbols, graphics, logotypes, monograms, portraits, labels, emblems and shields;(c) sounds and smells;
(d) letters and numbers;
(e) a colour within an outli ne, or a colour combination;
(f) the shape of the goods, their containers or their packaging;(g) any combination of the signs or elements specified in the preceding subparagraphs.
37 Article 191.  The exclusive right to a trade name is acquired through its first commercial use and
ends when use of the name ceases or when the activities of the undertaking or establishment that uses it cease.
38 Article 134.  For the purposes of this regime, any sign capable of distinguishing goods and services
on the market shall constitute a mark.  Signs capable of graphic representation may be registered as marks.  The
nature of the product or service to which a mark is to be applied shall in no case be an obstacle to theregistration thereof.
The following signs, among others, may constitute marks:
(a) Words or a word combination;
(b) images, figures, symbols, graphics, logotypes, monograms, portraits, labels, emblems and shields;(c) sounds and smells;(d) letters and numbers;(e) a colour within an outli ne, or a colour combination;
(f) the shape of the goods, their containers or their packaging;
(g) any combination of the signs or elements specified in the preceding subparagraphs.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 32
11. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a
registration in that respect.
According to the provisions of Decision 486 of the Commission of the Andean Community,
prior use is not a requirement for the registration of a mark.  Nevertheless, once a mark has been
registered, the provisions of Article 166 must be taken into account: "A mark shall be considered to be
in use where the goods or services distinguished by it have been placed, or are available, on the
market under that mark, in the normally appropriate quantity and manner, due regard being had to the
nature of the goods or services and the methods used for their marketing."  The conditions formaintaining the registration of a mark, with  respect to its use, are contained in Chapter V of Decision
486 on the Cancellation of Registration.
It should be noted that proof of use is not required for renewal of a trademark registration,
which is automatic upon the expiry of a period of ten (10) years from the date of registration or withinsix (6) months prior to such expiry or six (6) months subsequent thereto, as a grace period.
12. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
Article 152
39 of Decision 486 – Common Industrial Property Regime – establishes an initial
period of protection of ten (10) years for marks, counted from the grant date.
However, the term of protection may be unlimited, given the possibility of indefinite renewal
for further periods of ten (10) years, this being subject to compliance with the requirementsconcerning the time-limits and payment of prescribed fees, as laid down in Article 153, since no proof
of use is required for renewal of the right.
40
13. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
See the reply to question 11 regarding the definition of use and the conditions under which a
mark is considered to be in use.  In addition, the last paragraph of Article 166 of Decision 486 states
that use of a mark in a form different from that in which it was registered only with respect to details
or elements that do not alter its distinctive character shall not be a cause of cancellation of the
registration for non-use, or lessen the protection accruing to the mark.
                                                     
39 Article 152.  The registration of a mark shall have a term of ten years counted from the grant date
and may be renewed for successive ten-year periods.
40 Article 153.  The owner of a registration, or any person having a legitimate interest, shall apply to the
competent national office for renewal of the registration within six months prior to its expiry.  Nevertheless,
both the owner of the registration and any person having a legitimate interest shall be allowed a period of grace
of six months following the expiry date of the registration within which to apply for renewal.  To that end proof
of payment of the prescribed fees shall be filed and the corresponding surcharge shall be paid at the same timewhere the domestic provisions of country Members permit.  During the period in question the registration of themark shall remain in full force.
For the purpose of renewal there shall be no requirement of proof of use of the mark, and it shall be
renewed automatically on the same terms as the original registration.  The owner may, however, reduce or limit
the goods or services specified in the original registration.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 33
D. GEOGRAPHICAL INDICATIONS
14. Please explain whether or not your tr ademark registration authority refuses a
trademark application if it contains a geographical indication.
Decision 486 only includes among its prohibitions relating to marks the absolute grounds set
out in Article 13541, subparagraphs (j), (k) and (l) of which refer specifically to geographical
indications.
Pursuant to these prohibitions, the competent national authority has the legal power to reject
any application for registration of a mark containing geographical indications that meets the
conditions specified in the aforementioned subparagraphs, all of which relate to the risk of confusion.This leads to the conclusion that trademark rights may be vested in a geographical name provided that
it does not create confusion.
15. Please give the definition of a geographical indication in your legislation.
Under the Common Industrial Property Regime – Decision 486 – the term geographical
indication is used generically in a broad sense to cover both appellations of origin and indications of
source.  In this respect, Venezuelan legislation defines and distinguishes geographical indications as
follows:
Title XII of the Decision concerns geographical indications and recognizes two categories:
appellations of origin and indications of source.
Appellations of origin:
"Article 201. – An appellation of origin shall be understood to be a geographical indication
consisting of the name of a particular country,  region or place, or of a name which, without
being that of a particular country, region or place, refers to a specific geographical area, and is
used to designate a product originating therein, the quality, reputation, or other characteristics
of which are due exclusively or essentially to the geographical environment in which it is
produced, including natural and human factors."
Indications of source:
"Article 221. – An indication of source shall be understood to be a name, expression, image,
or sign that designates or evokes a particular country, region, locality or place."
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
                                                     
41 Article 135.  Signs may not be registered as marks where they:
(…)
(j) reproduce, imitate, or contain a protected appellation of origin for the same or different goods where
use of the sign could create a risk of confusion or a ssociation with the said appellation or might constitute
misappropriation of its notoriety;
(k) contain a protected appellation of origin for wines and spirits;(l) consist of a national or foreign geographical indication liable to cause confusion with regard to the
goods or services to which it applies.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 34
There is no provision in Decision 486 of the Commission of the Andean Community that
establishes a link between the characteristics of an indication and its geographical origin because the
term "geographical indication" covers both indications of source and appellations of origin.  Under
appellations of origin, Decision 486 clearly establishes the link between the particular qualities andcharacteristics of a product and its geographical origin or the geographical area connoted by its
appellation.  In this respect, Article 201 states the following:
"Article 201. – An appellation of origin shall be understood to be a geographical indication
consisting of the name of a particular country,  region or place, or of a name which, without
being that of a particular country, region or place, refers to a specific geographical area, and is
used to designate a product originating therein, the quality, reputation, or other characteristicsof which are due exclusively or essentially to the geographical environment in which it is
produced, including natural and human factors."
17. Please describe how additional protection is granted by your legislation to wines and
spirits.  Please mention other types of products, if any, covered by this additional protection.
Article 215
42 of Decision 486 of the Commission of the Andean Community provides for a
higher level of protection or an additional system of  protection for appellations of origin for wines and
spirits following the harmonization of these rules with the TRIPS Agreement, more specifically
Article 23.
This preferential protection is also found in the trademark regime inasmuch as one of the
absolute prohibitions on trademark registration (subparagraph (k)43 of Article 135 of Decision 486)
expressly stipulates that this type of sign cannot be registered as a mark.
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in
your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of
names considered as generic in your jurisdiction.
Decision 486 includes the following exceptions allowed under Article 24 of the TRIPS
Agreement:  Article 215, second paragraph, incorporates the exception allowed by Article 24.4 of the
TRIPS Agreement; Article 202, subparagraph (b), incorporates the exception allowed by the firstsentence of Article 24.6 of the TRIPS Agreement; Article 223 incorporates the exception allowed by
Article 24.8 of the TRIPS Agreement;  and Article 219 incorporates the exception allowed by Article
24.9 of the TRIPS Agreement.
E. 
INDUSTRIAL DESIGNS
19. Please explain whether or not your legislat ion extends to the protection of designs
dictated essentially by technical or functional considerations.  Please explain how textile designs
are protected.
No, the protection granted by the legal concept of industrial design concerns the particular
appearance of a product that results from any arrangement of lines or combination of colours, or any
                                                     
42 Article 215.  Member countries shall prohibit the use of an appellation of origin that identifies wines
or spirits as products of that type which do not originate in the place designated by the said appellation of origin,
even where the true origin of the product is stated or the geographical indication is given in translation or
accompanied by expressions such as "class", "type", "style", "imitation", or the like.
43 (k) contain a protected appellation of origin for wines and spirits.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 35
two-dimensional or three-dimensional outward shape, line, outline, configuration, texture or material
that does not alter the intended use or purpose of the said product (Article 11344 of Decision 486).
Industrial designs whose appearance is dictated essentially by technical considerations or a
technical function and which do not incorporate any arbitrary contribution by the designer shall not be
registerable.
Textile designs receive the same protection as that given to any product that meets the
definition of industrial design in Article 113 of Decision 486.
According to Article 130 of Decision 486, the protection accorded to an industrial design does
not extend to elements or characteristics of the de sign dictated essentially by technical or functional
considerations, which do not incorporate any arbitrary contribution by the designer.  The protection
does not apply to the exact reproduction of such elements or characteristics as may be needed to allow
the product incorporating the design to be mechanically assembled or joined to another product of
which it is a part.  This restriction does not apply where the design is based on a particular form topermit the assembly of multiple connection of the products or their interconnection within a modular
system.
20. Please explain how your legislation protects right holders of a design against importing
of articles bearing embodied or copied designs.
According to Article 129
45 of Decision 486, the registration of an industrial design confers on
the owner the right to prohibit third parties from ma king use of the design registered.  Consequently,
the owner of the registration shall have the right to  take action against any third party who, without his
consent, manufactures, imports, offers for sale, markets, or makes commercial use of products whichincorporate or reproduce the industrial design.
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
Decision 486 does not contain any compulsory licensing regime for the legal concept of
industrial designs.
22. Please indicate for what period of time your legislation grants protection for industrial
designs.
                                                     
44 Article 113.  The particular appearance of a product that results from any arrangement of lines or
combination of colours, or any two-dimensional or three-dimensional outward shape, line, outline,
configuration, texture or material that does not alter the intended use or purpose of the said product shall beconsidered an industrial design.
45 Article 129.  Registration of an industrial design shall confer on the owner thereof the right to
prohibit third parties from making use of the design concerned.  By virtue of that prohibition, the owner of theregistration shall be entitled to take action against any third party who, without his consent, manufactures,imports, offers for sale, markets, or makes commercial  use of products that incorporate or reproduce the
industrial design.
Registration shall likewise confer the right to take action against any person who produces or markets a
product the design of which differs in only minor resp ects from the protected design or the appearance of which
is the same.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 36
Article 12846 of Decision 486 provides for a term of protection of ten years for industrial
designs, counted from the date of filing of the application in Venezuela.
F. PATENTS
23. Please describe how your legislation defines the notions of:  novelty, inventiveness and
industrial application.
Pursuant to Article 1647 of Decision 486, an invention shall be considered new when it is not
included in the state of the art.
According to Article 1848 of Decision 486, an invention shall be considered as involving an
inventive step if, for a person in the trade with av erage skills in the corresponding technical field, the
invention is neither obvious nor obviously derived from the state of the art.
An invention shall be considered capable of industrial application if its subject-matter can be
produced or used in any kind of industry, meaning any productive activity, including services, inaccordance with Article 19
49 of Decision 486.
24. Please explain whether or not in your legislat ion, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions a re provided for, please describe in detail how
these exclusions are applied in legal as well as practical terms.
Exclusions from patentability are covered by Articles 1550 and 2051 of Decision 486 of the
Andean Community.
                                                     
46 Article 128.  The registration of an industrial design shall have a term of ten years, counted from the
date of filing of the application in the country Member.
47 Article 16.  An invention shall be considered new when it is not included in the state of the art.
The state of the art comprises everything that has been made accessible to the public by written or oral
description, use, marketing, or any other means prior to the filing date of the patent application or, where
appropriate, the recognized priority date.
Solely for the purpose of determining novelty, the contents of a patent application pending before the
competent national office and having a filing or priority date earlier than the filing or priority date of the patentapplication under consideration shall likewise be considered  part of the state of the art, provided that the said
contents are included in the earlier application when it is published or where the period provided for in
Article 40 has elapsed.
48 Article 18.  An invention shall be regarded as involving an inventive step if, for a person in the trade
with average skills in the technical field concerned, the said invention is neither obvious nor obviously derived
from the state of the art.
49 Article 19.  An invention shall be regarded as industrially applicable when its subject-matter may be
produced or used in any kind of industry, meaning any productive activity, including services.
50 Article 15. – The following shall not be considered inventions:
(a) Discoveries, scientific theories, and mathematical methods;(b) all or part of living beings, as found in nature, natural biological processes, and biological material,
as existing in nature or which may be isolated, including the genome or germ plasm of any living being;
(c) literary and artistic works or any other work protected by copyright;
(d) plans, rules, and methods for the pursuit of intellectual activities, the playing of games, or the
conduct of economic and business activities;
(e) computer programs and software, as such;  and,(f) methods of presenting information.
51 Article 20.   The following shall not be patentable:
(a) Inventions whose commercial exploitation within the territory of the respective country Member
must be prevented in order to protect public order or morality.  To that end, the commercial exploitation of anIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 37
25. Please explain whether your legislation prov ides for the exclusion of inventions from
patentability based on ordre public  or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Article 20(a) of Decision 486 excludes from patentability inventions whose commercial
exploitation in Venezuela must be prevented in order to protect public order or morality.
26. Please explain whether or not diagnostic, therapeutic and surgical methods are excluded
from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
Article 20(d) of Decision 486 excludes from patentability inventions that concern therapeutic
or surgical methods for the treatment of humans or animals, as well as diagnostic methods applied to
humans or animals.
27. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
Plants, animals and essentially biological proc esses for the production of plants and animals,
are excluded from patentability in accordance with Article 20(c) of Decision 486.  At the same time,
Article 15(b) of Decision 486, provides that natural biological processes are not considered
inventions, pursuant to Article 27.3 of the TRIPS Agreement.
28. Please describe how and under what provisions micro-organisms, non-essentially
biological processes and plant varieties are protected  in your legislation.  Please explain, in this
respect, the relevant sections of your legislation.
The second transitional provision of Decisi on 486, states that micro-organisms shall be
patentable (provided that they are not material existing in nature – Article 15(b)).  The protection of
plant varieties is covered by Decision 345 of the Andean Community.
Non-biological and microbiolo gical processes are patentable (provided that they are not
natural biological processes – Article 15(b)) pursuant to Article 14 of Decision 486.
29. Please explain how your legislation protects  patent right holders against the importing
and against the offering for sale of a protected invention.
                                                                                                                                                                    
invention shall not be deemed contrary to public order or morality merely because the exploitation is prohibited
or regulated by a legal or administrative provision;
(b) inventions whose commercial exploitation within the respective country Member must be prevented
in order to protect human or animal life or health or to preserve plant life or the environment.  To that end, the
commercial exploitation of an invention shall not be deemed contrary to human or animal life or health or to thepreservation of plant life or the environment merely because  the exploitation is prohibited or regulated by a legal
or administrative provision;
(c) plants, animals, and essentially biological processes for the production of plants or animals other
than non-biological or microbiological processes;
(d) therapeutic or surgical methods for the treat ment of humans or animals, and also diagnostic
methods applied to human beings or animals.
Article 21.  Products or processes already patented and included in the state of the art within the
meaning of Article 16 of this Decision may not form the subject-matter of a new patent merely on account of
having been put to a use different from that originally provided for in the first patent.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 38
Subparagraph (a)(ii) of Article 5252 of Decision 486 provides that the owner of a patent has
the right to prevent third parties not having his consent from offering for sale, selling or using the
product, or importing it for any of these purposes.
30. Please state if your legislation provides for patent product protection of pharmaceutical
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference.
Article 1453 of Decision 486 provides for the granting of patents for any inventions, whether
processes or products.  This naturally includes agricultural and pharmaceutical products, provided that
they are new, involve an inventive step and are capable of industrial application.
31. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
Yes, pursuant to Article 14 of Decision 486, which provides that:
"Article 14. – The country Members shall grant patents for inventions, whether products or
processes, in all fields of technology, provided that they are new, involve an inventive step,
and are capable of industrial application."
32. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prior informed consent to its use).  If such
additional conditions exist, please point out the relevant legislation and describe the additional
conditions in detail.
In harmony with the National Constitution of the Bolivarian Republic of Venezuela
(Articles 124 and 127), Article 26(h) and (i) of D ecision 486 impose on country Members of the Andean
Community the obligation to ensure that the protec tion granted to industrial property safeguards and
respects the biological and genetic resources of indigenous, Afro-American or local communities, as
well as their traditional knowledge.
Article 26(h) states that, where applicable, a copy of the contract for access must be submitted if
the products or processes for which a patent applica tion is being filed have been obtained or developed
from genetic resources or products derived therefrom, originating in any of the country Members.
Article 26(i) provides that, where applicable, a copy of the document certifying the licence or
authorization to use the traditional knowledge of indigenous, Afro-American or local communities in the
country Members must be submitted where the pr oducts or processes whose protection is being
                                                     
52 Article 52.  The patent shall confer on its owne r the right to prevent third parties not having his
consent from carrying out any of the following acts:
(a) Where the patent claims a product:
(i) manufacturing the product;(ii) offering for sale, selling, or using the product; or importing it for any of those purposes;  and
(b) where the patent claims a process:
(i) using the process;  or(ii) carrying out any of the acts mentioned under subparagraph (a) above in relation to a productobtained directly by that process.
53 Article 14. The country Members shall grant patents for inventions, whether products or processes, in
all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial
application.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 39
requested have been obtained or developed on the ba sis of knowledge originating in any of the country
Members, pursuant to the provisions of Decision 391, and the amendments and regulations thereto in
effect.
The provisions of subparagraphs (h) and (i) of Article 26 of Decision 486 lay down the legal
requirements for granting a patent.  Like other requ irements for the granting of a patent, these are not
dealt with in the TRIPS Ag reement but come within the purview of the domestic legislation of the WTO
Members.
33. Please explain whether or not your legislatio n provides for compulsory licensing.  If so,
please explain in detail the conditions under which a compulsory licence may be granted.  Inparticular, please explain how your national legislation considers individual merits in the
authorization of such use.
Yes, the compulsory licensing regime is covered by Articles 61 to 69 of Decision 486, which
read as follows:
Article 61.  On the expiry of a period of three years following the grant of the patent, or four
years following the application for the patent, whichever is the longer, the competent national office
may grant a compulsory licence for the industrial manufacture of the product to which the patent
relates, or for the full use of the patented process, at the request of any interested party, but onlywhere, at the time of the request, the patent has not been worked as provided in Articles 59 and 60 in
the country Member in which the licence is applied for, or where the working of the invention has
been suspended for more than a year.
The compulsory licence shall not only be granted if the owner of the patent provides
legitimate reasons for his failure to act, which may be reasons of force majeure, in accordance with
the domestic provision of each country Member.
The compulsory licence shall only be granted where the person who requests it has previously
attempted to obtain a contractual licence from the owner of the patent on reasonable commercial
terms and conditions, and where that attempt has not had any effect within a reasonable time.
Article 62.  The grant of compulsory licences referred to in the foregoing Article shall
proceed subject to notification of the owner of the patent in such a way that, within the following 60
days, he may present his arguments if he sees fit.
The competent national office shall determine the scope or extent of the licence, and in
particular shall specify the period for which it is granted. its subject matter, the amount of the royalties
and the conditions for the payment thereof.  The said royalties shall be adequate, depending on the
particular circumstances of each case, due regard being had especially to the economic value of the
authorization.
A challenge to the compulsory licence shall not prevent exploitation or have any effect on
periods that have not expired.  Its introduction shall not prevent the owner of the patent from
charging, in the intervening period, the royalties specified by the competent national office in respect
of the part not challenged.
Article 63.  At the request of the owner of the patent or the licensee, the licensing conditions
may be altered by the competent national office where new circumstances dictate, and in particular
where the owner of the patent grants another license on terms more favourable than those previously
granted.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 40
Article 64.  The licensee shall be bound to exploit the invention within a period of two years
following the date of grant of the licence, unless he justifies his inaction with a claim of unforeseen
circumstances or force majeure. If he fails to do so, the competent national office shall revoke thecompulsory licence at the request of the owner of the patent.
Article 65.  On a declaration by a country Member of the existence of public interest,
emergency or national security considerations, and only for as long as those considerations obtain, the
patent may be made subject to compulsory licensing.  In that case the competent national office shall
grant such licences as may be applied for.  The owne r of the patent so licensed shall be notified where
reasonably possible.
The competent national office shall specify the scope or extent of the compulsory licence, and
in particular the term for which it is granted, its subject matter and the amount of royalties and the
conditions for the payment thereof.
The grant of a compulsory licence for reasons of public interest shall not diminish the right of
the owner of the patent to continue to work the said patent.
Article 66.  The competent national office shall, either ex officio or at the request of a party,
and after having obtained the consent of the national authority on free competition, grant compulsory
licences where practices are noted that adversely affect free competition, especially an abuse by the
owner of the patent of his dominant position on the market.
In such cases, when the amount of royalties is determined, due regard shall be given to the need to
correct anti-competitive practices.
The competent national office shall refuse to revoke the compulsory licence where it is
probable that the circumstances that gave rise to it could recur.
Article 67  The competent national office shall grant a licence at any time where it is applied
for by the owner of a patent the working of which requires the use of another, and where the said
owner has been unable to secure a contractual license on reasonable terms.  Such a licence shall,without prejudice to the provisions of Article 68, be subject to the following:
(a) The invention claimed in the second patent must embody substantial technological
progress in relation to that claimed in the first;
(b) the owner of the first patent shall have the right to a cross-licence on reasonable terms
for exploitation of the invention claimed in the patent; and
(c) the licence under the first patent may not be assigned without assignment also of the
second.
Article 68.  Compulsory licences shall be subject to the foregoing in addition to the foregoing
provisions:
(a) They shall not be exclusive, and no sublicence may be granted;(b) they may only be transferred with the part of the enterprise or its intangible assets that
enable them to be worked; the transfer shall be evidenced in writing and registered
with the competent national office. Failing this they shall be devoid of legal effect;IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 41
(c) they may be revoked. Subject to the adequate protection of the legitimate interests of
persons who have been authorized under them. where the circumstances that gave rise
to them no longer obtain and are unlikely to recur;
(d) their scope and duration shall be limited according to the purposes for which they
have been granted;
(e) in the case of patents for invention that protect semiconductor technology, the
compulsory licence shall be granted only for public. non-commercial use or to
remedy or rectify a practice declared contrary to free competition by the competent
national authority under Articles 65 and 66;
(f) they shall provide for adequate remuneration according to the circumstances of each
case, due regard being had to their economic value, without prejudice to the
provisions of Article 66;  and
(g) their use shall be mainly to supply the domestic market.
Article 69.  Compulsory licences that do not conform to the provisions of this Chapter shall
be devoid of legal effect.
34. Please explain how your legislation explicitly ensures that a proposed user has made
efforts to obtain authorization from the righ t holder on reasonable commercial terms and
conditions and that such efforts have not been successful within a reasonable period of time.  In
this context, how do you define "reasonable period of time"?  Please also explain how your
legislation ensures that the use of a compulsory  licence shall be author ized predominantly for
the supply to the domestic market of the Member authorizing such use.
At present, there is no established definition of the term "reasonable period of time", because
only one request has been made for a compulsory licence in Venezuela, and it was subsequently
abandoned.
35. Please state if your legislation grants addi tional protection for innovations after the
20 years of patent protection has lapsed.
Decision 486 does not provide for an additional period of protection beyond the 20 years laid
down in Article 50.
36. Please explain how your legislation provides for the enhanced protection of patents or
patent applications pending on 1 January 1995.
Decision 486 does not provide for any additional protection.
37. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Decision 486 provides for the reversal of the burden of proof for process patents in
Article 240.54
                                                     
54 Article 240.  In cases of alleged infringement of a patent whose subject-matter is a process for
obtaining a product, the defendant in question shall be responsible for proving that the process used by him to
obtain the product is different from the process protected by the patent allegedly infringed.  To that end it shallIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 42
38. Please explain the consequences for the patent applicant if he does not submit the
information requested under Article 29.1 of the TRIPS Agreement.
For purposes of admissibility for processing and assignment of a filing date, one of the
essential requirements applicable to a patent application is the "description" that must be submitted
pursuant to Article 33 of Decision 486 of the Andean Community:
"Article 33.  The date of receipt of the application by the competent national office shall be
considered the filing date thereof, provided that it contains at least the following at the time of
receipt:
(a) A mention that the grant of a patent is applied for;
(b) the particulars identifying the applicant or the person filing the application, or
which enable the competent national office to communicate with that person;
(c) a description of the invention;
(d) drawings, if they are relevant;  and(e) proof of payment of the prescribed fees.
Failure to comply with any of the requirements specified in this Article shall cause the
competent national office to reject the application for processing and no filing date shall be
assigned to it."
If the description is submitted, the competent national office shall carry out an examination of
form within the following thirty (30) days.  The applicant shall be required to remedy any deficiency
found in the application.  If the applicant fails to do so, the application shall be considered to have
been abandoned and shall lose its priority. In that event, the competent national office shall ensure
that the information in the application remains confidential, in accordance with Articles 38 and 39 ofDecision 486 of the Andean Community.
In the course of processing the application, the competent national office may request
clarification regarding the description submitted and the applicant shall respond, on penalty of
rejection of the patent application, as provid ed in Article 45 of Decision 486 of the Andean
Community.
                                                                                                                                                                    
be presumed, in the absence of proof to the contrary, that any identical product produced without the consent of
the owner of the patent has been obtained by the patented process if:
(a) The product obtained using the patented process is new; or
(b) there exists a reasonable possibility of the id entical product having been manufactured using the 
process, and the owner of the patent for the latter is unable to establish, after a reasonable effort, what process was actually used.
In the submission of proof to the contrary, due regard shall be had to the legitimate interests of the
defendants or accused with respect to the protection of his business secrets.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 43
39. Please explain whether or not in your legisl ation patents or otherwise patent rights are
enjoyed without any exclusions or exceptions.   If exclusions or exceptions (other than
compulsory licences) are provided for, please desc ribe in detail how these exclusions are applied
in legal as well as practical terms.  If affirmative, please make a reference to relevant legislation.
According to Articles 53 and 54 of Decision 486 of the Andean Community, in addition to the
limitations imposed under the compulsory licensing re gime (Articles 61 to 69 of the Decision), the
patent owner is not entitled to prohibit the act of marketing, in the broadest sense of the term, by third
persons not having his consent, if the product has been placed on the market for the first time by the
owner, or to prevent them using the patented process or the product in private circles, for
experimental purposes, or for teaching, scientific research or non-commercial purposes.
"Article 53.  The owner of the patent may not ex ercise the right referred to in the foregoing
Article in relation to the following acts:
(a) Acts performed in a private circle for non-profit-making purposes;(b) acts performed for exclusively experimental purposes on the subject matter of
the patented invention;
(c) acts performed solely for the purposes of teaching or scientific or academic
research;
(d) acts referred to in Article 5 ter of the Paris Convention for the Protection of
Industrial Property;
(e) where the patent protects biological material, that can be reproduced, other
than plants, using that material as the basis with which to obtain viable new
material, except where to do so requires repeated use of the patented subject-
matter."
Article 54. The patent shall not give the right to prohibit a third party from engaging in
commercial acts in relation to a product protected by the patent after that product has been brought on
to the market in any country by the owner of the patent, or by another person who has obtained his
consent or is economically associated with him.
For the purposes of the foregoing paragraph, two persons shall be considered economically
associated where one can directly or indirectly exercise a decisive influence on the other concerningthe working of the patent, or where a third party can exercise such an influence on both.
Where the patent protects biological material, that can be reproduced, the patent shall not
extend to the biological material obtained by reproduction. multiplication or propagation of the
material that has been brought on to the market in accordance with the first paragraph above, providedthat the reproduction, multiplication or propagation was necessary so that the material might be used
to achieve the purposes for which it was brought on to the market, and provided that the material
derived from such use is not used for multiplication or propagation purposes.
40. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
See the reply to question 37.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 44
G. LAYOUT -DESIGNS OF INTEGRATED CIRCUITS
41. Please describe how your legislation protects topographies.
Decision 486 of the Commission of the Andean  Community, following the guidelines laid
down in the TRIPS Agreement, treats layout-designs of integrated circuits as a special legal concept
and regulates them under Title IV in eight Chapters (Articles 86-11255) entitled:   Definitions;  On the
                                                     
55 Chapter I
Definitions
Article 86.  For purposes of this Title:
(a) "integrated circuit" means a product, in its final or an intermediate form, in which the
elements, at least one of which is an active element, and some or all of the interconnectionsare an integral part of the body or surface of  a piece of material, and which is intended to
perform an electronic function;
(b) "layout-design" means the three-dimensional disposition, however expressed, of the elements,
at least one of which is an active element, and the interconnections of an integrated circuit, orsuch a three-dimensional disposition prepared for an integrated circuit intended formanufacture.
Chapter II
Requirements for the Protection of Layout-Designs of Integrated Circuits
Article 87.  A layout-design shall be protected where it is original.
A layout-design shall be considered original when it is the result of intellectual effort on the part of its
creator and is not commonplace in the integrated circuit industry.
Where a layout-design consists of one or more elements that are commonplace in the integrated circuit
industry, it shall be considered original if the combination of those elements, as a whole, meets that condition.
Chapter III
Owners
Article 88.  The right to the registration of the layout-design of an integrated circuit shall belong to its
designer. That right may be transferred by inter vivos  transaction or by succession.
Where the layout-design has been designed by two or more persons working together, the right to
protection shall belong to them jointly.
Where the layout-design has been created under a co mmission contract or service contract entered into
for that purpose, or in the course of employment relations where the designer has that among " his duties, theright to protection shall belong to the person who contracted for the work or service, or to the employer, unlessotherwise provided by contract.
Chapter IV
The Application for Registration
Article 89.  The application in respect of the layout-design of an integrated circuit shall be filed with
the competent national office and shall contain the following:
(a) The request;(b) a copy or drawing of the layout-design and, where the integrated circuit has been
commercially exploited, a specimen thereof;
(c) where applicable, a declaration stating the date of first commercial exploitation of the
integrated circuit anywhere in the world;
(d) where applicable, a declara tion stating the year of creation of the integrated circuit;
(e) a description that defines the electronic functio n that the integrated circuit incorporating the
layout-design has to perform;
(f) a copy of any application for registration or any title of protection that may have been filed or
obtained abroad by the same applicant or his principal and which refers entirely or partly to
the same layout-design as that for which the application is being filed in the country Member;
(g) any powers of attorney that may be necessary;  and(h) proof of payment of the prescribed fee.Article 90.  If the request in the application for registration of the layout-design of an integrated circuit
shall be set down on a form and shall contain the following:IP/Q/VEN/1, IP/Q2/VEN/1,
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(a) The request that registration be granted;
(b) the name and address of the applicant;
(c) the nationality or domicile of the applicant.  Where the applicant is a legal entity, its place of
incorporation shall be specified;
(d) the name and domicile of the designer of the layout-design where he is not the applicant;(e) where applicable, the name and address of the legal representative of the applicant;(f) where applicable, the date, number and office so  of filing of any application for registration or
other title of protection that may have been filed or obtained abroad by the same applicant or
his principal and which refers entirely or partly to the same layout-design for which theapplication is filed in the country Member;  and
(g) the signature of the applicant or of his legal representative.Article 91.  Where the layout-design for which registration is sought includes a trade secret, the
applicant shall file, in addition to the requisite graphic representation, a representation of the layout-design in
which the parts containing the said secret have been omitted, erased or obliterated.  The remaining parts must be
sufficient for the identification of the layout-design to be possible in all cases.
Article 92.  The date of receipt of the application by the competent national office shall be considered
the filing date thereof provided that, at the time of  receipt, it contained at least the following elements:
(a) An express statement or indication that the registration of a layout-design is applied for;(b) the particulars identifying the applicant or the person filing the application, or that will enable
the competent national office to communicate with that person;
(c) a graphic representation of the layout-design for which registration is sought;(d) proof of payment of the prescribed fee.
Failure to comply with any of the requirements specified in this Article shall cause thecompetent national office to rega rd the application as not having been accepted for processing.
and no filing date shall be assigned to it.
Chapter V
Processing of the Application
Article 93.  The competent national office shall examine whether the subject matter of the application
constitutes a layout-design according to the definition in Article 86, and whether the application includes the
elements specified in Articles 89, 90 and 91.  The competent national office shall not examine the originality of
the layout-design ex officio except where a reasoned opposition has been filed.
Where any omission or defect is noted, the appli cant shall be informed so that he may make the
necessary correction within a period of three months, with the warning that otherwise the application will beconsidered abandoned and he shelved ex officio.  Wher e the applicant fails to make the correction in the time
specified, the competent national office shall act on the warning in the form of a reasoned resolution.
Article 94.  When the application has been examined , the competent national office shall direct that it
be announced by the publication of a notice in the relevant official journal at the expense of the person
concerned.
The relevant provisions on applications for patents for invention shall be applicable to the publication
of the notice.
Article 95.  Any interested party may file a reasoned opposition with the competent national office,
including such information or documents as may be useful in ascertaining the registrability of a layout-design.
The relevant provisions on applications for patents for invention shall be applicable to the
opposition.Article 96.Where the prescribed requirements have  been complied with, the competent national office
shall register the layout-design and issue a certificate of registration which shall reproduce the particulars
contained in the corresponding register entry.
Chapter VI
Rights Conferred by Registration
Article 97.  Where the layout-design has been commercially exploited anywhere in the world, the
application for registration shall be filed w' within the competent national office of the country Member within a
period of two years following the date of first commercial exploitation of the layout-design.  If the application isfiled after that period has expired, registration shall be refused.
A layout-design that has not been commercially exploited anywhere in the world may only be
registered if an application is filed with the competent national office of the country Member within a period ofIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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15 years from the last day of the year in which the layout -design was created. If the application is filed after that
period has expired. registration shall be refused.
Article 98.  The exclusive rights in a registered layout-decision shall have a term of 10 years from the
earliest of the following dates:
(a) The last day of the year in which the first commercial exploitation of the layout-design
occurred anywhere in the world;
(b) the date on which the application for registration was filed with the competent national office
of the country Member concerned.
The protection of a registered layout-design shall lapse in any event on the expiry of a period of 15
years from the last day of the year in which the layout-design was created.
Article 99.  Protection shall apply regardless of whether the integrated circuit incorporating the
registered layout-design is contained in an article, and regardless of whether the layout-design has beenincorporated in an integrated circuit.
The registration of the layout-design of an integrated circuit shall confer on its owner the right to
prohibit third parties from engaging in any of the following acts:
(a) Reproducing. by incorporation in an integrated  circuit or any other way. all or part of the
protected layout-design that meets the condition of originality under Article 87;
(b) marketing, importing, offering for sale. selling or otherwise distributing the protected layout-
design or an integrated circuit incorporating it;
(c) marketing, importing, offering for sale, selling or otherwise distributing an article in which the
protected integrated circuit is incorporated, but only to the extent that it still contains anunlawfully reproduced layout-design.
The protection conferred by registration shall relate only to the layout-design itself, and shall not
extend to any concept, process, syst em, technique or information that is coded or incorporated in the layout-
design.
Article 100.  The rights conferred by registration of the layout-design may only be asserted against acts
performed for industrial or commercial purposes.  Registration shall not confer the right to prevent the followingacts:
(a) Those performed in a private circle for non profit-making purposes;(b) those performed solely for the purposes of evaluation, analysis or experimentation;
(c) those performed solely for the purposes of teaching or scientific or academic research;
(d) those referred to in Article 5 ter of the Paris Convention for the Protection of Industrial
Property.
Article 101.  Registration of a layout-design shall not confer the right to prohibit a third party from
engaging in commercial acts in relation to protected layout -designs, the integrated circuits that incorporate them
or articles that contain such integrated circuits as fr om the time at which they have been brought on to the
market in any country by the owner or by another person with his consent or economically linked to him.
For the purposes of the foregoing paragraph. two persons shall be understood to be economically
linked where one may directly or indirectly exert a decisive influence on the other with the respect to
exploitation of the protected layout-design, or where a third party can exert such an influence on both persons.
Article 102.  The owner of the registration of a layout-design may not prohibit a third party from
engaging in acts of industrial or commercial exploitation in relation to a layout-design created by a third party as
a result of evaluation or analysis of the protected layout-d esign, provided that the la yout-design so created meets
the condition of originality provided for in Article 87.  He likewise may not prevent such acts in relation to theintegrated circuit: that incorporate the layout-design so created, meets the condition of originality provided forin Article 87.  He likewise may not prevent such acts in relation to the integrated circuits that incorporate thelayout-designs so created, or articles in corporating such integrated circuits.
Article 103.  The owner of the registration of a layout-design may not prohibit a third party from
engaging in the acts mentioned in Article 99 in relation to  another original layout-design created independently
by a third party, even where it is identical.
Article 104.  It shall not be considered an infringement of the rights in a registered layout-design when
one of the acts referred to in Article 99 is performed in relation to an in integrated circuit that unlawfullyincorporates a layout-design, or an article containing that  integrated circuit where the person who made them did
not know, and had no reasonable means of knowing, that the layout-design had been reproduced unlawfully.
From the time at which that person is informed of the unlawfulness of the layout-design, he may continue toengage in the said act in relation to goods still in his po ssession or on order since before that time, but, at theIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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request of the owner of the registration, he shall pay compensation equivalent to a reasonable royalty based on
that which he would have paid for a contractual licence.
Article 105.  A layout-design registration that has been granted or is pending may be transferred by
inter vivos transaction or by succession.
Any transfer of the layout-design registration sha ll be registered with the competent national office.
Failure to register shall cause the transfer to be unenforceable
against third parties.
For the purposes of registration, the transfer shall be evidenced in writing.
Any interested party may apply for registration of a transfer.
Chapter VII
Licensing
Article 106.  The owner of a layout-design registration that has been granted or is pending may license
one or more third parties to exploit the layout-design concerned.
Any licence for the exploitation of the layout-desig n shall be registered with the competent national
office.  Failure to register shall cause the licence to be unenforceable against third parties.
For the purposes of registration, the licence shall be evidenced in writing.Any interested party may apply for registration of a licence.When any change occurs with respect to the name or address of the owner of the registration of a
layout-design in the course of the term of the contract, the owner of the registration shall inform the competent
national office accordingly.  If that is not done, any no tification made according to the particulars appearing in
the register entry shall be deemed valid.
Article 107. In the event of failure to exploit or for reasons of public interest, especially national
emergency, public health or national security, or in order to remedy an anti-competitive practice, the competentauthority may, at the request of an interested pa rty or competent authority, direct at any time:
(a) That a layout-design that is registered or pending shall be used or exploited industrially or
commercially by a State agency or by one or more persons under public or private law whohave been designated for the purpose; or
(b) that such layout-design shall remain open to the grant of one or more compulsory licences, in
which case the competent authority shall gran t a licence to any person applying therefor,
subject to established conditions.
The conditions laid down for the grant of compulsory licences for patents shall be applicable to the
grant of a compulsory licence in relation to a layout-design.
Chapter VIII
Invalidity of Registration
Article 108.  The competent national authority shall decree ex officio or at the request of a party at any
time, the absolute invalidity of the registration of a layout-design where:
(a) The subject-matter of the registration does not constitute a layout-design within the meaning
of Article 86;
(b) the registration does not meet the protection requirements provided for in Article 87;(c) the registration has been granted for a layout-design field after the expiry of one of the periods
specified in Article 97;  or
(d) the causes of absolute invalidity laid down in  national legislation for administrative acts are
present.
Where the causes referred to above affect only pa rt of the registered layout-design, invalidity
shall be declared only in respect of that part, as a ppropriate, and the registration shall remain in force with
respect to the other party, provided that they comply as  a whole with the requirement of originality laid down in
Article 87;
The layout-design or part thereof that has been inva lidated shall be deemed null and void as from the
filing date of the application for registration.
Article 109.  The defects in administrative acts that have not brought about absolute infinity under the
foregoing Article shall result in relative invalidity.  In such cases the competent national authority shall declaresuch invalidity.  In such cases the competent national authority shall declare such invalidity within the followingfive years counted from the date of the grant of registration, as provided in national legislation.
Article110.  The competent national authority may cancel a layout-design registration when it has been
granted to a person not entitled to it.  The action form cancellation may only be brought by the person to whom
the right to registration does belong.  Such action shall be barred five years following the date of grant of theIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 48
Requirements for Protection of Layout-designs of Inte grated Circuits;  On the Right Holders;  On the
Application for Registration;  On the Processing of the Application;  On the Rights conferred by
Registration;  On the Licensing System;  On the Invalidation of the Registration.
42. Please explain what protection your national  legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies,
including integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
Article 99 of Decision 486 cited above gives the owner of a protected layout-design the right
to prevent third persons from carrying out the following acts:  reproducing through incorporation in anintegrated circuit all or part of the protected layout-design, provided that the part in question meets the
requirement of originality;  marketing, importing, offering for sale, selling or otherwise distributing:
(1) the protected layout-design; (2) an integrated circuit incorporating
 the design;  and (3) an article
incorporating the integrated circuit if it contains a layout-design unlawfully incorporated.
43. Please explain how your legislation provides for the derogation from Article 36 of the
TRIPS Agreement, as specified in Article 37 of the TRIPS Agreement, where a person has no
knowledge or reasonable grounds to know when acquiring an integrated circuit or an article
incorporating such an integr ated circuit that it contains an unlawful topography.
In conformity with Article 37 of the TRIPS Agreement, Article 10456 of Decision 486
provides for that exception.
                                                                                                                                                                    
registration or two years following the date on which the person to whom the right belongs became aware of the
marketing of the product incorporating the layout-design in the country Member, whichever period expires first.
Article 111.  The national authority competent to hear cases of invalidity shall notify the owner of the
registration in order that he may present such arguments and submit such evidence as he considers fit.
Where under the domestic legislation of a country Member that authority is the competent national
office, the arguments and evidence referred to in the foregoing Article shall be presented within the two months
following notification.
Before the period provided for in the foregoing Article expires, the person concerned may apply for an
extension for two further months.
On the expiry of the periods referred to in this Article, the competent national office shall rule on the
invalidity of the registration, and the ruling shall be notified to the parties in a resolution.
Article 112.    Where necessary to rule on the invalidity of a registration, the competent national
authority may request the owner of the registration to submit one or more of the documents referred to in Article
89 that relate to the registration to which the proceedings themselves relate.
56 Article 104.  Performance of any of the acts referred to in Article 99 in respect of an integrated
circuit incorporating an unlawfully reproduced layout-des ign or any article incorporating such an integrated
circuit shall not be considered an infringement of the ri ghts in a registered design, where the person performing
such acts did not know, and had no reasonable means of knowing, that the layout-design had been reproducedunlawfully.  From the time that person is informed of the unlawfulness of the layout-design, he may continue toperform those acts with respect to goods still in stock or on order since before that time, but, at the request of theowner of the registration, he shall pay compensation equivalent to a reasonable royalty based on what he wouldhave to pay for a contractual licence.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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44. Please state the term of protection granted by your legislation to topographies.
Pursuant to Article 98 of Decision 486, registration gives the owner rights in a layout-design
for a term of ten (10) years from the earliest of the following dates:  the last day of the year in which
the design was first commercially exploited anywhere in the world;  or the date on which theapplication for registration was filed with the co mpetent national authority in the Member Country;
nevertheless, a layout-design shall lapse fifteen (15) years after the last day of the year in which it was
created (Article 97 of the Decision).
H. 
PROTECTION OF UNDISCLOSED INFORMATION
45. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
No, Article 26357 of Decision 486 provides that the protection of business secrets shall last as
long as the conditions laid down in Article 26058 persist.
46. Please explain how your legislation defines "undisclosed information".
Article 260 of Decision 486 defines business secrets as any undisclosed information in the
lawful possession of a natural or legal person that may be used in any production, industrial or
commercial activity and that is capable of being transmitted to a third party provided that the
information:
(a) Is secret in the sense that, as a whole or in the precise configuration and combination
of its elements, it is not generally known nor readily accessible to persons within the
circles that normally handle the information in question;
(b) has commercial value because it is secret;  and
(c) has been the subject of reasonable steps, on the part of the person lawfully in
possession of the information, to keep it secret.
The information constituting a business secret may relate to the nature, characteristics or
purpose of goods, to production methods or processes,  or to the means or methods of distributing or
marketing goods or supplying services.
                                                     
57 Article 263.  Protection of a business secret shall last as long as the conditions laid down in
Article 260 obtain.
58 Article 260.  A business secret shall be considered to be any undisclosed information in the lawful
possession of a natural or legal person that may be used in any productive, industrial, or commercial activity and
that is capable of being transmitted to a third party, insofar as that information:
(a) Is secret in the sense that, as a whole or in the precise configuration and combination of its
elements, it is not generally known or readily accessible to persons within the circles that
normally handle the information in question;
(b) has commercial value because it is secret;  and(c) has been the subject of reasonable steps, on the part of the person lawfully in possession of the
information, to keep it secret.
The information constituting a business secret may re late to the nature, characteristics, or purpose of
goods, to production methods or processes, or to the means or methods of distributing or marketing goods or
supplying services.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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47. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
Article 266 of Decision 486 – Common Industrial Property Regime – provides that, when
country Members require, as a condition for approving the marketing of pharmaceutical products or
agricultural chemical products that utilize new chemical entities, the submission of undisclosed test or
other data the production of which entailed a considerable effort, they shall protect such data against
any unfair commercial use.  Furthermore, country Members shall protect such data against any
disclosure, except where necessary to protect the public or unless steps are taken to ensure that the
data are protected against unfair commercial use.  Country Members may take steps to guarantee the
protection provided for in this Article.
I. ENFORCEMENT
48. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Industrial property:
1. Action for claiming ownership:  Title XIV, Article 23759 of Decision 486 – Common
Industrial Property Regime.
2. Action for infringement of rights:  Title XV, Articles 238 to 24460 of Decision 486 – Common
Industrial Property Regime.
                                                     
59 Article 237.  Where a patent or an industrial design registration has been applied for or obtained by a
person who does not have the right to it, or to the detriment of another person who also has the right to it, the
person affected may claim ownership of it before the competent national authority, and request that the pendingapplication or the rights granted be transferred to him, or that he be recognized as joint applicant for or jointowner of the said rights.
Where the registration of a mark has been applied for or obtained to the detriment of another person
who also had the right to it, the person affected may so claim before the competent national authority, requestingthat he be recognized as joint applicant for or joint owner of the said rights.
Where the domestic legislation of the country Member permits, indemnification for injury and
prejudice may also be claimed in the same action.
This action shall be barred after four years following the date of grant of the rights or two years after
the subject matter of the protection began to be exploited or used C; in the country by the person who secured
the rights, whichever period expires earlier. The action shall not be barred where the person who obtained therights applied for them in bad faith.
60 Article 238.  The owner of rights protected under this Decision may bring an action before the
competent national authority against any person who in fringes his rights. He may also proceed against any
person who engages in acts that indicate the imminence of an infringement.
Where the domestic legislation of the country Member permits, the competent national authority may
institute the infringement pro ceedings provided for in the said legislation ex officio.
In the case of joint ownership of rights, any of the joint owners may bring an action for infringement
without the consent of the others being necessary, except where otherwise agreed between the joint owners.
Article 239.  The owner of a patent shall have the right to bring legal action for injury prejudice for
unauthorized use of the invention or utility model during the period between the date on which it acquires publiccharacter and the relevant application may be consulted, and the date of grant of the patent. Compensation shallbe available only in respect of the subject matter covered by the patent granted, and shall be calculatedaccording to the exploitation actually engaged in by the defendant during the period in question.
Article 240.  In cases of alleged infringement of a patent whose subject matter is a process for
obtaining a product, the defendant in question shall be responsible for proving that the process used by him to
obtain the product is different from the process protected by the patent allegedly  infringed. To that end it shallIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 51
3. Precautionary measures:  Title XV, Chapter II, Articles 245 to 24961 of Decision 486 –
Common Industrial Property Regime.
                                                                                                                                                                    
be presumed, in the absence of proof to the contrary, that any identical product produced without the consent of
the owner of the patent has been obtained by the patented process if:
(a) The product obtained using the patented process is new; or(b) there exists a reasonable possibility of the identical product having been manufactured using
the process, and the owner of the patent for the latter is unable to establish, after reasonable
effort, what process was actually used.
In the submission of proof to the contrary, due regard shall be had to the legitimate interests of the
defendant or accused with respect to the protection of his business secrets.
Article 241. The plaintiff or the party reporting the offence may apply to the competent national
authority to have one or more of the following measures ordered, among others:
(a) The cessation of the acts constituting the infringement;
(b) indemnification for injury or prejudice;
(c) withdrawal from commercial channels of the goods resulting from the infringement, including
containers, packaging, labels. printed matter or  advertising or other material, and also the
material and means that mainly served for the commission of the infringement;
(d) prohibition of the import or export of the goods, materials or means referred to in the
foregoing subparagraph;
(e) the award of ownership of the goods, materials or means referred to in subparagraph (c), in
which case the value of the property shall be set against the amount of the indemnification forinjury and prejudice;
(f) the adoption of the necessary measures to ensure that the infringement does not continue or
recur, including destruction of the goods, materials or means referred in subparagraph (c) or
the temporary or permanent closure of the establishment of the defendant or accused; or
(g) publication of the sentence handed down agains t the infringer and notification thereof, at the
latter's expense, to all interested parties.
In the case of goods that bear a false mark, the elimination or removal of the mark shall be supported
by action intended to prevent those goods being brought into commercial channels. Those goods shall moreovernot be cleared for re-export in the same state or made subject to a different customs procedure.
Exceptions may be made in cases duly categorized by the competent national authority, or where the
express authority of the owner of the mark has been obtained.
Article 242.  Country Members may provide that, unless  the measure is disproportionate to the
seriousness of the infringement, the legal authorities may order the infringer to inform the owner of the rights of
the identity of third parties who have participated in the production and distribution of the infringing goods orservices, and of the distribution channels.
Article 243 .  For the purposes of calculating indemnification for injury and prejudice, due regard shall
be had, among other things, to the following criteria:
(a) The actual harm and the loss of revenue suffered by the owner of the rights as the result of the
infringement;
(b) the amount of the profits earned by the infringer as a result of the infringing acts;(c) the price that the infringer would have paid for a contractual licence, due regard being had to
the market value of the rights infringed and to  contractual licensees that have already been
granted.
Article 244.  Infringement actions shall be barred after two years following the date on which the
owner had knowledge of the infringement, or in any event after five years following the time at which theinfringement was last committed.
61 Article 245.  Any person who institutes or inte nds to institute proceedings for infringement may
request the competent national authority to order immedi ate precautionary measures with a view to preventing
the infringement from being committed, avoiding its cons equences, securing or preserving evidence or ensuring
the effectiveness of the action or compensation for injury and prejudice.
The precautionary measures may be requested before the action is brought, in conjunction with it or
after it has been brought.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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4. Border measures:  Title XV, Chapter III, Articles 250 to 25662 of Decision 486 – Common
Industrial Property Regime.
                                                                                                                                                                    
Article 246.  The following precautionary measures among others may be ordered:
(a) The immediate cessation of the acts constituting the alleged infringement;
(b) the withdrawal from commercial channels of the goods resulting from the alleged
infringement, including containers, packaging, labels, printed matter or advertising or othermaterial, and also the material and means that mainly served for the commission of the
infringement;
(c) the suspension of the import or export of the goods, materials or means referred to in the
foregoing subparagraphs;
(d) the provision of sufficient security by the alleged infringer; and(e) the temporary closure of the establishment of the defendant or accused, where necessary to
avoid the continuation or recurrence of the alleged infringement.
Where the national legislation of the member country permits, the competent national authority may
order the application of precautionary measures ex officio.
Article 247.  A precautionary measure shall be ordered only where the person requesting it proves his
entitlement to act and the existence of the rights infringed, and submits evidence that allows it to be reasonablyassumed that the infringement has been committed or is imminent.  The competent national authority may askthe person requesting the measure to provide sufficient security or guarantees before ordering it.
The person who requests a precautionary measure in relation to particular goods shall supply the
necessary information and a sufficiently detailed and accu rate description for the allegedly infringing goods to
be identified.
Article 248.  Where a precautionary measure has been implemented without the intervention of the
other party, it shall be notified to the party affected immediately after it has been implemented.  The affected
party may apply to the competent national authority to have the measure rescinded.
In the absence of national provisions to the cont rary, any precautionary measure implemented without
the intervention of the other party shall lapse as a right if the infringement action is not initiated within theten days following the implementation of the measure.
The competent national authority may amend, rescind or confirm the precautionary measure.
Article 249.  Precautionary measures shall apply to the products of the alleged infringement and to the
materials or means mainly used for committing it.
62 On Border Measures
Article 250.  The owner of the registration of a mark who has good reason to believe that the import or
export of goods infringing that registration is going to  take place may request the competent national authority
to suspend customs clearance.  The conditions and guarantees provided for in the domestic legislation of themember country shall be applicable to the request and to the order issued by the authority.
Any person who requests the implementation of border measures shall provide the competent national
authority with the necessary information and a description of the goods to which the alleged infringement relatesthat is sufficiently detailed and accurate for them to be recognized.
If the domestic legislation of the country Member permits the competent national authority may order
the application of border measures ex officio.
Article 251.  The competent national authority may allow the owner of the mark to substantiate his
allegations by taking part in the inspection of the merchandise detained. The importer or exporter of the saidmerchandise shall have the same right.
When the inspection is conducted, the competent national authority shall make the necessary
arrangements for such confidential information as may be relevant to be protected.
Article 252.  When the applicable conditions and guar antees have been fulfilled, the competent national
authority shall order or refuse the suspension of customs clearance and shall inform the requesting patty
accordingly.
When suspension is ordered, the notification shall give the name and address of the sender, importer,
exporter and consignee;  of the merchandise, and also the quantity of that merchandise affected by thesuspension. The suspension shall likewise be notified to the importer or exporter of the goods.
Article 253.  On the expiry of 10 working days following the date of notification of the suspension of
customs clearance without the requesting party having initiated the infringement action, or without theIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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5. Acts of unfair competition:
(a) Title XVI, Chapter I, Articles 258 and 25963 of Decision 486 – Common Industrial
Property Regime;
(b) Title II, Article 1764 and Titles IV, V, VI and VII, Articles 32 to 56 of the Law on the
Promotion and Protection of Free Competition.
6. Criminal procedures:
(a) Title XV, Chapter IV, Article 25765 of Decision 486 – Common Industrial Property
Regime;
(b) Chapter VII, Articles 97 to 105 of the Industrial Property Law;
                                                                                                                                                                    
competent national office having prolonged the suspen sion, the measure shall be lifted and the customs
clearance of the merchandise detained shall proceed.
Article 254.  When the action for infringement has been initiated the party against whom the measure
has been ordered may appeal to the competent national authority. The competent national authority may amend,
revoke or confirm the suspension.
Article 255.  Once a finding of infringement has been made, the goods bearing counterfeit marks that
have been impounded by the competent national authority may not be either re-exported or subjected to a
different customs procedure except in cases duly specifi ed by the competent national authority or where the
express authority of the owner of the mark has been obtained.
Without prejudice to such other actions as may be available to the owner of the rights, and subject to
the defendant's right to appeal to a judicial authority,  the competent national authority may order the destruction
or confiscation of the infringing merchandise.
Article 256.  Small quantities of merchandise that have no commercial character and form part of the
personal baggage of travellers or are sent in small quantities shall be excluded from the application of theprovisions of this Chapter.
63 Article 258.  Any act involving industrial property that is performed in a business environment and is
contrary to proper usage and prac tice shall be considered unfair.
Article 259.  The following in particular shall be considered acts of unfair competition in connection
with industrial property:
(a) Any act capable of creating confusion, by whatever means, as to the establishment, goods or
industrial or commercial activity of a competitor;
(b) false assertions in the course of trade capable of discrediting the establishment, goods or
industrial or commercial activity of a competitor;
(c) statements or assertions the making of which in  the course of trade could mislead the public as
to the nature, method of manufacture, characteristics suitability for use or quantity of thegoods.
64 Article 17.  Trade policies aimed at the elimination of competitors through acts of unfair competition
shall be prohibited, in particular the following acts:
1. Misleading or false advertising aimed at preventing or restricting free competition;2. Promotion of products and services based on false declarations concerning the disadvantages
or risks of any other product or service of competitors;  and
3. Commercial bribery, infringement of industrial secrets and imitation of products.
65 Article 257.  Country Members shall establish criminal procedures and penalties for cases of
counterfeiting of marks.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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(c) Title VI, Chapter V, Articles 338 and 33966 of the Venezuelan Criminal Code.
Copyright
(a) Action to obtain a declaration:  Title VI, Article 10967, of the Law on Copyright,
which deals with action to obtain a judicial ruling confirming the existence of the
right claimed by the plaintiff;
(b) Action to obtain a prohibition or conviction: Title VI, Article 109, of the Law on
Copyright, which provides that the ow ner of a right who has reason to fear
infringement thereof or the persistence or recurrence of an infringement that hasalready occurred may request the court to prohibit infringement of his right by the
other person;
(c) Action for removal or destruction: Title VI, Article 110
68, of the Law on Copyright.
Chapter VIII, Article 57(c) of Decision 351 also provides for this possibility;
                                                     
66 Article 338.  Anyone who has counterfeited or altered names, marks or distinctive signs belonging to
intellectual works or to the products of any industry, and anyone who has made use of legally registered names,
marks or signs that have been so counterfeited or altered,  even if the act was carried out by a third person, shall
be liable to a term of imprisonment of one to 12 months.
The same penalty shall apply to anyone who has counterfeited or altered industrial designs or has made
use of them, even if the act was carried out by a third person.
The judicial authority may provide that the conviction be published in a newspaper that it designates, at
the expense of the infringer.
Article 339.  Anyone who, for trading purposes, has imported into Venezuela and put on sale or
otherwise circulated intellectual works or products of any industry bearing counterfeited or altered names, marks
or distinctive signs likely to mislead the consumer as to their origin or quality, if ownership of the works, marksor signs has been legally registered in Venezuela, shall be liable to a term of imprisonment of one to 12 months.
67 Article 109.  The owner of any of the exploitation rights provided for in this Law who has reason to
fear infringement of his rights or the continuation or recurrence of an infringement that has already occurred
may request the court to uphold his rights and prohibit infringement thereof by the other person, without
prejudice to any action for non-pecuniary and material  damage that he may bring against the infringer.
In order to make the prohibition effective, the court may give warning in its ruling of a fine payable if
an infringement should occur.  The court shall impose the sanction at the request of the injured party.  The fineshall not exceed the equivalent of 20 times the minimum urban wage set by the National Executive inaccordance with the Basic Labour Law, and it shall be co nvertible into detention in the proportion of Bs 500 to
one day of detention.
In the event of a second offence, the fine imposed may be doubled.
68 Article 110.  The owner of one of the exploitation rights provided for in this Law who has been
prejudiced in the exercise thereof may request the cour t to order the destruction or withdrawal of the copies
unlawfully reproduced and of the equipment used for the reproduction, insofar as the latter cannot, by their
nature, be used for the reproduction or communication of other material, without prejudice, where appropriate,
to the right to bring action for compensation for injury caused to the owner of any one of the exploitation rights
mentioned.
If part of the equipment concerned can be used for the reproduction or communication of other
material, the person concerned may demand that the part in question be separated at his expense to save it fromdestruction or removal.  If the copy or equipment whose removal or destruction is sought is of particular artistic
or scientific merit, it may not be destroyed, and the court may order ex officio that it be handed over to a public
museum.
In any event, the injured party may request that the copies or equipment whose destruction has been
ordered be awarded to him.  The court shall determine the value of the award, which shall be deducted from theestimated amount of compensation for injury caused.
The measures referred to in this Article shall be without effect on any persons who, in good faith and
for their personal use, have acquired an unlawfully reproduced copy.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 55
(d) Action for damages:  Title VI, Article 109, Article 110 and Article 64 69 of the Law
on Copyright.  Similarly Decision 351 (Common Regime for Copyright and Related
Rights) Chapter VIII, Article 57(a) and (b) authorizes the competent authorities toorder the infringer of any protected rights to pay adequate compensation for injury
caused to the plaintiff, in addition to the court costs.
49. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies against final administrative decisions.
Venezuela observes and applies the principle of dual jurisdiction under which administrative
decisions may be reviewed by the competent jurisdictional bodies.  Consequently, the Basic Law on
Administrative Procedures allows for discretionary (Article 94), and hierarchical remedies
(Article 95) and for review, but also for appeals through the administrative courts so that disputes
concerning final decisions taken by administrative  bodies can be settled through judicial channels.
Decisions taken by the Autonomous Intellectual Property Service are subject to appeals for
review before the Service itself and at a higher level before the Minister for Employment.  Decisions
taken by the latter, which exhaust administrative remedies, are subject to appeal for judicial review
before the First Court of Judicial Review, whose decision is subject to appeal before the Supreme
Court of Justice, in conformity with Articles 121 and 134 of the Basic Law on the Supreme Court of
Justice.
50. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensure
the protection of confidential information.
Venezuela's legal system provides for the "production of documents" as a means of proof,
based on Article 436 of the Code of Civil Procedure, which reads as follows:
"Article 436. - A party needing to utilize a document which it alleges to be in the possession
of the other party, may request its production.
The request for production shall be accompanied by a copy of the document or, failing that,
by a statement of the facts known to the requesting party concerning the content of the
document and evidence showing that there is at least a serious presumption that the document
is or has been in the possession of the other party.
The court shall require the other party to produce or hand over the document within a
specified period or face a penalty.
If the document is not produced within the specified time-limit and no evidence is provided to
show that it is not in the possession of the other party, the text of the document as it appears in
the copy presented by the requesting party shall be presumed to be accurate, or in its absence,
the information provided by the requesting party concerning the content of the document shall
be deemed to be correct (…)".  (Emphasis added)
                                                     
69 Article 64.  Any person who exploits a work, product or production administered by a collective
management entity without having been assigned the corresponding rights or without having been granted the
appropriate licence for use, shall pay, by way of indemnification, a charge of 50 per cent of the remunerationspecified in the tariff, applicable to the entire peri od during which the exploitation took place, provided that
there is no evidence of more serious injury in the specific case.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 56
This type of evidence can be used in both criminal and civil proceedings in Venezuela, where
the principle of freedom of evidence permits the use of any evidential means provided for in any
legislative text.
In addition to the foregoing, Article 240 of Decision 486 of the Andean Community provides
that the burden of proof shall lie with the defendant in cases of infringement of a patent on a process
for obtaining a product.  For this purpose, there is a juris tantum  presumption against the defendant,
who must prove during the proceedings that the process used to obtain the product is not the process
protected by the patent.  The protection of the defendant's business secrets must also be taken into
account.
With regard to the mechanisms for maintaining c onfidentiality, it should be pointed out that in
criminal proceedings, all investigative acts are restri cted as far as third parties are concerned, so that
only parties directly involved in the case, togeth er with the judicial authorities and the Public
Prosecutor's Office, have access to the records of the proceedings and consequently to the evidence
furnished.  Officials involved in the investigati on and persons who, for any reason, have knowledge of
the action taken thus have a duty of confidential ity (Article 313 of the Basic Code of Criminal
Procedure).
The principle of public information governs civ il proceedings;  accordingl y, all the records of
proceedings are public.  The sole exception to this principle is where the court determines otherwise for
reasons of public morality, depending on the nature of the case (Article 24 of the Code of Civil
Procedure).
51. Please quote provisions of your legislation th at authorize judges to order a defendant to
desist from an infringement.
The competent national authority may order the cessation of the acts constituting the
infringement;  the withdrawal from commercial  channels of any goods resulting from the
infringement;  a ban on the import or export of th e goods; the award of ownership of the goods;  the
adoption of the measures necessary to prevent the continuation or repetition of the infringement,
including destruction of the goods or the temporary or permanent closure of the place of businessbelonging to the defendant or the accused; publication of the sentence and notification thereof to the
interested parties at the expense of the infringer (Article 241 of Decision 486 of the Commission of
the Andean Community – Common Industrial Property Regime).
Article 110 of the Law on Copyright and Article 56 of Decision 351 of the Commission of the
Cartagena Agreement – Common Regime for Copyright and Related Rights – provide for the
destruction or withdrawal from commercial channels by any means of the infringing goods and the
materials or implements used for their reproduction.
In the area of industrial property, the same measure is provided for in Article 241 of
Decision 486 of the Andean Community – Common Industrial Property Regime.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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52. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder of adequate damages to compensate the injury he suffered.
Article 239 of Decision 486 provides that the owner of a patent may bring an action in
damages for unauthorized use of the invention or utility model during the period between the date
when it becomes public knowledge and the relevant application may be consulted and the date of
grant of the patent.
Venezuelan law, more specifically Article 1185 of the Civil Code, lays down the principle
that "Any person who intentionally or by negligen ce or imprudence, causes injury to another person
shall be obliged to provide compensation".  This is the principle of civil liability for unlawful acts
under which, once the liability of the perpetrator and the injury caused have been established,
compensation is determined according to the economic loss to the victim ( damnum emergens ) or the
loss of profits ( lucrum cessans ) resulting from the unlawful act in civil cases or from the commission
of an offence (civil action resulting from an offence) in criminal proceedings.  Along the same lines,
Article 241(b) of Decision 486 of the Andean Community – Common Industrial Property Regime –
and Article 243 thereof establish criteria for calculating damages.
The Law on Copyright also provides for action for damages (Articles 109, 110 and 64).
53. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
Venezuela's ordinary law lays down the principl e that "Any person who intentionally or by
negligence or imprudence, causes injury to another person shall be obliged to provide compensation"
(Article 1185 of the Civil Code).  This includes si tuations where damage is proved and the competent
court issues a ruling ordering the payment of a sum of money for damages, irrespective of the subject
matter of the case.  The owner of an intellectual property right is also covered by this principle.
Venezuela's judicial system lays down various regulations concerning the costs of
proceedings and attorneys' fees, which Venezuelan legislation terms "court costs".  These include the
costs incurred by each party in bringing the case to  court and the fees paid to attorneys, experts and
other professionals involved in the proceedings.  A ccording to these provisions, as a general principle,
the court will order the losing party to pay the cour t costs (Articles 274 to 287 of the Code of Civil
Procedure).
54. Please explain if and how judges have the authority to order that infringing goods are
placed outside channels of commerce or destroyed.
Courts may order the withdrawal from comm ercial channels of goods which infringe
intellectual property rights and their destruction, either as a provisional measure ordered by a court or
as a penalty following a conviction.  For example:
As regards border measures, the competent intellectual body may request the customs
authority, by means of a reasoned decision, to prevent the customs clearance of goods at any time,
provided that sufficient security is furnished to prot ect the right holder if there is any infringement, the
amount being fixed by the competent authority.
The customs authorities shall notify the owne r, importer or consignee that the goods in
question have been detained (Article 87 of the Basic Customs Law).IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 58
Community Decision 486 (Common Industrial Pr operty Regime), under Title XV (Actions
for Infringement of Rights), Chapter III (Border Measures), Articles 250 to 255, also provides for
such a procedure.
With regard to industrial property, Article 105 of the Law specifies that:
"Any coercive judgement concerning an industrial property offence shall order the destruction
of the elements that had been used or prepared  in order to commit the offence, as well as the
objects resulting from the offence."
The Law on Copyright (Article 110) provides for an action or claims to obtain the destruction
or withdrawal of unlawfully reproduced copies and of the equipment used for the unlawful
reproduction.
The judicial ruling must allow or disallow the withdrawal or destruction, but the equipment
used for the reproduction may not be destroyed if it can be used for the reproduction orcommunication of other material (Article 110).
In exceptional cases, the unauthorized copy of a work, performance or production, or the
equipment used for the offence, may have special artistic or scientific merit, in which case the court
will not order its destruction and is authorized to order ex officio that it be handed over to a publicmuseum.  Action for removal and destruction always leaves open the possibility of action for
damages.
55. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
It is not only the plaintiff or the owner of an  intellectual property right who has the right to
bring action for damages; indemnification for injury is also available to anyone who has been a victim
of the plaintiff's recklessness.  Thus, the principle laid down in Article 1185 of Venezuela's Civil
Code applies in such cases, together with the provisions mentioned in the reply to question 51.
It is also important to point out that court may require the plaintiff to deposit sufficient
security before ordering a provisional measure (Article 247 of Decision 486 of the Andean
Community).  This is a power given to courts, which may require security or a guarantee from the
plaintiff before ordering provisional measures so as to ensure that there was no reckless negligence on
the part of the plaintiff when requesting the measure.
56. Please explain how your legislation implements Article 50 of the TRIPS Agreement .
Provisional measures
JUDICIAL MEASURES
Copyright
The court may order the sequestration of anything that constitutes infringement of the right of
exploitation and seizure of the revenue accruing to th e right holder provided that evidence constituting a
serious presumption of the right claimed is fu rnished (Article 111 of the Law on Copyright).
The competent national authority may, as a precautionary measure, order the immediate
cessation of the unlawful activity;  the attachment, sequestration, impoundment or preventive seizure, asIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 59
appropriate, of the copies produced in violation of  rights, and the attachment, seizure, impoundment or
sequestration of the apparatus or materials used to  commit the unlawful act (Article 56 of Decision 351
of the Commission of the Cartagena Agreement – Common Regime for Copyright and Related Rights).
Industrial property
The following preventative measures may be ordered:  immediate cessation of all acts
constituting the alleged infringement;  withdrawal from commercial channels of any products resulting
from the alleged infringement;  suspension of the im portation or exportation of  the goods; provision by
the alleged infringer of an adequate guarantee;  a nd temporary closure of the establishment belonging to
the defendant or the accused, if necessary, to prevent continuation or repetition of the allegedinfringement (Article 246 of Decision 486 – Common Industrial Property Regime).
Suspension of the effects of the administrative act of registering a patent or mark whose
annulment has been sought may be requested, where the law so permits or such suspension is necessary
to prevent irreparable injury or injury which it w ould be difficult to repair definitively, for which
purpose the court may require an appropriate guaran tee (Article 136 of the Basic Law on the Supreme
Court of Justice).
As a provisional measure, the suspension of the e ffects of the administrative act of registering a
patent or mark may be requested before the compet ent court, under the constitutional guarantee for the
protection of rights, on the grounds of  unconstitutionality and provided that the requirements applicable
to preventative measures are met, those of colour of title and risk in delay (Article 5 of the Basic Law on
the Protection of Constitutional Rights and Guarantees).
In the matter of both cases, copyright and industrial property, any type of preventative
measure or "innominate measure" may be requested provided that the requirements laid down in the
law are met (first paragraph of Article 588 of the Code of Civil Procedure).
57. Please identify the competent authorities in your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.
It should be noted that Article 87 of the Basic Customs Law makes the customs authorities
responsible for implementing border measures, but as such measures must be requested in judicial
proceedings resulting from an investigation based on a complaint or petition, it is in fact the judicial
authorities that are competent to order them.
In the case of a criminal complaint, the comp etent court is the Criminal Court of First
Instance and, in the case of a civil petition, measures are ordered by the Court of First Instance in
Civil and Commercial Matters.
The customs authorities shall notify the owne r, importer or consignee that the goods in
question have been detained (Article 87 of the Basic Customs Law).
58. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
According to Article 250 of Decision 486 of the Andean Community – Common Industrial
Property Regime - the owner of a registered mark who has reasonable grounds for suspecting that
goods infringing the mark are to be imported or exported may request the competent national
authority to suspend customs clearance.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 60
Once infringement has been determined, any counterfeit trademarks goods that have been
seized may not be re-exported or made subject to any other customs procedure, except with the
express authorization of the owner of the mark.
Similarly, when goods have been withdrawn from the customs zone but the requirements
specified in the Law or the criteria governing their import or export have not all been met or the duties
applicable have not been paid, the National Tax Authority may seize the goods (Article 11 of the
Basic Customs Law).  This authority extends to the possibility of entering warehouses, freight yards,
offices, vehicles and other private or public places under customs jurisdiction, without the need for
any special authorization (Article 10 of the Basic Customs Law).
59. Please quote what provisions of your legisl ation authorize the competent authorities to
order the destruction or disposal of infringing goods.
Without prejudice to the reply to question 52 in this list of questions regarding border
measures, Article 255 of Decision 486 of the Andean Community provides that the competent
national authority may order the destruction or seizure of infringing goods without prejudice to other
rights of action available to the right holder and subject to the right of the defendant to seek review by
a judicial authority.
60. Please indicate whether or not your legislation provides for a de minimis  imports
exception.
The regime governing border measures, described above, does not apply to small quantities of
goods of a non-commercial nature contained in travellers' luggage or sent in small consignments, asprovided in Article 256 of Decision 486 of the Andean Community.
61. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
The Criminal Code establishes penalties for both industrial property rights and copyright
infringements.  Article 338 of the Criminal Code, for example, provides for a prison sentence of one
to 12 months for anyone who has counterfeited or altered names, marks or distinctive signs belongingto intellectual works or to the products of any i ndustry, and for anyone who has made use of legally
registered names, marks or signs that have been so counterfeited or altered, even if the act was carried
out by a third person.  The same penalty applies to anyone who has counterfeited or altered industrial
designs or has made use of them, even if the act was carried out by a third person.
Article 339 of the Criminal Code imposes a prison sentence of one to 12 months on anyone
who, for trading purposes, has imported into Venezuela and placed on sale or otherwise circulated
intellectual works or products of any industry bearing counterfeit or altered names, marks or
distinctive signs likely to mislead the purchaser as to their origin or quality, if the ownership of the
works, marks or signs has been legally registered in Venezuela.
Article 340 of the Code imposes a prison sentence of 15 days to three months on anyone who
has disclosed information concerning an invention, scientific discovery or industrial application that
should have been kept secret and who has become aware of it because of their position or employment
or by virtue of their profession, art or industry, as well as a prison sentence of 15 days to six months ifthe disclosure was made to a foreigner not resident in Venezuela or the latter's agent.
Likewise, the Industrial Property Law imposes a prison sentence of one to 12 months on
anyone who infringes the rights of the legitimate owner or holder of a patent, by manufacturing,IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 61
making, transmitting or using for industrial purposes and for profit unlawful or fraudulent copies of
the subject-matter of the patent, without the express or tacit consent of the owner, as well as anyone
who, in order to prejudice the rights or interests of the legitimate owner, uses, manufactures or makes
registered marks, designs or other items likely to be confused with them (Articles 98 and 99).
Anyone who designates an establishment as a branch of another establishment which has a
registered trade name and who fraudulently takes advantage of an industrial or commercial reputation
earned by the efforts of another person whose property is protected under the Industrial Property Law
shall incur a prison sentence of one to 12 months (Articles 100 and 101 respectively).
As regards copyright, the use of the title of a work, the communication in original or
processed form, in full or in part, of intellectual works, editions of the works of others, texts,
photographs or products obtained by a process similar to photography or images recorded on
cinematographic film, being equivalent to photography, and the distribution of intellectual works
including copies of phonograms, and unauthorized broadcasting or retransmission by broadcasting
organizations, without the consent of the owner of the rights concerned, are offences punishable by aprison sentence of six to 18 months (Article 119 of the Law on Copyright).
A prison sentence of one to four years shall be imposed on anyone who deliberately
reproduces, in original or processed form, in full or in part, intellectual works, editions of the works of
others, texts, photographs or products obtained by a process similar to photography or who importsinto Venezuela, stores, distributes, sells, or circulates unlawful reproductions thereof (Article 120 of
the Law on Copyright).  The same penalty applies to anyone who copies, by any means, the work of a
performer, a phonogram or a broadcast, in full or in part, or who imports into Venezuela, stores,
distributes, sells or circulates such reproductions or copies (Article 121 of the Law on Copyright).
6275 part 4
IV. REPLIES TO THE QUESTIONS POSED BY JAPAN
A. 
GENERAL
1. Please explain how Decisions 344, 345, 3 51, 391 and 486 of the Commission of the
Cartagena Agreement are implemented in your country, indicating whether they are applied
directly or through national legislation.
Decision 486 of the Commission of the Cart agena Agreement – Common Industrial Property
Regime – which replaces Decision 344 of the Commission;  Decision 345 – Common Regime for the
Protection of Plant Breeders' Rights;  Decision 351 – Common Regime for Copyright and Related
Rights;  and Decision 391 – Common Regime on Access to Genetic Resources – are applied directlyin Venezuelan legislation by virtue of Article 153 of the Constitution of the Bolivarian Republic of
Venezuela.
70
                                                     
70 Article 153.  (…) The Republic may assign to supranational organizations, by means of treaties, the
exercise of the powers necessary for implementing these integration processes.  Among the policies ofintegration and union with Latin America and the Caribbean, the Republic shall give priority to relations withIbero-America, so as to achieve a common policy for all our Latin American countries.  The rules adopted under
integration agreements shall be considered an integral part of the legislation in force and shall be applied
directly and take precedence over domestic legislation. (Emphasis added)IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 62
Article 371 of the Treaty establishing the Court of Justice of the Andean Community provides
that the Commission's decisions shall be directly applicable in country Members.
It should be noted that these Community regulations must be applied equally in the entire
subregion, in other words they must have simultaneous and uniform effect in the five countries party
to the Agreement.  In Community law, therefore, supranationality takes the form of two basic
principles that must serve as the basis for the legal structure of integration, namely, direct
application72 and pre-eminence.73
Consequently, Community regulations are integrated in the national system of positive law
without any intermediate legislative or executive levels of authority.
B. COPYRIGHT
2. Please explain exceptions or exempt ions to the national treatment and
most-favoured-nation treatment under the Law on Copyright and Neighbouring Rights, if any,
as permitted by Articles 3 and 4 of the TRIPS Agreement.
Venezuela's domestic legislation on copyright and related rights (Decision 351 – Common
Regime for Copyright and Related Rights) provides for no exceptions to the application of the
principles of national treatment and most-favoured-nation treatment under Articles 3 and 4 of the
TRIPS Agreement, respectively.
Consequently, the principles of national treatment and most-favoured-nation treatment as set
out in Articles 3 and 4 of the Agreement on Trade- Related Aspects of Intellectual Property Rights
(TRIPS) have been applied to the nationals of country Members of the World Trade Organization
(WTO) since Venezuela's ratification of the Uruguay Round Agreements.  These principles thus formpart of Venezuela's legislation.
Nevertheless, Venezuela is party to the Cartagena Agreement, which entered into force before
ratification of the Agreement Establishing the Worl d Trade Organization, and is thus exempt from the
principle of most-favoured-nation treatment pursuant to Article 4(d) of the TRIPS Agreement, as it
made the relevant notification to the TRIPS Council before the entry into force of the aforementioned
Agreement.
C. 
PATENTS
3(1) Please describe how Decision 486 of the Commission of the Cartagena Agreement and, if
applicable, your national legislation, define the no tion of "invention" in the light of Article 27.1
of the TRIPS Agreement stipulating that patents shall be available for any "inventions" in all
fields of technology, provided that they are ne w, involve an inventive step and are capable of
industrial application.  What is the reasoning that the subject matters prescribed in
Article 15(b) of Decision 486 are deemed non-inventions;  is it because they exist in nature or
because they are related to living things or biological material?
                                                     
71 Article 3.  Decisions of (…) the Commission (…) shall be directly applicable in Member countries as
of the date they are published in the Official Gazette of the Agreement, unless they specify a later date.
72 Direct application:  the possibility for a regulation to produce legal effects in a country Member
without the need for any supplementary regulations in domestic legislation, in accordance with Article 3 of the
Treaty establishing the Court of Justice of the Andean Community.
73 Pre-eminence: the possibility for a Community regulation to prevail over a contrary provision of
domestic law, irrespective of the status of the latter.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 63
Article 14 of Decision 486 defines patentability in the same terms as Article 27.1 of the
TRIPS Agreement, even though there is no specific definition of invention, which is not covered by
domestic legislation either.  Nevertheless, the relevant theory and case law recognize that, for thepurposes of patent legislation, an invention is a technical solution to a technical problem.  "Technical"
is understood to mean anything that requires the use of natural forces (matter, energy) by humans in
order to satisfy material needs. Human intervention in  nature is essential to the concept of inventions.
These criteria are implicit in the rules on patents for invention laid down in Decision 486.
The things referred to in Decision 486, Article 15(b), are not considered inventions because
they are products of nature and not man-made inventions.  Material existing in nature cannot beclaimed as an invention by anybody.  For an invent ion to exist, something already existing in nature
must be transformed by a person.
3(2) If a living thing, its part or biological material that has no previously recognized
existence has been first isolated or purified artificially from its surroundings in nature (i.e. if itinvolves "human intervention"), is it deemed an invention under Article 15 of Decision 486?
Otherwise, is it automatically deemed a non-invention regardless of the extent of human
intervention involved?
Biological material existing in nature is not considered an invention purely because its
existence was not previously known.  Recognition of the existence of material or a phenomenon in
nature constitutes a discovery, not an invention.  Human intervention in nature by a person who
makes a discovery cannot be treated as equivalent to an intervention made by an inventor.  A
discoverer simply identifies something that already exists in nature and may separate it or isolate it
from its environment in order to understand it better.  An inventor goes further because he transformssomething that is found in nature in order to re solve a technical problem and this transformation can
be repeated and applied in practice.  Merely isolating or purifying material already existing in nature
does not make it patentable, whether the material is living or inert.  For example, treating the sand
from a river bed in order to separate or isolate a mineral in powder form contained in the sand (gold
for example) would not make the mineral isolated or purified patentable.  In the same way, the mere
fact of finding or discovering an animal, plant or micro-organism in nature does not make it
patentable, even if it was not previously known.  A product of nature must be transformed by a personbefore it can be considered an invention.
Without prejudice to the foregoing, any process for separation, isolation or purification which
meets the requirements for patentability may be the subject of a process patent.
3(3) Where a particular type of chemical substance exists in nature but is neither a part nor
whole of a living thing nor a biological material  (such as carbon beads isolated from the oil
residue which is produced through the oil refine ment process when lamp oil and light oil are
removed from crude oil), is it deemed an invention under Article 15 of Decision 486 if it is first
isolated or purified artificially from its surroundings?
The indications given in the reply to question 3(2) apply.  The work carried out by a
discoverer, however intensive it may be, cannot be equated with that of an inventor.  The separation,
isolation or purification of material existing in nature does not make the separated, isolated or purified
material patentable unless it has been intrinsically transformed.  The processes for separation,isolation or purification can nevertheless be patented if they meet the criteria laid down in the law.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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4. Please explain whether or not the subject ma tters listed below are deemed an invention
under Article 15 of Decision 486 and, if applicable, your national legislation.  If any of these
subject matters is deemed a non-invention, please specify the reason.  Please suppose that (a),
(h), (i), (l), (m), (n) and (o) have no previously recognized exis tence and have first been isolated
or purified artificially from their surroundings in  nature and that all of those listed meet other
requirements for patenting, such as novelty (in the sense that they have not been known to the
public), an inventive step, and industrial applicability.
(a) Human insulin isolated or purified from beta cells of a human pancreas.
This is not considered an invention.  See the replies to questions 3(2) and 3(3).
(b) A gene which encodes the said human insulin.
If the gene already exists in the human body, in other words it has been discovered and
isolated from the human body, it is not considered an invention.  If it is a gene created by a person (forexample, through genetic engineering) and when introduced into the human body or into an
appropriate medium encodes and expresses itself by producing human insulin, yes, it would be
considered an invention.
(c) An expression vector which carries the said gene.
If the expression vector already exists in the human body or in nature, it is not considered an
invention.  If it is an expression vector created by a person, yes, it would be considered an invention.
(d) Escherichia coli transformed by the said expression vector.
Micro-organisms modified by human intervention are considered inventions.  Escherichia coli
transformed using the expression vector in question (or any other method) is considered an invention
because it is not the E. coli existing in nature.
(e) A process for producing human insulin by culturing the said escherichia coli.
Yes, it is considered an invention.
(f) Recombinant human insulin ob tained by the said process.
Yes, it is considered an invention.
(g) A mutant obtained by genetically modifying the said recombinant human
insulin.
Yes, it is considered an invention.
(h) Baker's yeast isolated or purified artificially from its surroundings in nature.
It is not considered an invention.  See the replies to questions 3(2) and 3(3).
(i) A micro-organism which is isolated or purified artificially from its surroundings
in nature and produces an antibiotic mycin X.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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If the micro-organism has not been modified by human intervention, it would be a product of
nature and would not be considered an invention.  See the replies to questions 3(2) and 3(3).
(j) An antibiotic mycin X produ ced by the said micro-organism.
If the micro-organism produced the antibiotic naturally before it was isolated or purified, the
antibiotic would be considered a product of nature and not an invention.  If, however, as a result of
human intervention through the isolation or purification of the micro-organism, something is
produced (an antibiotic) which it does not normally produce in its natural state, it could be considered
that the antibiotic is the result of human interventi on in nature, in which case the antibiotic could be
considered an invention.
(k) A mutant obtained by artificially mutating the said organism with UV rays.
Yes, it is considered an invention.
(l) A hybridoma which produces an antibody recognizing antigen A.
Yes, it is considered an invention.
(m) Human hepatocyte Y.
If the hepatocyte already exists in the human body (or in nature), it is not considered an
invention.  If it is a hepatocyte created by a person, it would be considered an invention.
(n) Human liver tissue Z
If the human liver tissue already exists in the human body (or in nature), it is not considered
an invention.  If it is liver tissue created by a person, it would be considered an invention.
(o) Carbon beads isolated from the oil residue which is produced through the oil
refinement process when lamp oil and light oil are removed from crude oil.
This is not considered an invention.  See the replies to questions 3(2) and 3(3).
5. Please explain the relationship between  Article 29.1 of the TRIPS Agreement and
Article 26(h) and (i) of Decision 486, which oblige  patent applicants to submit a copy of the
contract for access to genetic resources and a copy of the documents certifying the authorizationto use traditional knowledge.  Does your country consider the above-mentioned applicants'
obligation as  an enablement requirement, which is clearly stipulated in Article 29.1 of the
TRIPS Agreement, or as an additional requireme nt, which is not stipulated in that Article?
There is no relationship between Article 29.1 of the TRIPS Agreement and Article 26(h) and
(i) of Decision 486 of the Andean Community.  Article 29.1 of the TRIPS Agreement refers to the
requirement of sufficient disclosure of the invention.  This aspect is covered by Articles 28 and 29 of
Decision 486.
The provisions of Article 26(h) and (i) of Decision 486 do not refer to the disclosure
requirement.  Their purpose is rather to contribute to respect for and compliance with the national,
Andean Community and international legal provisi ons (for example, the Convention on Biological
Diversity) concerning access to genetic resources and traditional knowledge.  Access to genetic
resources and traditional knowledge does concern industrial property in the sense that the geneticIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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resource or traditional knowledge can give rise to a patentable technological development.  In order to
deal with such cases, the provisions of Decision 486, which are consistent with those of Decision 391
on access to genetic resources, seek to ensure that a patent cannot be obtained for an invention made
on the basis of an unlawfully obtained genetic resource or traditional knowledge.  Patents forinvention are granted by the State as an incentive or encouragement for lawful activities, namely, the
development of new technologies.  If such activities are conducted on the basis of unlawfully obtained
material or information (illegal access to a genetic resource or traditional knowledge), the State has
the authority not to grant a patent.  This is consistent with State policy on the protection of genetic
resources and traditional knowledge, which is implemented at several different levels.
The provisions of Article 26(h) and (i) of Decision 486 lay down legal requirements related to
the procedure for granting a patent.  Like other requirements for granting patents, these are not dealt
with in the TRIPS Agreement but are left to the domestic legislation of WTO Members.
6. Please explain the rationale of Article 21  of Decision 486 stipulating that a product
which has already been patented and included in the state of the art may not be the subject of anew patent solely because the product is put to a use different from that originally contemplated
by the initial patent.  Please also explain how Article 21 of Decision 486 complies with
Article 27.1 of the TRIPS Agreement stipulat ing that patents shall be available for any
inventions in all fields of technology, provided th at they are new, involve an inventive step and
are capable of industrial application.  Is the rationale of Article 21 based on the lack of novelty?If so, can a patent claim directed to a new "use" (not a "product" as such) be deemed a new
invention?  What other types of patent claims for a new use can be patentable?
Article 21 of Decision 486 states that a product or process already patented and included in
the state of the art may not be the subject of a new patent on the sole ground of having been put to ause different from that originally contemplated.  This provision makes it clear that an invention
(product or process) cannot be patented anew if it does not meet the condition of novelty required
under patent law.  The requirement of novelty cannot be avoided by stating that the product or process
in question is the subject of new use.  If a product or process already known is capable of a use or
application that is different from those already known and this new use meets the requirements of
patentability (industrially applicable, totally new, and involving an inventive step), such use would
constitute a patentable technical solution.
Obviously, only the new use could be claimed as patentable in such cases, not the product
itself because the latter does not meet the criterion of novelty.
Any invention, whether for a product or a process, can be patented if it meets the criteria for
patentability (industrially applicable, totally new, and involving an inventive step).  Processes also
include methods, applications, and uses, inter alia .  In principle, there is no restriction on the type of
process that may be claimed in a patent provided that it meets the aforementioned criteria for
patentability, as well as the other requirements laid down in the relevant legislation.
V. REPLIES TO THE QUESTIONS POSED BY SWITZERLAND
A. 
PATENTS
1. Please explain whether, in the field of patents, the relevant Articles of Decision 486 of
the Commission of the Andean Community – Common Industrial Property Regime – are
directly applicable in your legislation or wh ether you have adopted national implementing
legislation.  If through national legislation, please specify the relevant legislation.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Decision 486 – Common Industrial Property Re gime – of the Commission of the Andean
Community applies directly in Venezuelan legislation by virtue of Article 153 of the Constitution of
the Bolivarian Republic of Venezuela.74
Article 375 of the Treaty establishing the Court of Justice of the Andean Community provides
that the Commission's decisions shall be directly applicable in Member Countries.
It should be noted that these Community regulations must be applied equally in the entire
subregion, in other words they must have simultaneous and uniform effect in the five countries party
to the Agreement.  In Community law, therefore, supranationality takes the form of two basic
principles that must serve as the basis for the legal structure of integration, namely, directapplication
76 and pre-eminence.77
Consequently, Community regulations are integrated in the national system of positive law
without any intermediate legislative or executive bodies.
It should also be mentioned that the Agreement itself, its Protocols and complementary
Treaties are also directly applicable because they have the status of constitutional provisions in the
countries which have freely ratified them in accordance with their own national Constitutions.
Consequently, no country Member can avoid applying the Community rules fully and directly as rules
under its Constitution.
In this connection, it should be noted that a country Member has to adopt all the laws,
decrees, resolutions or regulations needed for the full application of Community law in its territory.
B. PROTECTION OF UNDISCLOSED INFORMATION
2. Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible authorities in the procedure for market authorization of a pharmaceutical or of an
agricultural chemical product, please explain if and how your law prevents the responsible
authorities or a second applicant from relying on or referring to the original data of the first
applicant for the market authorization procedure of a second product equivalent to the product
of the first party.  Does your legislation provide for time-limits before the expiration of which
such data cannot be relied upon or referred to by the authorities or a second applicant?
Decision 486 provides that, when country Members require as a condition for approving the
marketing of pharmaceutical products or agricultural chemical products that use new chemical
entities, the submission of undisclosed test or other data whose formulation required a considerable
effort, they shall protect such data against any unfair commercial use.  Furthermore, country Members
                                                     
74 Article 153.  (…) The Republic may assign to supranational organizations, by means of treaties, the
exercise of the powers necessary for implementing these integration processes.  Among the policies of
integration and union with Latin America and the Caribbean, the Republic shall give priority to relations withIbero-America, so as to achieve a common policy for all our Latin American countries.  The rules adopted under
integration agreements shall be considered an integral part of the legislation in force and shall be applied
directly and take precedence over domestic legislation. (Emphasis added)
75 Article 3.  Decisions of (…) the Commission (…) shall be directly applicable in country Members as
of the date they are published in the Official Gazette of the Agreement, unless they specify a later date.
76 Direct application:  the possibility for a regulation to produce legal effects in a country Member
without the need for any supplementary regulations in domestic legislation, in accordance with Article 3 of theTreaty establishing the Court of Justice of the Andean Community.
77 Pre-eminence:  the possibility for a Community regulation to prevail over a contrary provision of
domestic law, irrespective of the status of the latter.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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shall protect such data against any disclosure, except where necessary to protect the public or unless
steps are taken to ensure that the data are protected against unfair commercial use.
VI. REPLIES TO THE QUESTIONS POSED BY THE UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and
most-favoured-nation treatment are provided to nationals of other WTO Members.
The principles of national treatment and most-favoured-nation treatment as set out in
Articles 3 and 4 of the Agreement on Trade-Relate d Aspects of Intellectual Property Rights (TRIPS)
have been applied to the nationals of country Members of the World Trade Organization (WTO) since
Venezuela's ratification of the Uruguay Round Agreements.  These principles thus form part of
Venezuela's legislation.
Nevertheless, Venezuela is party to the Cartagena Agreement, which entered into force before
ratification of the Agreement Establishing the Worl d Trade Organization and is thus exempt from the
principle of most-favoured-nation treatment pursuant to Article 4(d) of the TRIPS Agreement, as it
made the relevant notification to the TRIPS Council before the entry into force of the aforementioned
Agreement.
In this connection, the new Decision 486 – Common Industrial Property Regime – includes
among its General Provisions the principles of national treatment78 and most-favoured-national
treatment.79
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how the Copyright Law of Venezuela complies with
Article 9 of the TRIPS Agreement requiring that  Members comply with all Articles 1 through
21 of the Berne Convention (1971), except Articl e 6 bis, since Members do not have rights or
obligations relating to the latter Article under the TRIPS Agreement.
Venezuela acceded to the Berne Convention for the Protection of Literary and Artistic Works
on 11 May 1982.  Nevertheless, both the Venezuelan Law on Copyright and Decision 351 – Common
Regime for Copyright and Related Rights – contain provisions which fully reflect those of the Berne
Convention and are thus wholly consistent with the wording of Article 9 of the TRIPS Agreement.
With regard to the Article 11 exception concerning Article 6 bis of the Berne Convention,
Venezuelan law departs from this exclusion and includes in the Law on Copyright the scope of moral
                                                     
78 Article 1.  With regard to the protection of indu strial property, every country Member shall accord to
nationals of the other Members of the Andean Community and the World Trade Organization (WTO) and of the
States party to the Paris Convention for the Protection of Industrial Property treatment no less favourable than it
accords to its own nationals, subject to the provisions  of Articles 3 and 5 of the WTO Agreement on Trade-
Related Aspects of Intellectual Property rights (TRIPS Agreement) and of Article 2 of the Paris Convention forthe Protection of Industrial Property.
79 Article 2.  With regard to the protection of industrial property, any advantage, favour, privilege, or
immunity that a Member country grants to nationals of another country Member of the Andean Communityshall extend to the nationals of any Member of the World Trade Organization or State party to the Paris
Convention for the Protection of Industrial Property.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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rights laid down in Articles 18 to 20 and Articles 11 and 12 of Decision 351 of the Commission of the
Cartagena Agreement.
3. Please explain how the Copyright Law of Venezuela protects computer programs as
literary works and compilations of data as required by Article 10 of the TRIPS Agreement.
Article 280 of the Law on Copyright includes computer programs among protected intellectual
works.  Article 1781 of the Law defines what is meant by a computer program and establishes rules of
ownership with regard to the relationship betw een the producer of the program and its authors.
Article 1082 of the Regulation to the Law on Copyright expressly states that computer
programs are protected on the same terms as literary works.
Article 383 of Decision 351 – Common Regime for Copyright and Related Rights – defines
what is meant by a computer program (software).  Article 484 of the same Andean Decision includes
computer programs as protectable subject matter.  Likewise, Article 2385 states that computer
programs are protectable and provides for their protection on the same terms as literary works.
With regard to databases, Article 386 of the Law on Copyright specifically states that
databases are protectable.
                                                     
80 Article 2.  The following in particular shall be considered included among the intellectual works
referred to in the foregoing Article:  books, pamphlets and other literary, artistic and scientific writings,
including computer programs and the associated technical literature and users' manuals;  lectures, addresses,sermons and other works of the same nature;  dramatic or dramatic-musical works, choreographic and mimedworks the stage movements for which have been set down in writing or otherwise;  musical compositions withor without words;  cinematographic works and other audiovisual works expressed by any process;  works ofdrawing, painting, architecture, engraving or lithography;  works of applied art that are not mere industrial
designs;  geographical illustrations and maps;  plans, three-dimensional works and sketches relating to
geography, topography, architecture or science;  and, finally, any literary, scientific or artistic productsusceptible of disclosure or publication by any means or process.
81 "Article 17.  Computer program shall be understood to mean the expression, in whatever mode,
language, notation or code, of a set of instructions the purpose of which is to make a computer perform aspecific task or function, whatever the manner in which it is expressed and the physical medium on which the
fixation has been effected.
82 Article 10.  Computer programs shall be protected on the same terms as literary works (…)
(Regulation to the Law on Copyright and Decision 351 of the Commission of the Cartagena Agreement).
83 Article 3.  Computer program (software):  means the expression in words, codes, plans or any other
form of a set of instructions which, on being incorporated in automated reading apparatus, is capable of causing
a computer – an electronic or similar device capable of pr ocessing information – to execute a particular task or
produce a particular result.  The computer program shall likewise include technical documentation and users'
manuals.
84 Article 4.  The protection granted by this Decision  shall accrue to all literary, artistic and scientific
works that may be reproduced or disclosed by any known or future means, including the following in particular:
(…) (I)  Computer programs.
85 Article 23. Computer programs are protected on the same terms as literary works.  That protection
shall extend not only to operating programs but also to application programs, in the form of either source codesor object codes.
86 Article 3.  Translations, adaptations, transformations or arrangements of other works, and also
anthologies or compilations of various works and databases shall be considered intellectual works distinct fromthe original work where, by virtue of to the selection or arrangement of their subject-matter, they constitute
personal creations.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Article 2.387 of the Regulation to the Law on Copyright defines the term database.
Article 1288 of the Regulation secures protection for databases provided that they constitute personal
creations by virtue of the selection or arrangement of their subject matter.
Article 4(ll)89 of Decision 351 – Common Regime for Copyright and Related Rights –
includes databases as protectable subject matter.  Article 2890 of the same Decision grants databases
protection provided that the selection or arrangement of the contents constitute an intellectual
creation.
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs
and cinematographic works be available.  Please cite the corresponding provision of theCopyright Law of Venezuela.
The Law on Copyright guarantees the author's right to authorize or prohibit the
communication to the public of the original or copies of the work, irrespective of its nature, by means
of sale or other transfer of ownership, rental, or other form of use, against payment.  This right alsoapplies to the exploitation of computer programs and cinematographic works.  The right of
distribution is covered by Article 41
91 of the Law on Copyright.
Article 13(c)92 of Decision 351 – Common Regime for Copyright and Related Rights –
recognizes the author's right to distribute his work, which includes the right to authorize or prohibitinter alia  leasing or rental of the work.
By establishing the right of distribution to the public without any limitations on its scope,
Venezuela's legislation is consistent with the Agreement and in fact provides more comprehensive
protection.
5. Please state the length and terms of protec tion the Copyright Law of Venezuela provides
for a work other than a photographic work or a work of applied art and cite the relevant
provision of the Law.
Article 25
93 of the Law on Copyright states that copyright shall last for the author's lifetime
and shall expire after 60 years counted from 1 January of the year following his death, including
                                                     
87 Article 2.  ( …) (3) Database:  the compilation of works, facts or data in printed form, in computer
storage units or in any other form.
88 Article 12.  Databases shall be protected provided that they constitute personal creations by virtue of
the selection or arrangement of the contents constitute an  intellectual creation.  The protection granted shall not
extend to compiled data or information, but it shall not affect any rights existing in the works or materialconstituting the said database.
89 Article 4. The protection granted by this Decision  shall accrue to all literary , artistic and scientific
works that may be reproduced or disclosed by any known or future means, including the following in particular:
(…) (II) Anthologies or compilations of  assorted works and also databases, which, by the selection and
arrangement of their contents, constitute personal creations.
90 Article 28.  Databases shall be protected insofar as the selection or arrangement of the contents
constitute an intellectual creation.  The protection granted shall not extend to compiled data or information, but
it shall not affect any rights subsisting in the works or material constituting the said database.
91 Article 41.  (…) The right of reproduction shall also cover distribution, which consists in making
available to the public the original or copies of the work by means of sale or other form of transfer of ownership,
rental or other form of use for a consideration.
92 Article 13.  The author, or his successors in title where applicable, shall have the exclusive right to
authorize or prohibit:  (…) (c)  The distribution of copies of the work to the public by means of sale, lending or
hiring.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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copyright in works not disclosed during his lifetime.  The Law also states that the term for certain
works shall be calculated from the date of first publication or completion, in which case it shall also
be 60 years as of first publication or completion (Articles 26 and 2794 of the Law on Copyright).
With respect to photographs, Article 3895 of the Law on Copyright provides that the rights of
the photographer and his successors in title shall expire 60 years after the disclosure of the work.
However, they shall expire 60 years after its completion if it has not been disclosed during that period.
Such periods shall be counted from 1 January of the year following that of disclosure or completion,
as the case may be.
The term of protection for works of applied art would be governed by the general rule laid
down in Article 2596 of the Law on Copyright.
6. Please describe the protection the Copyright Law of Venezuela provides for performers
and the term of the protection.
Pursuant to Article 9297 of the Law on Copyright, performers98 have the exclusive right to
authorize or prohibit the fixation, reproduction or communication to the public, by whatever means or
process, of their performances.
                                                                                                                                                                    
93 Article 25.  Copyright shall last for the lifetime of the author and shall expire after 60 years counted
from 1 January of the year following his death, including copyright in works not disclosed during his lifetime.
94 Article 26.  For works of joint authorship, the 60 years referred to in the preceding Article shall be
counted as from 1 January of the year following that of the death of the last surviving co-author.
Nevertheless, the right of exploitation in an audiovisual work, a sound recording or a computer
program shall expire after 60 years counted from 1 January of the year following that of its first publication or,failing that, of its completion.  This limitation shall not affect the moral rights of each of the co-authors, or theright laid down in the last paragraph of Article 10 of this Law.
Article 27.  Copyright in anonymous or pseudonymous works shall expire after 60 years counted from
1 January of the year following that of their first publication.  The date of first publication shall be determined
by any means of proof, including especially the legal deposit of the work.
The said limitation shall not apply in the cases provided for in the sole paragraph of Article 7 or where,
within the specified period, the author or his successors in title reveal the former's identity in accordance withArticle 8 of this Law.
With regard to anonymous or pseudonymous works published in instalments, the period shall begin to
run on 1 January of the year following that of the publication of each instalment.  However, if the whole of thework is published within the 20 years following the year of publication of the first instalment, the copyright inthe whole work shall expire after 60 years counted from 1 January of the year following that of the publicationof the last such instalment.
95 Article 38.  Photographs and also reproductions and prints obtained by a comparable process shall be
protected in the same way as the intellectual works mentioned in Article 1 of this Law.  The rights of thephotographer and his successors in title shall expire 60 years after the disclosure of the work. However, theyshall expire 60 years after its completion if it has not been disclosed during that period.  Such periods shall becounted from 1 January of the year following that of disclosure or completion, as the case may be.
96 Article 25.  Op.cit .
97 Article 92.  Performers or their successors in title shall have the exclusive right to authorize or
prohibit the fixation, reproduction or communication to the public, by whatever means or process, of their
performances.  They may not however object to communication when it is effected on the basis of a fixationeffected with their prior consent and published for commercial purposes.
98 Article 2.  (…)  (2) Performer:  the person who pe rforms, sings, reads, recites, interprets or in any
way executes a work." (Regulation to the Law on Copyright and Decision 351 of the Commission of the
Cartagena Agreement).IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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The term of protection for performers' rights is 60 years as of 1 January of the year following
the performance, in the case of unfixed performances, or following publication where the performance
is recorded on a sound or audiovisual medium, in accordance with Article 9499 of the Law on
Copyright.
Decision 351 – Common Regime for Copyright and Related Rights – grants performers
similar rights pursuant to Articles 34100, 35101 and 36102.
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
Article 14.2 requires that producers of phonograms are to have the right to authorize orprohibit the commercial rental to the public of originals or copies of their phonograms.  Please
describe how the Copyright Law of Venezuela implements these obligations and indicate the
term of protection.
Article 95
103 of the Law on Copyright reproduces textually Article 14.2 of the TRIPS
Agreement, stating that phonogram producers have the exclusive right to authorize or prohibit the
direct or indirect reproduction of their phonograms, as well as the import, distribution to the public,
rental or other use, in whatever form and by whatever means, of copies of their phonograms.
Consequently, the exception provided for in Article 14.4 of the TRIPS Agreement does not apply in
Venezuela as Decision 351 – Common Regime for Copyright and Related Rights – and the Law onCopyright recognize the producer's exclusive right to authorize or prohibit rental, whether or not for
commercial purposes.
With regard to the term of protection, Article 100
104 of the Law provides that it shall be
60 years as of 1 January of the year following the first publication of the phonogram.
In this connection, Article 37 of Decision 351 – Common Regime for Copyright and Related
Rights – gives producers of phonograms the right to authorize or prohibit the direct or indirect
reproduction of their phonograms;  to prevent the importation of copies of phonograms made without
the authorization of the right holder;  to authorize or prohibit public distribution of the original and
any copy thereof by sale, rental or any other means of distribution to the public.  Lastly, Article 38 of
                                                     
99 Article 94.  The term of protection granted to pe rformers shall be 60 years, counted from 1 January
of the year following the performance, in the case of unfixed performances, or following publication where the
performance is recorded on a sound or audiovisual medium.
100 Article 34.  Performers shall have the right to authorize or prohibit the communication to the public
of their unfixed performances in any form and the fixing and reproduction of their performances.
Nevertheless, performers may not object to the communication to the public of their performances
where in themselves they constitute broadcast performan ces or are made from a previously authorized fixation.
101 Article 35.  In addition to the rights recognized in the foregoing Article, performers shall have the
right to:
(a) Demand that their names be mentioned at or associated with every performance that takes place;
(b) object to any distortion or mutilation of their performances or any other act prejudicial thereto that
might adversely affect their prestige or reputation.
102 Article 36.  The term of protection of the economic rights of performers may not be less than
50 years counted from 1 January of the year following that in which the performance took place or in which thefixation, if any, was made.
103  Article 95.  Producers of phonograms shall have the exclusive right to authorize or prohibit the
reproduction of their phonograms, as well as the importation, distribution to the public, rental or other use, inwhatever form and by whatever means, of copies of their phonograms.
104  Article 100. The protection granted to the producer of phonograms shall be for 60 years counted
from 1 January of the year following the first publication of the phonogram.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Decision 351 – Common Regime for Copyright and Related Rights – covers the term of protection to
be given, which may not be less than 50 years as of the year in which the fixation occurred.
C. TRADEMARKS
8. Please describe the subject matter than can comprise a trademark under the
Trademark Law of Venezuela.
Article 134105 of Decision 486 – Common Industrial Property Regime – establishes the
criteria to be fulfilled for the trademark registration of signs and sets out an indicative list containing
examples of a range of registerable signs.
9. Please describe the procedure that must be followed to register a trademark in
Venezuela, citing the relevant provisions of the la w, and describe the rights that the owner of a
registered mark can exercise.
The procedure to be followed when applying for registration of a trademark in Venezuela is
laid down in the provisions contained in Chapter II, Articles 138 to 151106  of Decision 486 –
Common Industrial Property Regime.
                                                     
105 Article 134.  For the purposes of this regime, any sign capable of distinguishing goods and services
on the market shall constitute a mark.  Signs capable of graphic representation may be registered as marks.  The
nature of the product or service to which a mark is to be applied shall in no case be an obstacle to theregistration thereof.
The following signs, among others, may constitute marks:
(a) Words or word combinations;(b) images, figures, symbols, graphics, logotypes, monograms, portraits, labels, emblems and shields;(c) sounds and smells;(d) letters and numbers;(e) a colour within an outli ne, or a colour combination;
(f) the shape of the goods, their containers or their packaging;
(g) any combination of the signs or elements specified in the preceding subparagraphs.
106 Article 138.  The application for registration of a mark shall be filed with the competent national
office, shall relate to a single class of goods or services and shall include the following documents:
(a) the request;(b) a reproduction of the mark in the case of a word  mark featuring graphic elements, shapes of colour
or a figurative, composite or three-dimensional mark with or without colour;
(c) such powers of attorneys as may be necessary;(d) proof of payment of the prescribed fee;(e) the authorization required in the cases provided for in Articles 135 and 136, where applicable;  and(f) where applicable, the certificate of registration of the country of origin, issued by the authority that
granted it and, where provided in the domestic legisla tion, proof of payment of the prescribed fee where the
applicant wishes to avail himself of the right provided for in Article 6 quinquies  of the Paris Convention.
Article 139.   The request forming part of the application for registration of a mark shall be filed on a
form and shall comprise the following:
(a) the request for registration of a mark;(b) the name and address of the applicant;
(c) the nationality or domicile of the applicant;
(d) where appropriate, the name and address of the legal representative of the applicant;(e) a mention of the mark to be registered in the case of a mark that is purely verbal, without any
graphic elements, shape or colour;
(f) an express mention of the goods or services for which registration of the mark is sought;(g) a mention of the class to which the goods or services belong;  and
(h) the signature of the applicant or his legal representative.IP/Q/VEN/1, IP/Q2/VEN/1,
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Article 140.  The date of receipt of the applicatio n by the competent national office shall be considered
the filing date thereof, provided that it included  at least the following at the time of receipt:
(a) a mention that the registration of a mark is applied for;
(b) the data identifying the applicant or the person filing the application, or such as will allow the
competent national authority to communicate with that person;
(c) the mark for which registration is sought, or a reproduction of the mark in the case of a word mark
with special graphic elements, shape or colour, or a fi gurative, composite or three-dimensional mark with or
without colour;
(d) an express mention of the goods or services for which protection of the mark is sought;  and(e) proof of payment of the prescribed fees.The omission of any of the elements listed in this Article shall cause the application to be regarded by
the competent national office as not having been accepted for processing, and no filing date shall be assigned toit.
Article 141.  The date on which the mark was used to identify goods or services at an officially
recognized exhibition held in any country may be claimed as the filing date of an application for registration of
that mark, provided that registration is applied for within the six months following the day on which the goodsor services were first displayed under the mark.  In that case the application may be considered filed on the dateof display.
The circumstances referred to in this Article shall be attested by a certificate issued by the authority
responsible for the exhibition issued by the authority responsible for the exhibition, which shall mention the date
on which the mark was first used in relation to the goods or services concerned.
Article 142.  Where the applicant wishes to avail himself of the right provided for in Article 6
quinquies  of the Paris Convention for the Protection of Industrial Property, he shall file the certificate of
registration of the mark, in the country of origin within a period of three months following the filing date of the
application.
Article 143.  The applicant for registration of a mark may request that his application be amended at
any stage in the processing thereof.  He may request the correction of any clerical error in the same way.
The competent national office may likewise suggest amendments in the application to the applicant at
any stage in the processing thereof.  Such suggestions  for amendment shall be processed in accordance with the
provisions of Article 144.  (Emphasis added)
In no event may the amendment entail changes to substantive aspects of the sign or a broadening of the
range of goods or services originally specified in the application.
Where national provisions so permit, fees may be charged for the request for amendment.Article 144.  The competent national office shall examine, within 15 days following the filing date of
the application, whether it meets the requirements of form specified in Articles 135 and 136.
Where it emerges from the examination as to form that the application does not meet the requirements
referred to in the foregoing paragraph, the competent national office shall inform the applicant accordingly so
that he may meet the said requirements within a period of 60 days following the date of notification.
If, on the expiry of the period mentioned, the applicant has not complied with the requirements stated,
the application shall be consider ed abandoned, and its place in the order of precedence shall be lost.
Article 145.  Where the application for registration meets the requirements of form specified in this
Chapter, the competent national office shall order publication.
Article 146. – Within a period of 30 days following the date of publication, any person having a
legitimate interest may file one reasoned opposition with  a view to discrediting the registration of the mark.
At the request of a party, the competent national office shall grant one further period of 30 days for the
submission of evidence in support of the opposition.
Reckless oppositions may be penalized if  national legislation so provides.
Oppositions to an application that are filed within the six months following the expiry of the period of
grace referred to in Article 153 shall not be entertained where they are based on marks that have coexisted withthe registration applied for.
Article 147. – For the purposes of the provisions of the foregoing Article, it shall be understood that
both the owner of an identical or similar mark for goods or services in relation to which use of the mark couldmislead the public and the person who first applied for registration of that mark could mislead the public and the
person who first applied for registration of that mark in any of the member countries also have a legitimate
interest in filing oppositions in the other member countries.  In both cases the opponent shall prove his genuineIP/Q/VEN/1, IP/Q2/VEN/1,
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Regarding the legal provisions under which owners can exercise their rights, Articles 155
and 156107 of Decision 486 set out the exclusive rights conferred by registration.  The text of the
                                                                                                                                                                    
interest in the market of the country Member in which the opposition is filed, which he must do by applying for
registration at the time  of filing the opposition.
The filing of an opposition based on a mark previously registered in any of the member countries under
the provisions of this Article shall entitle the competent national office to refuse registration of the second mark.
The filing of an opposition on the basis of an application for registration of a mark previously filed in
any of the country Members under this Article shall cause the registration of the second mark to be suspended
until registration of the first has been granted.  In that event he provision of the foregoing paragraph shall beapplicable.
Article 148.  Where opposition has been filed, the competent national office shall inform the applicant
accordingly so that, within the following 30 days, he may present his own arguments and submit evidence if hesees fit.
At the request of a party, the competent national office shall grant once only an additional period of 30
days for the submission of the evidence in support of the response.
Article 149.  The competent national office shall not entertain oppositions that correspond to any of the
following cases:
(a) they are filed without the essential particulars of the opponent and the application to which the
opposition is filed;
(b) the opposition is filed outside the appointed time;
(c) the corresponding processing fees have not been paid.Article 150.  On the expiry of the period specified in Article 148, or if no opposition has been filed, the
competent national office shall proceed  with the examination of registerability.  Where oppositions have been
filed, the competent national office shall issue a resolution ruling on them an don the grant or refusal of
registration of the mark.
Article 151.  For the classification of the goods and services to which marks apply, the member
countries shall use the international classification of Goods and Services for the Purposes of the Registration ofMarks established by the Nice Agreement of 15 June 1957, in its currently amended form.
The classes of the International Classification referred to in the foregoing paragraph shall not determine
the similarity or dissimilarity of the goods or services expressly mentioned.
107 Article 155.  Registration of a mark shall confer on its owner the right to proceed against any third
party who, without his consent, performs any of the following acts:
(a) using or affixing the mark, or an identical or similar distinctive sign on goods for which the mark
has been registered, on goods connected with the services for which it has been registered, or on containers,wrappers, packaging or other means of presenting such products;
(b) removing or altering the mark for commercial purposes after it has been applied or affixed to the
goods for which the mark has been registered, to the goods connected with the services for which it ahs been
registered or to the containers, wrappers, packaging or other means of presentation of such goods;
(c) manufacturing labels, containers, wrappers, pack aging or other materials that reproduce or include
the mark, and also marketing or stocking such materials;
(d) using, in business dealings, a sign identical or similar to the mark in relation to any goods or
services where such use could cause confusion or a risk of association with the owner of the registration.  Where
an identical sign is used for identical goods or services, it shall be presumed that there is a risk of confusion;
(e) using a sign in business dealings that is identical or similar to a mark well known for any goods or
services where such use could cause the owner of the registration undue economic or commercial harm owing tothe dilution of the distinctiveness or market or advertising value of the mark, or owing to unfair exploitation ofthe prestige of the mark or its owner;
(f) making public use of a sign identical or similar to a well-known mark, even for non-commercial
purposes, where such use could cause dilution of the dist inctiveness or market or advertising value of the mark
or unfair exploitation of its prestige.
Article 156.  For the purposes of the provisions of subparagraphs (e) and (f) of the foregoing Article,
the following acts, in particular, shall be considered third-party use of a sign in business:
(a) bringing goods or services on to the market, selling them, offering them for sale or distributing them
under the sign;IP/Q/VEN/1, IP/Q2/VEN/1,
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Decision provides for a range of actions for the assertion of the aforementioned rights, including the
following:  Action for Cancellation, Action Claiming Ownership, Action for Infringement of Rights,
Precautionary Measures, Border Measur es, and Acts of Unfair Competition.
10. Please provide the length and terms of protection that the Trademark Law of Venezuela
provides for a trademark.
Article 152108 of Decision 486 – Common Industrial Property Regime – establishes an initial
period of protection of ten (10) years for marks, calculated from the date of their grant.
However, the term may be unlimited because they can be renewed indefinitely for further
periods of ten (10) years provided that the relevant requirements laid down in Article 153 are met.109
11. Please explain how the Venezuelan law provid es for the protection of well-known marks
for dissimilar products, as required by Article 16.3 of the TRIPS Agreement.  Please cite the
relevant provisions of the laws and regulations.
As required by Article 16.3 of the TRIPS Agreement, Article 226110 of Decision 486 prohibits
the unauthorized use of well-known signs for products or services that are dissimilar.
                                                                                                                                                                    
(b) importing, exporting, stocking or shipping goods under the sign;  or
(c) using the sign in advertising, publications, business documents or written or oral communications,
regardless of the medium of communication used and without prejudice to any provisions on advertising that mybe applicable.
108 Article 152.  The registration of a mark shall have a term of ten years counted from the grant date
and may be renewed for successive ten-year periods.
109 Article 153.  The owner of a registration or any persons having a legitimate interest, shall apply to
the competent national office for renewal of the registration within the six months prior to its expiry.Nevertheless, both the owner of the registration and any person having a legitimate interest shall be given agrace period of six months following the expiry date of the registration within which to apply for renewal.  To
that end, proof of payment of the prescribed fees shall be filed and the corresponding surcharge shall be paid atthe same time where the domestic legislation of country Member permits.  The registration of the mark shall
remain in full force during the period in question.
For the purpose of renewal there shall be no requirement of proof of use of the mark and it shall be
renewed automatically on the same terms as the original registration.  The owner may, however, reduce or limitthe goods or services listed in the original registration.
110 Article 226.  Unauthorized use of the well-known distinctive sign shall be constituted y use of all or
an essential part of it, or of a reproduction, imitation, tr anslation or transliteration of it, that is liable to create
confusion in relation to identical or similar establishmen ts, activities, goods or services to which it is applied.
Unauthorized use of the well-known distinctive sign shall also be constituted by the use of all or an
essential part of it, or of a reproduction, imitation, transl ation or transliteration of it, even in relation to different
establishments, activities, goods or services to which the well-known sign is applied, or its use for non-commercial purposes, where such use is liable to have any of the following effects:
(a) a risk of confusion or association with the owner of the sign or with his establishments, activities,
goods or services;
(b) unfair economic or commercial harm to the owner of the sign through dilution of the distinctiveness
or commercial or advertising value of the sign;  or,
(c) misappropriation of the prestige or notoriety of the signSuch use may have been observed in any medium of communication, including electronic media.
(Emphasis added)IP/Q/VEN/1, IP/Q2/VEN/1,
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12. Please explain whether Venezuelan law permits the registration of generic terms, which
are in the English or Spanish language, citing any relevant laws or regulations.
In Title VI, Chapter I, of Decision 486 – Common Industrial Property Regime – which sets
out the registration requirements for marks, Article 135(f)111 and (g)112 prohibit the use of generic
signs.
Nevertheless, the last paragraph of Article 135113 provides for the possibility of registering
generic signs where, for the purposes of use, the si gn has acquired distinctiveness in relation to the
products or services to which it is applied.
This type of distinctiveness that has been acquired or has come about with use, known as
"secondary meaning" in trademark theory, means that a sign has acquired new significance in terms of
the way in which a product is identified in the mind of consumers.
D. GEOGRAPHICAL INDICATIONS
13. Please describe in detail how the laws of Venezuela provide for the recognition and
protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing
the relevant provisions of law or regulation, and provide examples of geographical indications
so protected.
Article 214114 of Decision 486 provides for the recognition and protection required by
Article 22.2 of the TRIPS Agreement.
This provision is consistent with Article 22.2(a) of the TRIPS Agreement and the legal
measures available to interested parties to preven t such actions are to be found in Chapter XV of
Decision 486, with deals with action for infringe ment of rights, provisional measures, border
measures, and criminal procedures.
As a complement to Article 22.2(b) of the TRIPS Agreement, Articles 258115 and 259116 of
Decision 486 render illegal any act of unfair competition involving industrial property that is
                                                     
111 Article 135 .  (…) (f) consist solely of a sign or statement that is the generic or technical name of the
product or service concerned;
112 Article 135.  (…)  (g) consist solely of, or have become the common or usual designation for the
product or service concerned in the everyday language or usage of the country.
113 Article 135.  Last paragraph. – Notwithstanding the provisions of subparagraphs (b), (e), (f), (g) and
(h), a sign may be registered as a mark where the appli cant or his principal has been making constant use of it in
the country Member, and where the effect of such use has been that the sign has acquired a distinctiveness inrelation to the products or services to which it has been applied.
114 Article 214.  (…) Any use of appellations of origin by an unauthorized person, that creates
confusion shall be considered an infringement of indus trial property rights and, punishable, including in cases
where the appellations are used in conjunction with terms such as "variety" [género], "type" [tipo ], "imitation"
[imitación] or other similar terms that mislead the consumer.
115 Article 258.   Any act involving industrial property that is performed in a business environment and
is contrary to proper usage and pr actice shall be considered unfair.
116 Article 259.  The following in particular shall be  considered acts of unfair  competition in connection
with industrial property:
(a) any act capable of creating confusion, by whatever means, as to the establishment, goods or
industrial or commercial activity of a competitor;
(b) false assertions in the course of trade capable of discrediting the establishment, goods or industrial
or commercial activity of a competitor;IP/Q/VEN/1, IP/Q2/VEN/1,
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performed in a business environment and is contrary to proper usage and practice, within the meaning
of Article 10 bis of the Paris Convention (1967).
Pursuant to Article 222117 of Decision 486, an indication of source that is false or misleading
with respect, inter alia , to the origin of the product may not be used.  If such use does occur, any
interested person may initiate the administrative and civil actions provided for by the law.  It should
be noted that the concept of indication of source defined in Article 221118 of Decision 486 is broader
than the concept of geographical indication contained in Article 22.1 of the TRIPS Agreement; the
former therefore encompasses the latter.
14. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing the relevant
provisions of law or regulation, and provide examples of geographical indications for such
products.
The protection required under Article 23 of the TRIPS Agreement for wines and spirits is
provided in Article 215119 of Decision 486.
E. INDUSTRIAL DESIGNS
15. Please describe the procedure that must be followed to obtain protection for industrial
designs, citing the provisions of the law of Venezuela, and describe the nature of the protectionprovided.
The procedure to be followed for registering an industrial design in Venezuela is laid down in
Articles 117 to 127
120 of Decision 486 – Common Industrial Property Regime.
                                                                                                                                                                    
(c) statements or assertions the making of which in the course of trade could mislead the public as to
the nature, method of manufacture, characteristics suitability for use or quantity of the goods.
117 Article 222.  An indication of source may not be used in trade in relation to a product or service
where it is false or deceptive with respect  to its origin or where its use might mislead the public as to the origin,
source, quality, or any other characteristic of the product or service.
118 Article 221.  An indication of source shall be understood to be a name, expression, image or sign
that designates or evokes a particular country, region, locality, or place.
119 Article 215.  Country Members shall prohibit the use of an appellation of origin that identifies wines
or spirits as products of that type which do not originate form the place designated by the said appellation oforigin, even where the true origin of the product is stated or the geographical designation is given in translationor together with expressions such as "class" [clase], "type" [tipo
], "style" [estilo ], "imitation" [imitación ], or
other similar qualifiers.
Country Members may not prevent the continuous and similar use of an appellation of origin of another
country that identifies wines or spirits in relation to goods or services by any of their nationals who have been
using that appellation continuously for the same or other similar goods or services on the territory of the
member country concerned for a minimum of 10 years prior to 15 April 1994 or, in good faith, prior to that date.
120 Article 117.  The application for registration of an industrial design shall be filed with the competent
national office and shall contain:
(a) The request;
(b) a graphic or photographic representation of the industrial design.  In the case of two-dimensional
designs incorporated in a flat material, the repres entation may be replaced by a sample of the product
incorporating the design;
(c) such powers of attorney as may be necessary;(d) proof of payment of the prescribed fees;(e) where appropriate a copy of the document evidencing the assignment to the requesting party of the
right to industrial design registration;  and,IP/Q/VEN/1, IP/Q2/VEN/1,
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(f) where appropriate, a copy of any application for the registration of an industrial design or other title
of protection that may have been filed or obtained abroad by the same applicant or his principal which refers to
the same design as is claimed in the application filed in the member country.
Article 118.  The request in the application for industrial design registration shall be made on a form
and shall include the following:
(a) The request for industrial design registration;(b) the name and address of the applicant;
(c) the nationality or domicile of the applicant.  Where the applicant is a legal entity, its place of
incorporation shall be specified;
(d) a mention of the type or class of goods to which the design is applied, and the class and subclass to
which those goods belong;
(e) the name and domicile of the designer, where not the applicant himself;(f) where appropriate, the date and number and the office of filing of any application for registration of
an industrial design or other title of protection that may have been filed or obtained abroad by the same
applicant or his principal which relates to the same design as is claimed in the application filed in the membercountry;
(g) where appropriate, the name and address of the legal representative of the applicant;  and,(h) the signature of the applicant or his legal representative.Article 119.  The date of receipt of the applicatio n by the competent national office shall be considered
the filing date thereof, provid ed that it contained at least the following when it was received:
(a) A mention that registration of an industrial design is applied for;(b) particulars identifying the applicant or the person filing the application, and that will enable the
competent national office to communicate with that person;
(c) a graphic or photographic representation of the industrial design.  In the case of two-dimensional
designs incorporated in a flat material, the representation may be replaced by a sample of the material
incorporating the design;  and,
(d) proof of payment of the prescribed fees.Failure to comply with any of the requirements sp ecified in this Article shall cause the competent
national office to regard the application as not having been accepted for processing, and no filing date shall be
assigned to it.
Article 120.  The competent national office shall, within 15 working days following the filing date of
the application, examine whether it complies with the requirements of form specified in Articles 117 and 118.
If it emerges from the examination as to form that the application does not meet the requirements
referred to in the foregoing paragraph, the competent national office shall inform the applicant accordingly so
that he may rectify the application within a period of 30 days following the date of notification.  At the requestof a party, the period may be extended once for the same amount of time without any loss of priority.
Where on expiry of the period allowed him the applicant does not meet the requirements pointed out to
him, the application shall be considered abandoned and sh all lose its place in the order of precedence.  Without
prejudice to the foregoing, the competent national offi ce shall nevertheless respect the confidentiality of the
application.
Article 121.  Where the application meets the prescribed requirements, the competent national office
shall order its publication.
Article 122.  Within a period of 30 days following the date of publication, any person having a
legitimate interest may file one reasoned opposition with a view to invalidating the registration of the industrial
design.
At the request of a party, the competent national office shall grant one further period of 30 days for
substantiation of the opposition.
Reckless oppositions shall be subject to sanctions where national provisions so provide
Article 123.  Where oppositions has been filed, the competent national office shall inform the applicant
so that, within the following 30 days, he may put forward his own arguments or submit documents if he sees fit.
Article 124.  On the expiry of the period specified in the foregoing Article, or if no opposition has been
filed, the competent national office shall examine whether the subject-matter of the application conforms to the
provisions of Articles 113 and 116.
The competent national office shall not conduct any examination of the novelty of the application
ex officio , except where opposition has been filed that is supported by earlier rights in force or by a lack of
novelty of the industrial design.IP/Q/VEN/1, IP/Q2/VEN/1,
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The scope and nature of the rights conferred by registration of an industrial design and the
limitations on these rights are specified in Articles 128 to 133121 of Decision 486.
16. Please describe the procedure that must be followed to obtain protection for textile
designs and cite the relevant provisions of law or regulation.
The procedure to be followed to obtain protection for textile designs is the same as that used
for industrial designs inasmuch as textile designs are covered by Article 113122, which defines
                                                                                                                                                                    
Without prejudice to the foregoing, where the indust rial design clearly lacks novelty, the competent
national office may reject the application ex officio .
Article 125.  An application for registration of an industrial design may not be consulted by third
parties until the end of the period prior to the ordering of publication, except where the written consent of theapplicant has been obtained.
Any person who proves that an applicant for industrial design registration has sought to assert rights
against him that derive from the application my consult the file even prior to publication and even without thelatter's consent.
Article 126.  When the prescribed requirements have been complied with, the competent national office
shall grant the registration of the industrial design and issue the corresponding certificate to its owner.  If thoserequirements have not been complied with, the competent national office shall refuse registration.
Article 127. – For the ordering and classification of industrial designs, country Members shall use the
International Classification for Industrial Designs established by the Locarno Agreement of 8 October 1968, in
its currently amended form.
121 Article 128.  The registration of an industrial design shall have a term of 10 years, counted form the
filing date of the application in the country Member.
Article 129.  Registration of an industrial design shall confer on the owner thereof the right to prohibit
third parties from making use of the design concerned.  By virtue of that prohibition, the owner of a registration
shall be entitled to proceed against any third party who, without his consent, manufactures, imports, offers forsale, markets, or makes commercial use of products incorporating or reproducing the industrial design.
Registration shall likewise confer the right to pro ceed against any person who produces or markets a
product the design of which differs in only minor respect s from the protected design, or the appearance of which
is the same.
Article 130.  The protection conferred on an industrial design shall not extend to those elements or
characteristics the exact reproduction of which is nece ssary for the product incorporating the design to be
mechanically assembled or connected to another product of which it forms part.  That limitation shall not applyin the case of products the design of which is embodied in a shape intended to permit the assembly or multipleconnection of the products, or their interconnection within a modular system
Article 131.  The registration of an industrial design shall not give the right to prohibit a third party
from engaging in commercial acts in relation to a product incorporating or reproducing that design after the
product in question has been brought on to the market in any country by its owner or by another person with hisconsent or economically linked to him.
For the purposes of the foregoing paragraph, two persons shall be regarded as economically linked
where one of them is able to exert a decisive direct or indirect influence on the other with respect to the
exploitation of the industrial design, or where a third party is able to exert such an influence on both persons.
Article 132.  The competent national authority shall decree, either ex officio  or at the request of any
person and at any time, the absolute invalidity of  the registration of an industrial design where:
(a) The subject matter of the registration does not constitute an industrial design in terms of
Article 113;
(b) the industrial design does not meet the requirements of protection specified in Article 115;
(c) registration has been granted for subject matter th at is excluded from industrial design protection
under the provisions of Article 116;  or,
(d) the causes of absolute invalidity provided for in national legislation for administrative acts are
present.
Article 133.  The provisions of Articles 17, 34, 53(a), (b), (c) and (d), 56, 57, 70, 74, 76, 77, 78, and 79
shall be applicable to industrial designs.IP/Q/VEN/1, IP/Q2/VEN/1,
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industrial designs and is consistent with the TRIPS Agreement because it does not oblige country
Members to apply a special procedure.
F. PATENTS
17. Please describe in detail the way in which the patent law of Venezuela implements
Article 27 of the TRIPS Agreement, indicating any exceptions provided for, and including
details regarding the protection for micro-organisms and non-biological and microbiological
processes and plant varieties.  Please cite the relevant provisions of the law.
Article 14123 of Decision 486 – Common Industrial Property Regime – reproduces the terms
of Article 27.1 of the TRIPS Agreement.
With regard to the exceptions provided for in Article 27.2 and 27.3 of the TRIPS Agreement,
Article 20124 of Decision 486 specifies what is not patentable.
18. Please describe in detail the rights provided patent holders under the patent law of
Venezuela and cite the relevant provisions of law.
The rights conferred by patents in Venezuela are set out in Title II, Chapter V, Articles 50 to
58125, of Decision 486 – Common Industrial Property Regime.
                                                                                                                                                                    
122 Article 113.  The particular appearance of a product resulting from any arrangement of lines or
combination of colours, or any two-dimensional or three-dimensional outward shape, line, outline, form, texture
or material that does not alter the intended use or purpos e of the said product shall be considered an industrial
design.
123 Article 14.  The country Members shall grant patents for inventions, whether products or processes,
in all fields of technology, provided that they are new,  involve an inventive step, and are capable of industrial
application.
124 Article 20.  The following shall not be patentable:
(a) Inventions, the commercial exploitation of which on the territory of the Member country
concerned has necessarily to be prohibited in order to protect law and order or morality.  To
that end the commercial exploitation of an invention shall not be considered contrary to lawand order or morality solely owing to the existence of a legal or administrative provision thatprohibits or regulates such exploitation;
(b) inventions, the commercial exploitation of which in the country Member concerned has
necessarily to be prohibited in order to protect the health or life of persons or animals, or to
preserve plants or the environment.  To that end the commercial exploitation of an invention
shall not be considered contra ry to the health or life of persons or animals or liable to
prejudice the conservation of plants or the envi ronment solely on account of the existence of a
legal or administrative provision that prohibits or regulates such exploitation;
(c) plants, animals, and essentially biological processes for the production of plants or animals
that are not non-biological or microbiological processes;
(d) therapeutic or surgical methods for the treatment of humans or animals, and also diagnostic
methods applied to human beings or animals.
125 Article 50.  The patent shall have a term of 20 years form the filing date of the application for it in
the Member country concerned.
Article 51.  The scope of the protection conferred by the patent shall be determined by the content of
the claims.  The description and drawings and any biological material deposited, shall be used for theirinterpretation.
Article 52.  The patent shall confer on its owner th e right to prevent third parties who do not have his
consent from engaging in any of the following acts:
(a) Where the patent claims a product:
(i) manufacturing the product;
(ii) offering the product for sale, selling, or using it; or importing it for any of those purposes; and,IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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(b) where the patent claims a process:
(i) using the process;  or
(ii) carrying out any of the acts mentioned under subparagraph (a) in relation to a product
obtained directly by means of the process.
Article 53.  The owner of the patent may not exercise the right referred to in the foregoing Article in
relation to the following acts:
(a) Acts performed in a private circle for non-profit-making purposes;
(b) acts performed for exclusively experimental purposes on the subject-matter of the patented
invention;
(c) acts performed solely for the purposes of teaching or scientific or academic research;(d) acts referred to in Article 5 ter of the Paris Convention for the Protection of Industrial
Property;
(e) where the patent protects biological material that can be reproduced, other than plants, using
that material as the basis with which to obt ain viable new material, except where to do so
requires repeated use of the patented subject-matter.
Article 54.  The patent shall not give the right to prohibit a third party from engaging in commercial
acts in relation to a product protected by the patent after that product has been brought on to the market in anycountry by the owner of the patent, or by another person who has obtained his consent or is economicallyassociated with him.
For the purposes of the foregoing paragraph, two persons shall be considered economically associated
where one can directly or indirectly exercise a decisi ve influence on the other concerning the working of the
patent, or where a third party can exercise such an influence on both.
Where the patent protects biological material, that can be reproduced, the patent shall not extend to the
biological material obtained by reproduction, multiplication, or propagation of the material that has been
brought on to the market in accordance with the first paragraph above, provided that the reproduction,
multiplication or propagation was necessary so that the material might be used to achieve the purposes for whichit was brought on to the market, and provided that the material derived form such use is not used formultiplication or propagation purposes.
Article 55.  Without prejudice to the provisions of this Decision on the invalidation of patents, the
rights conferred by the patent may not be asserted against a third party who, in good faith, before the priority or
filing date of the application on which the patent was granted, was already using or exploiting the invention or
had made real or effective preparations for such use.
In such a case, the said third party shall have the righ t to start or continue the use or exploitation of the
invention, but that right may only be assigned or transferred together with the establishment or company inwhich the use or exploitation is taking place.
Article 56.  A granted or pending patent may be transferred by inter vivos  transaction or by succession.
Any transfer of a granted patent shall be registered with the competent national office.  Failure to
register shall cause the transfer to be unenforceable against third parties.
For the purposes of registration, tran sfer shall be evidenced in writing.
Any interested party may seek the registration of a transfer.Article 57.  The owner of a granted or pending patent may license the working of the invention
concerned to one or more third parties.
Any licence for the working of a granted patent shall be registered with the competent national office.
Failure to register shall cause the licence to be unenforceable against third parties.
For the purposes of registration the licence shall be evidenced in writing.Any interested party may apply for registration of a licence.Where there has been any change in the name or address of the owner of the patent in the course of the
term of the licence contract, the owner of the registra tion shall inform the compet ent national office accordingly.
If that is not done, any notification effected according to the particulars a ppearing in the register entry shall be
deemed valid.
Article 58.  The competent national authority shall not register licence contracts for the working of
patents that do not conform to the Common Provisions on the Treatment of Foreign Capital and on Trademarks,Patents, Licences and Royalties, or do not conform to Community or national provisions on business practices
that restrict free competition.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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19. Please describe in detail any provisions in the laws of Venezuela permitting
unauthorized use of a patent, citing the relevant provisions of law, and describe in detail the
conditions under which such use can occur.
Articles 61 to 69126 of Chapter VII of Decision 486 – Common Industrial Property Regime –
are concerned with the compulsory licensing regime and describe when and under what terms the
                                                     
126 Article 59.  The owner of the patent shall be under the obligation to exploit the patented invention in
any member country, either directly or through a person authorized by him.
Article 60.  For the purposes of this Chapter, exploitation shall be understood to mean the industrial
manufacture of the patented product or the full use of the patented process, including the distribution and
marketing of the results thereof, in a manner sufficient to meet the needs of the market.  Exploitation shall also
be understood to mean the import of the patented product, including distribution and marketing, where it is doneon a scale sufficient to meet the needs of the market.  Where the patent relates to a process that does not result in
a product, the requirements of marketing and distribution shall not be enforceable.
Chapter VII
Compulsory Licensing Regime
Article 61.  On the expiry of a period of three years following the grant of the patent, or four years
following the application for the patent, whichever is the longer, the competent national office may grant acompulsory licence for the industrial manufacture of the product to which the patent relates, or for the full use of
the patented process, at the request of any interested party, but only where, at the time of the request, the patent
has not been worked as provided in Articles 59 and 60 in the country Member in which the licence is appliedfor, or where the working of the invention has been suspended for more than a year.
The compulsory licence shall not be granted if the owner of the patent provides legitimate reasons for
his failure to act, which may be reasons of force majeure , in accordance with the domestic provisions of each
country Member.
A compulsory licence shall only be granted where the person who requests it has previously attempted
to obtain a contractual licence from the owner of the patent on reasonable commercial terms and conditions, andwhere that attempt has not had any effect within a reasonable time.
Article 62.  The grant of compulsory licences referred to in the foregoing Article shall proceed subject
to notification of the owner of the patent in such a way that, within the following 60 days, he may present his
arguments if he sees fit.
The competent national office shall determine the scope or extent of the licence, and in particular shall
specify the period for which it is granted, its subject-matter, the amount of the royalties and the conditions forthe payment thereof.  The said royalties shall be adequate, depending on the particular circumstances of eachcase, due regard being had especially to the economic value of the authorization.
A challenge to the compulsory licence shall not prevent exploitation or have any effect on period that
have not expired.  Its introduction shall not prevent the owner of the patent from charging, in the intervening
period, the royalties specified by the competent national office in respect of the part not challenged.
Article 63.  At the request of the owner of the patent or the licensee, the licensing conditions governing
may be altered by the competent national office where new circumstances dictate, and in particular where theowner of the patent grants another licence on terms more favourable than those previously granted.
Article 64.  The licensee shall be bound to exploit the invention within a period of two years following
the date of grant of the licence, unless he justifies his inaction with a claim of unforeseen circumstances or force
majeure .  If he fails to do so, the competent national office shall revoke the compulsory licence at he request of
the owner of the patent.
Article 65.  On a declaration by a country Member of the existence of public interest, emergency or
national security considerations, and only for as long as those considerations obtain, the patent may be made
subject to compulsory licensing.  In that case the competent national office shall grant such licences as may be
applied for.  The owner of the patent so licensed shall be notified where reasonably possible.
The competent national office shall specify the scope or extent of the compulsory licence, and in
particular the term for which it is granted, its subject-matter and the amount of royalties and the conditions forthe payment thereof.
The grant of a compulsory licence for reasons of public interest shall not diminish the right of the
owner of the patent to continue to work the said patent.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Venezuelan State may grant a compulsory licence, consistent with the provisions of Article 31 of the
TRIPS Agreement.
20. What term of protection does the patent law of Venezuela provide for patents.  Please
describe any provisions for extension of the term of protection, and cite the relevant provisions
of law.
The term of protection is established in Article 50127 of Decision 486 – Common Industrial
Property Regime.
Venezuela's legislation does not provide for the possibility of extending the term of protection
for patents.
                                                                                                                                                                    
Article 66.  The competent national office shall, either ex officio or at the request of a party, and after
having obtained the consent of the national authority on free competition, grant compulsory licences where
practices are noted that adversely affect free competition, especially an abuse by the owner of the patent of his
dominant position on the market.
In such cases, when the amount of royalties is determined, due regard shall be given to the need to
correct anti-competitive practices.  The competent nationa l office shall refuse to revoke the compulsory licence
where it is probably that the circumstances that gave rise to it could recur.
Article 67.  The competent national office shall grant a licence at any time where it is applied for by the
owner of a patent the working of which requires the use of another, and where the said owner has been unable to
secure a contractual licence on reasonable terms.  Such  a licence shall, without prejudice to the provisions of
Article 68, be subject to the following:
(a) The invention claimed in the second patent must embody substantial technological progress in
relation to that claimed in the first;
(b) the owner of the first patent shall have the right to a cross-licence on reasonable terms for
exploitation of the invention claimed in the patent;  and
(c) the licence under the first patent may not be assigned without assignment also of the second.
Article 68.  Compulsory licences shall be subject to the following in addition to the foregoing
provisions:
(a) They shall not be exclusive, and no sublicence may be granted;(b) they may only be transferred with the part of the enterprise or its intangible assets that enable
them to be worked;  the transfer shall be evidenced in writing and registered with the
competent national office.  Failing this they shall be devoid of legal effect;
(c) they may be revoked, subject to the adequate protection of the legitimate interests of persons
who have been authorized under them, where the circumstances that gave rise to them nolonger obtain and are unlikely to recur;
(d) their scope and duration shall be limited accord ing to the purposes for which they have been
granted;
(e) in the case of patents for invention that protect semiconductor technology, the compulsory
licence shall be granted only for public, non-commercial use or to remedy or rectify a practicedeclared contrary to free competition by the competent national authority under Articles 65and 66;
(f) they shall provide for adequate remuneration according to the circumstances of each case, due
regard being had to their economic value, without prejudice to the provisions of Article 66;
and
(g) their use shall be mainly to supply the domestic market.Article 69.  Compulsory licences that do not conform to the provisions of this Chapter shall be devoid
of legal effect.
127 Article 50.  The Patent shall have a term of 20 years from the filing date of the application for it in
the Member country concerned.IP/Q/VEN/1, IP/Q2/VEN/1,
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G. LAYOUT -DESIGNS OF INTEGRATED CIRCUITS
21. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Venezuela, including the term of protection, and cite the relevant provisions of
law.
The question of integrated circuits is dealt with in Title IV, Articles 86 to 107128 of Decision
486 – Common Industrial Property Regime – under the following headings:  Definitions (Chapter I);
                                                     
128 Title IV
Layout-Designs of Integrated CircuitsArticle 86.  For purposes of this Title:
(a) "Integrated circuit" means a product, in its final or an intermediate form, in which the
elements, at least one of which is an active element, and some or all of the interconnections
are an integral part of the body or surface of a piece of material, and which is intended to be
perform an electronic function;
(b) "layout-design" means the three-dimensional disposition, however expressed, of the elements,
at least one of which is an active element, and the interconnection of an integrated circuit, orsuch a three-dimensional disposition prepared  for an integrated circuit intended for
manufacture.
Chapter II
Requirements for the Protection of the Layout-Designs of Integrated Circuits
Article 87.  A layout-design shall be protected where it is original.
A layout-design shall be considered original when it is the result of intellectual effort on the part of its
creator and is not commonplace in the integrated circui t industry, it shall be considered original if the
combination of those elements, as a whole, meets that condition.
Where a layout-design consists of one or more elements that are commonplace in the integrated circuit
industry, it shall be considered original if the combination of those elements, as a whole, meets that condition.
Chapter III
Owners
Article 88.  The right to the registration of the layout-design of an integrated circuit shall belong to its
designer.  That right may be transferred by inter vivos  transaction or by succession.
Where the layout-design has been designed by two or more persons working together, the right to
protection shall belong to them jointly.
Where the layout-design has been created under a co mmission contract or service contract entered into
for that purpose, or in the course of employment relations where the designer has that among his duties, the rightto protection shall belong to the person who contracted for the work or service, or to the employer, unless
otherwise provided by contract.
Chapter IV
The application for Registration
Article 89.  The application in respect of the layout-design of an integrated circuit shall be filed with
the competent national office and shall contain the following:
(a) The request;
(b) a copy or drawing of the layout-design and, where the integrated circuit has been
commercially exploited, a specimen thereof;
(c) where applicable, a declaration stating the date of first commercial exploitation of the
integrated circuit anywhere in the world;
(d) where applicable, a declara tion stating the year of creation of the integrated circuit;
(e) a description that defines the electronic functio n that the integrated circuit incorporating the
layout-design has to perform;
(f) a copy of any application for registration or any title of protection that may have been filed or
obtained abroad by the same applicant or his principal and which refers entirely or partly tothe same layout-design as that for which the application is being filed in the country Member;
(g) any powers of attorney that may be necessary;  and
(h) proof of payment of the prescribed fee.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Article 90.  The request in the application for registration of the layout-design of an integrated circuit
shall be set down on a form and shall contain the following:
(a) The request that registration be granted;
(b) the name and address of the applicant;(c) the nationality or domicile of the applicant.  Where the applicant is a legal entity, its place of
incorporation shall be specified;
(d) the name and domicile of the designer of the layout-design where he is not the applicant;
(e) where applicable, the name and address of the legal representative of the applicant;
(f) where applicable, the date, number, and office of filing of any application for registration or
other title of protection that may have been filed or obtained abroad by the same applicant orhis principal and which refers entirely or partly to the same layout-design for which theapplication is filed in the country Member;  and
(g) the signature of the applicant or of his legal representative.
Article 91.  Where the layout-design for which registration is sought includes a trade secret, the
applicant shall file, in addition to the requisite graphic representation, a representation of the layout-design in
which the parts containing the said secret have been omitted, erased or obliterated.  The remaining parts must besufficient for the identification of the layout-design to be possible in all cases.
Article 92.  The date of receipt of an applicatio n by the competent national office shall be considered
its filing date thereof provided that, at the time of  receipt, it contained at least the following elements:
(a) An express statement or indication that the registration of a layout-design is applied for;
(b) the particulars identifying the applicant or person filing the application, or that will enable the
competent national office to communicate with that person;
(c) a graphic representation of the layout-design for which registration is sought;(d) proof of payment of the prescribed fees.
Failure to comply with any one of the requirements specified in this Article shall cause the competent
national office to regard the application as not having been accepted for processing, and no filing date shall be
assigned to it.
Chapter V
Processing of the Application
Article 93.  The competent national office shall examine whether the subject-matter of the application
constitutes a layout-design according to the definition in Article 86, and whether the application includes theelements specified in Articles 89, 90, and 91.  The comp etent national office shall not examine the originality of
the layout-design ex officio except where a reasoned opposition has been filed.
Where any omission or defect is noted, the applicant shall be notified so that he may make the
necessary correction within a period of three months, with the warning that otherwise the application will beconsidered abandoned and be shelved ex  officio.  Where the applicant fails to make the correction in the time
specified, the competent national office shall act on the warning in the form of a reasoned resolution.
Article 94.  When the application has been examined , the competent national office shall direct that it
be announced by the publication of a notice in the relevant official journal at the expense of the person
concerned.
The relevant provisions on applications for patents for inventions shall be applicable to the publication
of the notice.
Article 95.  Any interested party may file a reasoned opposition with the competent national office,
including such information or documents as may be useful in ascertaining the registrability of a layout-design.
The relevant provisions on applications for patent s for invention shall be applicable to the opposition.
Article 96.  Where the prescribed requirements ha ve been complied with, the competent national office
shall register the layout-design and issue a certificate of registration which shall reproduce the particulars
contained in the corresponding register entry.
Chapter VI
Rights Conferred by Registration
Article 97.  Where the layout-design has been commercially exploited anywhere in the world, the
application for registration shall be filed within the competent national office of the country Member within aperiod of two years following the date of first commercial exploitation of the layout-design.  If the application is
filed after that period has expired, registration shall be refused.
A layout-design that has not been commercially exploited anywhere in the world may only be
registered if an application is filed with the competent national office of the country Member within a period ofIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 87
                                                                                                                                                                    
15 years from the last day of the year in which the layout -design was created.  If the application is filed after that
period has expired, registration shall be refused.
Article 98. The exclusive rights in a registered layout-design shall have a term of ten years from the
earliest of the following dates:
(a) The last day of the year in which the first commercial exploitation of the layout-design
occurred anywhere in the world;
(b) the date on which the application for registration was filed with the competent national office
of the country Member concerned.
The protection of a registered layout-design shall lapse in any event on the expiry of a period of
15 years from the last day of the year in which the layout-design was created.
Article 99.  Protection shall apply regardless of whether the integrated circuit incorporating the
registered layout-design is contained in an article, and regardless of whether the layout-design has beenincorporated in an integrated circuit.
The registration of a layout-design of an integrated circuit shall confer on its owner the right to prohibit
third parties from engaging in any of the following acts:
(a) Reproducing, by incorporation in an integrated  circuit or any other way, all or part of the
protected layout-design that meets the condition of originality under Article 87;
(b) marketing, importing, offering for sale, selling, or otherwise distributing the protected
integrated circuit layout-design or an  integrated circuit incorporating it;
(c) marketing, importing, offering for sale, selling, or otherwise distributing an article in which
the protected integrated circuit is incorporated, but only to the extent that is still contains anunlawfully reproduced layout-design.
The protection conferred by registration shall relate only to the layout-design itself, and shall not
extend to any concept, process, system, technique, or  information that is coded or incorporated into the
layout-design.
Article 100.  The rights conferred by registration of the layout-design may only be asserted against acts
performed for industrial or commercial purposes.  Registration shall not confer the right to prevent the followingacts:
(a) Those performed in a private circle for non-profit-making purposes;(b) those performed solely for the purposes of evaluation, analysis, or experimentation;
(c) those performed solely for the purposes of teaching or scientific or academic research;
(d) those referred to in Article 5ter of the Paris Convention for the Protection of Industrial
Property.
Article 101.  Registration of a layout-design shall not confer the right to prohibit a third party from
engaging in commercial acts in relation to protected layout -designs, the integrated circuits that incorporate them
or articles that contain such integrated circuits as fr om the time at which they have been brought on to the
market in any country by the owner or by another person with his consent or economically linked to him.
For the purposes of the foregoing paragraph, two persons shall be understood to be economically
linked where one may directly or indirectly exert a decisive influence on the other with the respect to
exploitation of the protected layout-design, or when a third party can exert such an influence on both persons.
Article 102.  The owner of the registration of a layout-design may not prohibit a third party from
engaging in acts of industrial or commercial exploitation in relation to a layout-design created by a third party as
a result of evaluation or analysis of the protected layout-d esign, provided that the la yout-design so created meets
the condition of originality provided for in Article 87.  He likewise may not prevent such acts in relation to theintegrated circuits that incorporate the layout-designs  so created, or articles incorporating such integrated
circuits.
Article 103.  The owner of the registration of a layout-design may not prohibit a third party from
engaging in the acts mentioned in Article 99 in relation to  another original layout-design created independently
by a third party, even where it is identical.
Article 104.  It shall not be considered an infringement of the rights in a registered layout-design when
one of the acts referred to in Article 99 is performed in relation to an integrated circuit that unlawfullyincorporates a layout-design, or an article containing th at integrated circuit, where the person who made them
did not know, and had no reasonable means of knowing, that the layout-design had been reproduced unlawfully.
Form the time at which that person is informed of the unlawfulness of the layout-design, he may continue to
engage in the said act in relation to goods still in his po ssession or on order since before that time, but, at theIP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
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Requirements for the Protection of the Layout-Designs  of Integrated Circuits (Chapter II);  Owners
(Chapter III);  The Application for Registration (Cha pter IV); Processing of the Application (Chapter
V); Rights Conferred by Registration (Chapter VI);  and The Licensing Regime (Chapter VII).
H. PROTECTION OF UNDISCLOSED INFORMATION
22. Please describe in detail how the laws of Venezuela provide for the protection of
undisclosed information, as required by Article 39.2 of the TRIPS Agreement, and provide
citations of the relevant provisions of law.
Articles 260 and 262 of Decision 486 – Comm on Industrial Property Regime – (provisions
corresponding to those of Article 39.2 of the TRIPS Agreement) define what should be considered abusiness secret, who may use this information, and the criteria for protecting undisclosed information,
and set out a list of acts performed in relation to a business secret which constitute unfair competition.
23. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical prod ucts submitted to the government in order to
obtain marketing approval in Venezuela a nd cite the relevant provisions of law.
According to Article 266 of Decision 486 – Common Industrial Property Regime – (which
corresponds to Article 39.3 of the TRIPS Agreement), when country Members require, as a condition
of marketing approval for pharmaceutical products or agricultural chemical products that utilize new
                                                                                                                                                                    
request of the owner of the registration, he shall pay compensation equivalent to a reasonable royalty based on
that which he would have paid for contractual licence.
Article 105.  A layout-design registration that has been granted or is pending may be transferred by
inter vivos  transaction or by succession.
Any transfer of the layout-design registration sha ll be registered with the competent national office.
Failure to register shall cause the transfer  to be unenforceable against third parties.
For the purposes of registration, the transfer shall be evidenced in writing.
Any interested party may apply for registration of a transfer.
Chapter VII
The Licensing Regime
Article 106.  The owner of a layout-design registration that has been granted or is pending may licence
one or more third parties to exploit the layout-design concerned.
Any licence for the exploitation of the layout-design shall be registered with the competent national
office.  Failure to register shall cause the licence to be unenforceable against third parties.
For the purposes of registration, the licence shall be evidenced in writing.Any interested party may apply for registration of a licence.When any change occurs with respect to the name or address of the owner of the registration of a
layout-design in the course of the term of the contract, the owner of the registration shall inform the competentnational office accordingly.  If that is not done, any no tification made according to the particulars appearing in
the register entry shall be deemed valid.
Article 107.  In the event of failure to exploit or for reasons of public interest, especially national
emergency, public health or national security, or in order to remedy an anti-competitive practice, the competentauthority may, at the request of an interested pa rty or competent authority, direct at any time:
(a) That a layout-design that is registered or pending shall be used or exploited industrially or
commercially by a State agency or by one or more persons under public or private law who
have been designated for the purpose;  or
(b) that such layout-design shall remain open to the grant of one or more compulsory licences, in
which case the competent authority shall gran t a licence to any person applying therefor,
subject to established conditions.
The conditions laid down for the grant of compulsory licences for patents shall be applicable to the
grant of a compulsory licence in relation to a layout-design.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 89
chemical entities, the submission of undisclosed test or other data the production of which entailed a
considerable effort, they shall protect such data against unfair commercial use.  Furthermore, such
data shall be protected against any disclosure, except where necessary to protect the public or unless
steps are taken to ensure that the data are protected against unfair commercial use.
24. Are other applicants for ma rketing approval for their own versions of a previously
approved pharmaceutical or agricultural chemical product permitted to rely on data submitted
by the earlier applicant?  If so, how long a period of exclusivity is given the earlier applicant
before such reliance becomes possible.
Any person has the right to request and obtain from the competent authorities authorization to
market their own version of a previously approved pharmaceutical or agricultural chemical product
provided that it complies with the relevant regu lations.  The authority which approves marketing may
not discriminate between previous or subsequent applicants and must treat them all equally in
accordance with the law.  Pursuant to Article 266 of Decision 486, the marketing approval authority
shall not grant third parties access to undisclosed test or other data the production of which entailed aconsiderable effort and which have been provided by another person (subject to the exceptions
specified in Article 266, which corresponds to Article 39.3 of the TRIPS Agreement).  This protection
is for an indefinite term and shall be maintained as long as the requisite conditions persist.
I. 
ENFORCEMENT – GENERAL OBLIGATIONS , CIVIL AND ADMINISTRATIVE PROCEDURES AND
REMEDIES AND PROVISIONAL MEASURES
25. Please describe in detail the manner in which the laws of Venezuela provide for effective
action against infringement of intellectual property rights, as required by Article 41.1 of the
TRIPS Agreement.
Decision 486 of the Commission of the Cartagena Agreement and domestic legislation
provide for a range of actions and procedures to combat infringements of intellectual property rights.
They are geared to the adoption of effective measures and the prevention of infringements.
Industrial property:
1. Action claiming ownership:  Title XIV, Article 237129 of Decision 486 – Common
Industrial Property Regime.
2. Action for nullity:  Title VI, Chapter VII, Article 172 of Decision 486 – Common
Industrial Property Regime.
                                                     
129 Article 237.  Where a patent or an industrial design registration has been applied for or obtained by
a person who does not have the right to it, or to the detriment of another person who also has the right to it, the
person affected may claim ownership of it before the competent national authority, and the request that the
pending application or the rights granted be transferred to him, or that he be recognized as joint applicant for orjoint owner of the said rights.
Where the registration of a mark has been applied for or obtained to the detriment of another person
who also had the right to it, the person affected may so claim before the competent national authority, requesting
that he be recognized as joint applicant for or joint owner of the said rights.
Where the domestic legislation of the country Member permits, indemnification for injury and
prejudice may also be claimed in the same action.
This action shall be barred after four years following the date of grant of the rights or two years after
the subject-matter of the protection began to be exploited or used in the country by the person who secured therights, whichever period expires earlier.  The action shall not be barred where the person who obtained the rights
applied for them in bad faith.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 90
3. Action for infringement of rights: Title XV, Articles 238 to 244130 of Decision 486 –
Common Industrial Property Regime.
                                                     
130 Article 238.  The owner of rights protected under this Decision may bring an action before the
competent national authority against any person who infr inges his rights.  He may also proceed against any
person who engages in acts that indicate the imminence of an infringement.
Where the domestic legislation of the country Member permits, the competent national authority may
institute the infringement pro ceedings provided for in the said legislation ex officio.
In the case of joint ownership of rights, any of the joint owners may bring an action for infringement
without the consent of the others being necessary, except where otherwise agreed between the joint owners.
Article 239.  The owner of a patent shall have the right to bring legal action for injuring and prejudice
for unauthorized use of the invention or utility model during the period between the date on which it acquirespublic character and the relevant application may be consulted, and the date of grant of the patent.
Compensation shall be available only in respect of the subject-matter covered by the patent granted, and shall be
calculated according to the exploitatio n actually engaged in by the defendant during the period in question.
Article 240.  In cases of alleged infringement of a patent whose subject-matter is a process for
obtaining a product, the defendant in question shall be responsible for proving that the process used by him toobtain the product is different from the process protected by the patent allegedly infringed.  To that end it shall
be presumed, in the absence of proof to the contrary, that any identical product produced without the consent of
the owner of the patent has been obtained by the patented process if:
(a) The product obtained using the patented process is new;  or(b) there exists a reasonable possibility of the identical product having been manufactured using
the process, and the owner of the patent for the latter is unable to establish, after reasonableeffort, what process was actually used.
In the submission of proof to the contrary, due regard shall be had to the legitimate interests of the
defendant or accused with respect to the protection of his business secrets.
Article 241.  The plaintiff or the party reporting the offence may apply to the competent national
authority to have one or more of the following measures ordered, among others:
(a) The cessation of the acts constituting the infringement;(b) indemnification for injury or prejudice;
(c) withdrawal from commercial channels of the goods resulting from the infringement, including
containers, packaging, labels, printed matter or  advertising or other material, and also the
material and means that mainly served for the commission of the infringement;
(d) prohibition of the import or export of the goods, materials or means referred to in the
foregoing subparagraph;
(e) the award of ownership of the goods, materials or means referred to in subparagraph (c), in
which case the value of the property shall be set against the amount of the indemnification for
injury and prejudice;
(f) the adoption of the necessary measures to ensure that the infringement does not continue or
recur, including destruction of the goods, materials or means referred in subparagraph (c) orthe temporary or permanent closure of the establishment of the defendant or accused;  or
(g) publication of the sentence handed down agains t the infringer and notification thereof, at the
latter's expense, to all interested parties.
In the case of goods that bear a false mark, the elimination or removal of the mark shall be supported
by action intended to prevent those goods being brought into commercial channels.  Those goods shallmoreover, not be cleared for re-export in the same st ate or made subject to a different customs procedure.
Exceptions may be made in cases duly categorized by the competent national authority, or where the
express authority of the owner of the mark ahs been obtained.
Article 242.  Country Members may provide that, unless the measure is disproportionate to the
seriousness of the infringement, the legal authorities may order the infringer to inform the owner of the rights ofthe identity of third parties who have participated in the production and distribution of the infringing goods orservices, and of the distribution channels.
Article 243.  For the purposes of calculating indemnification for injury and prejudice, due regard shall
be had, among other things, to the following criteria:IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 91
4. Precautionary measures: Title XV, Chapter II, Articles 245 to 249131 of Decision 486
– Common Industrial Property Regime.
5. Border measures: Title XV, Chapter III, Articles 250 to 256132 of Decision 486 –
Common Industrial Property Regime.
                                                                                                                                                                    
(a) The actual harm and the loss of revenue suffered by the owner of the rights as the result of the
infringement;
(b) the amount of the profits earned by the infringer as a result of the infringing acts;
(c) the price that the infringer would have paid for a contractual licence, due regard being had to
the market value of the rights infringed and to  contractual licences that have already been
granted.
Article 244.  Infringement actions shall be barred after two years following the date on which the
owner had knowledge of the infringement, or in any event after five years following the time at which the
infringement was last committed.
131 Article 245.  Any person who institutes or inte nds to institute proceedings for infringement may
request the competent national authority to order immedi ate precautionary measures with a view to preventing
the infringement from being committed, avoiding its cons equences, securing or preserving evidence or ensuring
the effectiveness of the action or compensation for injury and prejudice.
The precautionary measures may be requested before the action is brought, in conjunction with it or
after it had been brought.
Article 246.  The following precautionary measures among others may be ordered:
(a) The immediate cessation of the acts constituting the alleged infringement;(b) the withdrawal from commercial channels of all goods resulting from the alleged
infringement, including containers, packaging, labels, printed matter or advertising, or other
material,  and also the material and means th at mainly served for the commission of the
infringement;
(c) the suspension of the import or export of the goods, materials or means referred to in the
foregoing subparagraphs;
(d) the provision of sufficient security by the alleged infringer;  and(e) the temporary closure of the establishment of the defendant or accused, where necessary to
avoid the continuation or recurrence of the alleged infringement.
Where the national legislation of the Member country permits, the competent national authority may
order the application of precautionary measures ex officio.
Article 247. – A precautionary measure shall be ordered only where the person requesting it proves his
entitlement to act and the existence of the rights infringed, and submits evidence that allows it to be reasonablyassumed that the infringement has been committed or is imminent.  The competent national authority may ask
the person requesting the measure to provide sufficient security or guarantees before ordering it.
The person who requests a precautionary measure in relation to particular goods shall supply the
necessary information and a sufficiently detailed and accu rate description for the allegedly infringing goods to
be identified.
Article 248. – Where a precautionary measure has been implemented without the intervention of the
other party, it shall be notified to the party affected immediately after it has been implemented.  The affected
party may apply to the competent national authority to have the measure rescinded.
In the absence of national provisions to the cont rary, any precautionary measure implemented without
the intervention of the other party shall lapse as a right if the infringement action is not initiated within theten days following the implementation of the measure.
The competent national authority may amend, rescind or confirm the precautionary measure.
Article 249. – Precautionary measures shall apply to the products of the alleged infringement and to the
materials or means mainly used for committing it.
132 Border Measures
Article 250. – The owner of the registration of a mark who has good reason to believe that the import
or export of goods infringing that registration is going to take place may request the competent national
authority to suspend customs clearance.  The conditions and guarantees provided for in the domestic legislation
of the Member country shall be applicable to the request and to the order issued by the authority.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 92
6. Acts of unfair competition:
(a) Title XVI, Chapter I, Articles 258 and 259133 of Decision 486 – Common
Industrial Property Regime;
(b) Title II, Article 17134 and Titles IV, V, VI and VII, Articles 32 to 56 of the 
Law on the Promotion and Protection of Free Competition.
                                                                                                                                                                    
Any person who requests the implementation of border measures shall provide the competent national
authority with the necessary information and a description of the goods to which the alleged infringement relatesthat is sufficiently detailed and accurate for them to be recognized.
If the domestic legislation of the country Member permits the competent national authority may order
the application of border measures ex officio.
Article 251. 
 The competent national authority may allow the owner of the mark to substantiate his
allegations by taking part in the inspection of the merchandise detained.  The importer or exporter of the said
merchandise shall have the same right.
When the inspection is conducted, the competent national authority shall make the necessary
arrangements for such confidential information as may be relevant to be protected.
Article 252.  When the applicable conditions and gu arantees been fulfilled, the competent national
authority shall order or refuse the suspension of customs clearance and shall inform the requesting party
accordingly.
When suspension is ordered, the notification shall give the name and address of the sender, importer,
exporter and consignee of the merchandise, and also the quantity of that merchandise affected by thesuspension.  The suspension shall likewise be notified to the importer or exporter of goods.
Article 253.  On the expiry of ten working days following the date of notification of the suspension of
customs clearance without the requesting party having initiated the infringement action, or without the
competent national office having prolonged the suspen sion, the measure shall be lifted and the customs
clearance of the merchandise detained shall proceed.
Article 254.  When the action for infringement has been initiated the party against whom the measure
has been ordered may appeal to the competent national authority.  The competent national authority may amend,
revoke or confirm the suspension.
Article 255.  Once a finding of infringement has been made, the goods bearing counterfeit marks that
have been impounded by the competent national authority may not be either re-exported or subjected to adifferent customs procedure except in cases duly specifi ed by the competent national authority or where the
express authority of the owner of the mark has been obtained.
Without prejudice to such other actions as may be available to the owner of the rights, and subject to
the defendant's right to appeal to a judicial authority,  the competent national authority may order the destruction
or confiscation of the infringing merchandise.
Article 256.  Small quantities of merchandise that have no commercial character and form part of the
personal baggage of travellers or are sent in small quantities shall be excluded from the application of theprovisions of this Chapter.
133 Article 258.  Any act involving industrial property that is performed in a business environment and
is contrary to proper usage and pr actice shall be considered unfair.
Article 259. – The following in particular shall be considered acts of unfair competition in connection
with industrial property:
(a) Any act capable of creating confusion, by whatever means, as to the establishment, goods or
industrial or commercial activity of a competitor;
(b) false assertions in the course of trade capable of discrediting the establishment, goods or
industrial or commercial activity of a competitor;
(c) statements or assertions the making of which in  the course of trade could mislead the public as
to the nature, method of manufacture, characteristics, suitability for use or quantity of thegoods.
134 Article 17. – Trade policies aimed at the elimination of competitors through acts of unfair
competition shall be prohibited, in particular the following acts:IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 93
7. Criminal procedures:
(a) Title XV, Chapter IV, Article 257135 of Decision 486 – Common Industrial
Property Regime;
(b) Chapter VII, Articles 97 to 105 of the Industrial Property Law;
(c) Title VI, Chapter V, Articles 338 and 339136 of the Venezuelan Criminal
Code.
Copyright
(a) Action to obtain a declaration:  Title VI, Article 109137, of the Law on Copyright,
which deals with action to obtain a judicial ruling confirming the existence of the
right claimed by plaintiff;
(b) Action to obtain a prohibition or conviction: Title VI, Article 109, of the Law on
Copyright, which provides that the ow ner of a right who has reason to fear
infringement thereof or the persistence or recurrence of an infringement that has
already occurred may request the court to prohibit infringement of his rights by the
other person;
                                                                                                                                                                    
1. Misleading or false advertising aimed at preventing or restricting free competition;
2. Promotion of products and services based on false declarations concerning the disadvantages
or risks of any other product or service of competitors;  and
3. Commercial bribery, infringement of industrial secrets and the imitation of products.
135 Article 257.  Country Members shall introduce criminal procedures and penalties for cases of
counterfeiting of marks.
136 Article 338.  Anyone who has counterfeited or altered names, marks or distinctive signs belonging
to intellectual works or to the products of any industry, and anyone who has made use of legally registerednames, marks or signs that have been so counterfeited or altered, even if the act was carried out by a thirdperson, shall be liable to a term of imprisonment of one to 12 months.
The same penalty shall apply to anyone who has counterfeited or altered industrial designs or has made
use of them, even if the act was carried out by a third person.
The judicial authority may provide that the conviction be published in a newspaper that it designates, at
the expense of the infringer.
Article 339.  Anyone who, for trading purposes, has imported into Venezuela and put on sale or
otherwise circulated intellectual works or products of any industry bearing counterfeited or altered names, marks
or distinctive signs likely to mislead the consumer as to their origin or quality, if ownership of the works, marks
or signs has been legally registered in Venezuela, shall be liable to a term of imprisonment of one to 12 months.
137 Article 109.  The owner of any of the exploitation rights provided for in this Law who has reason to
fear infringement of his rights or the continuation or recurrence of an infringement that has already occurred
may request the court to uphold his rights and prohibit infringement thereof by the other person, without
prejudice to any action for non-pecuniary and material  damage that he may bring against the infringer.
In order to make the prohibition effective, the court may give warning in its ruling of a fine payable if
an infringement should occur.  The court shall impose the sanction at the request of the injured party.  The fineshall not exceed the equivalent of 20 times the minimum urban wage set by the National Executive inaccordance with the Basic Labour Law, and it shall be co nvertible into detention in the proportion of Bs 500 to
one day of detention.
In the event of a second offence, the fine imposed may be doubled.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 94
(c) Action for removal or destruction: Title VI, Article 110138, of the Law on Copyright.
Article 57(c) in Chapter VIII of Decision 351 also provides for this possibility;
(d) Action for damages: Title VI, Article 109, Article 110 and Article 64139 of the Law on
Copyright.  Similarly Chapter VIII, Article 57(a) and (b) Decision 351 (Common
Regime for Copyright and Related Rights), authorizes the competent authorities to
order the infringer of any protected rights to pay adequate compensation for injury
caused to the plaintiff, in addition to the court costs.
26. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order
production of evidence necessary to substantiate a party's claims where that party has beenunable to obtain such evidence from the opposi ng party.  Please describe how the laws or
regulations of Venezuela provide this authorizat ion, citing the relevant provisions of law or
regulation.
Venezuela's legal system provides for the "production of documents" as a means of proof,
based on Section II, Article 436, of the Code of Civil Procedure.
140
This provision enables the party, during the proceedings, to request the court to require the
other party to produce or hand over the document in its possession.  Once the request has been
approved, together with the evidence showing that there is at least a serious presumption that the
                                                     
138 Article 110.  The owner of one of the exploitation rights provided for in this Law who has been
prejudiced in the exercise thereof may request the cour t to order the destruction or withdrawal of the copies
unlawfully reproduced and of the equipment used for the reproduction, insofar as the latter cannot, by their
nature, be used for the reproduction or communication of other material, without prejudice, where appropriate,
to the right to bring action for compensation for injury caused to the owner of any one of the exploitation rightsmentioned.
If part of the equipment concerned can be used for the reproduction or communication of other
material, the person concerned may demand that the part in question be separated at his expense to save it fromdestruction or removal.  If the copy or equipment whose removal or destruction is sought is of particular artistic
or scientific merit, it may not be destroyed, and the court may order ex officio that it be handed over to a public
museum.
In any event, the injured party may request that the copies or equipment whose destruction has been
ordered be awarded to him.  The court shall determine the value of the award, which shall be deducted from theestimated amount of compensation for injury caused.
The measures referred to in this Article shall be without effect on those who have, in good faith and for
their personal use, acquired an unlawfully reproduced copy.
139 Article 64.  Any person who exploits a work, product or production administered by a collective
management entity without having been assigned the corresponding rights or without having been granted the
appropriate licence for use, shall pay, by way of indemnification, a charge of 50 per cent of the remunerationspecified in the tariff, applicable to the entire peri od during which the exploitation took place, provided that
there is no evidence of more serious injury in the specific case.
140 Article 436.  A party needing to utilize a document which it alleges to be in the possession of the
other party, may request its production.
The request for production shall be accompanied by a copy of the document or, failing that, by a
statement of the facts known to the requesting party concerning the content of the document and evidenceshowing that there is at least a serious presumption that the document is or has been in the possession of the
other party.
The court shall require the other party to produce or hand over the document within a specified period
or face a penalty.
If the document is not produced within the specified  time-limit and no evidence is provided to show
that it is not in the possession of the other party, the text of the document as it appears in the copy presented bythe requesting party shall be presumed to be accurate, or in its absence, the information provided by the
requesting party concerning the content of the doc ument shall be deemed to be correct (…)".IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 95
document in question is in the possession of the other party, the court shall order the other party to
produce it within a specified time-limit, and if the document is not produced or handed over, the copy
or the facts alleged by the requesting party shall be deemed accurate.
This type of evidence can be used in both criminal and civil proceedings in Venezuela, where
the principle of freedom of evidence permits the use of any evidential means provided for in any
legislative text.
In addition to the foregoing, Article 240141 of Decision 486 of the Andean Community
provides that the burden of proof shall lie with the defendant in cases of infringement of a patent on a
process for obtaining a product.  For this purpose, there is a juris tantum  presumption against the
defendant, who must prove during the proceedings that the process used to obtain the product is not
the process protected by the patent.
27. Please describe in detail all of the civil remedies that are available to right holders under
the laws of Venezuela, citing the relevant provisions of law or regulation .
Decision 486 of the Commission of the Cartagena Agreement and the domestic legislation
specify action and procedures to counter the infringement of intellectual property rights.  These allow
effective measures to be adopted and prevent infringement.
Industrial property:
1. Action claiming ownership:  Title XIV, Article 237142 of Decision 486 – Common Industrial
Property Regime.
2. Action for infringement of rights: Title XV, Articles 238 to 244143 of Decision 486 –
Common Industrial Property Regime.
                                                     
141 Article 240.  In cases alleging infringement of a patent whose subject-matter is a process for
obtaining a product, the defendant in question shall be responsible for proving that the process used by him to
obtain the product is different from the process protected by the patent allegedly infringed.  To that end it shall
be presumed, in the absence of proof to the contrary, that any identical product produced without the consent of
the owner of the patent has been obtained by the patented process if:
(a) The product obtained using the patented process is new; or(b) there exists a reasonable possibility of the identical product having been manufactured using
the process, and the owner of the patent for the latter is unable to establish, after reasonableeffort, what process was actually used.
In the submission of proof to the contrary, due regard shall be had to the legitimate interests of the
defendant or accused with respect to the protection of his business secrets.
142 Article 237.  Where a patent or an industrial design registration has been applied for or obtained by
a person who does not have the right to it, or to the detriment of another person who also has the right to it, the
person affected may claim ownership of it before the competent national authority, and request that the pending
application or the rights granted be transferred to him, or that he be recognized as joint applicant for or jointowner of the said rights.
Where the registration of a mark has been applied for or obtained to the detriment of another person
who also had the right to it, the person affected may so claim before the competent national authority, requesting
that he be recognized as joint applicant for or joint owner of the said rights.
Where the domestic legislation of the country Member permits, indemnification for injury and
prejudice may also be claimed in the same action.
This action shall be barred after four years following the date of grant of the rights or two years after
the subject-matter of the protection began to be exploited or used in the country by the person who secured therights, whichever period expires earlier.  The action shall not be barred where the person who obtained the rights
applied for them in bad faith.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 96
                                                                                                                                                                    
143 Article 238.  The owner of rights protected under this Decision may bring an action before the
competent national authority against any person who infr inges his rights.  He may also proceed against any
person who engages in acts that indicate the imminence of an infringement.
Where the domestic legislation of the country Member permits, the competent national authority may
institute the infringement pro ceedings provided for in the said legislation ex officio.
In the case of joint ownership of rights, any of the joint owners may bring an action for infringement
without the consent of the others being necessary, except where otherwise agreed between the joint owners.
Article 239.  The owner of a patent shall have the right to bring legal action for injury and prejudice for
unauthorized use of the invention or utility model during the period between the date on which it acquires public
character and the relevant application may be consulted, and the date of grant of the patent. Compensation shallbe available only in respect of the subject-matter covered by the patent granted, and shall be calculatedaccording to the exploitation actually engaged in by the defendant during the period in question.
Article 240.  In cases of alleged infringement of a patent whose subject-matter is a process for
obtaining a product, the defendant in question shall be responsible for proving that the process used by him toobtain the product is different from the process protected by the patent allegedly infringed.  To that end it shall
be presumed, in the absence of proof to the contrary, that any identical product produced without the consent of
the owner of the patent has been obtained by the patented process if:
(a) The product obtained using the patented process is new; or(b) there exists a reasonable possibility of the identical product having been manufactured using
the process, and the owner of the patent for the latter is unable to establish, after reasonable
effort, what process was actually used.
In the submission of proof to the contrary, due regard shall be had to the legitimate interests of the
defendant or accused with respect to the protection of his business secrets.
Article 241.  The plaintiff or the party reporting the offence may apply to the competent national
authority to have one or more of the following measures ordered, among others:
(a) The cessation of the acts constituting the infringement;(b) indemnification for injury or prejudice;(c) withdrawal from commercial channels of the goods resulting from the infringement, including
containers, packaging, labels, printed matter or  advertising or other material, and also the
material and means that mainly served for the commission of the infringement;
(d) prohibition of the import or export of the goods, materials or means referred to in the
foregoing subparagraph;
(e) the award of ownership of the goods, materials or means referred to in subparagraph (c), in
which case the value of the property shall be set against the amount of the indemnification forinjury and prejudice;
(f) the adoption of the necessary measures to ensure that the infringement does not continue or
recur, including destruction of the goods, materials or means referred in subparagraph (c) or
the temporary or permanent closure of the establishment of the defendant or accused; or
(g) publication of the sentence handed down agains t the infringer and notification thereof, at the
latter's expense, to all interested parties.
In the case of goods that bear a false mark, the elimination or removal of the mark shall be supported
by action intended to prevent those goods being brought into commercial channels.  Those goods shall moreover
not be cleared for re-export in the same state or made subject to a different customs procedure.
Exceptions may be made in cases duly categorized by the competent national authority, or where the
express authority of the owner of the mark has been obtained.
Article 242. – Country  Members may provide that, unless the measure is disproportionate to the
seriousness of the infringement, the legal authorities may order the infringer to inform the owner of the rights of
the identity of third parties who have participated in the production and distribution of the infringing goods or
services, and of the distribution channels.
Article 243. – For the purposes of calculating indemnification for injury and prejudice, due regard shall
be had, among other things, to the following criteria:
(a) The actual harm and the loss of revenue suffered by the owner of the rights as the result of the
infringement;
(b) the amount of the profits earned by the infringer as a result of the infringing acts;IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 97
3. Precautionary measures: Title XV, Chapter II, Articles 245 to 249144 of Decision 486 –
Common Industrial Property Regime.
4. Border measures: Title XV, Chapter III, Articles 250 to 256145 of Decision 486 – Common
Industrial Property Regime.
                                                                                                                                                                    
(c) the price that the infringer would have paid for a contractual licence, due regard being had to
the market value of the rights infringed and to  contractual licences that have already been
granted.
Article 244.  Infringement actions shall be barred after two years following the date on which the
owner had knowledge of the infringement, or in any event after five years following the time at which the
infringement was last committed.
144 Article 245.  Any person who institutes or intend s to institute proceedings for infringement may
request the competent national authority to order immedi ate precautionary measures with the view to preventing
the infringement from being committed, avoiding its cons equences, securing or preserving evidence or ensuring
the effectiveness of the action or compensation for injury and prejudice.
The precautionary measures may be requested before the action is brought, in conjunction with it or
after it has been brought.
Article 246.  The following precautionary measures among others may be ordered:
(a) the immediate cessation of the acts constituting the alleged infringement;
(b) the withdrawal from commercial channels of the goods resulting from the alleged
infringement, including containers, packaging, labels, printed matter or advertising or othermaterial, and also the material and means that mainly served for the commission of theinfringement;
(c) the suspension of the import or export of the goods, materials or means referred to in the
foregoing subparagraphs;
(d) the provision of sufficient security by the alleged infringer; and(e) the temporary closure of the establishment of the defendant or accused, where necessary to
avoid the continuation or recurrence of the alleged infringement.
Where the national legislation of the country Member permits, the competent national authority mayorder the application of precautionary measures ex officio.
Article 247.
  A precautionary measure shall he ordered only where the person requesting it proves his
entitlement to act and the existence of the rights infringed, and submits evidence that allows it to be reasonably
assumed that the infringement has been committed or is imminent.  The competent national authority may askthe person requesting the measure to provide sufficient security or guarantees before ordering it.
The person who requests a precautionary measure in relation to particular goods shall supply the
necessary information and a sufficiently detailed and accu rate description for the allegedly infringing goods to
be identified.
Article 248.  Where a precautionary measure has been implemented without the intervention of the
other party, it shall be notified to the party affected immediately after it has been implemented.  The affectedparty may apply to the competent national authority to have the measure rescinded.
In the absence of national provisions to the cont rary, any precautionary measure implemented without
the intervention of the other party shall lapse as a right if the infringement action is not initiated within the
ten days following the implementation of the measure.
The competent national authority may amend, rescind or confirm the precautionary measure.
Article 249.  Precautionary measures shall apply to the products of the alleged infringement and to the
materials or means mainly used for committing it.
145 Border Measures
Article 250.  The owner of the registration of a mark who has good reason to believe that the import or
export of goods infringing that registration is going to  take place may request the competent national authority
to suspend customs clearance.  The conditions and guarantees provided for in the domestic legislation of thecountry Member shall be applicable to the requ est and to the order issued by the authority.
Any person who requests the implementation of border measures shall provide the competent national
authority with the necessary information and a description of the goods to which the alleged infringement relates
that is sufficiently detailed and accurate for them to be recognized.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 98
5. Acts of unfair competition:
(a) Title XVI, Chapter I, Articles 258 and 259146 of Decision 486 – Common Industrial
Property Regime;
(b) Title II, Article 17147 and Titles IV, V, VI and VII, Articles 32 to 56 of the Law on the
Promotion and Protection of Free Competition.
                                                                                                                                                                    
If the domestic legislation of the country Member permits, the competent national authority may order
the application of border measures ex officio.
Article 251.  The competent national authority may allow the owner of the mark to substantiate his
allegations by taking part in the inspection of the merchandise detained.  The importer or exporter of the saidmerchandise shall have the same right.
When the inspection is conducted, the competent national authority shall make the necessary
arrangements fur such confidential information as may be relevant to be protected.
Article 252.  When the applicable conditions and guar antees have been fulfilled, the competent national
authority shall order or refuse the suspension of customs clearance and shall inform the requesting patty
accordingly.
When suspension is ordered, the notification shall give the name and address of the sender, importer,
exporter and consignee;  of the merchandise, and also the quantity of that merchandise affected by the
suspension.  The suspension shall likewise be notified to the importer or exporter of the goods.
Article 253.  On the expiry of ten working days following the date of notification of the suspension of
customs clearance without the requesting party having initiated the infringement action, or without thecompetent national office having prolonged the suspen sion, the measure shall be lifted and the customs
clearance of the merchandise detained shall proceed.
Article 254.  When the action for infringement has been initiated, the party against whom the measure
has been ordered may appeal to the competent national authority.  The competent national authority may amend,
revoke or confirm the suspension.
Article 255.  Once a finding of infringement has been made, the goods bearing counterfeit marks that
have been impounded by the competent national authority may not be either re-exported or subjected to adifferent customs procedure except in cases duly specifi ed by the competent national authority or where the
express authority of the owner of the mark has been obtained.
Without prejudice to such other actions as may be available to the owner of the rights, and subject to
the defendant's right to appeal to a judicial authority,  the competent national authority may order the destruction
or confiscation of the infringing merchandise.
Article 256.  Small quantities of merchandise that have no commercial character and form part of the
personal baggage of travellers or are sent in small quantities shall be excluded from the application of the
provisions of this Chapter.
146 Article 258.  Any act involving industrial property that is performed in a business environment and
is contrary to proper usage and pr actice shall be considered unfair.
Article 259.  The following in particular shall be considered acts of unfair competition in connection
with industrial property:
(a) any act capable of creating confusion, by whatever means, as to the establishment, goods or
industrial or commercial activity of a competitor;
(b) false assertions in the course of trade capable of discrediting the establishment, goods or
industrial or commercial activity of a competitor;
(c) statements or assertions the making of which in  the course of trade could mislead the public as
to the nature, method of manufacture, characteristics, suitability for use or quantity of the
goods.
147 Article 17.  Trade policies aimed at the elimination of competitors through acts of unfair
competition shall be prohibited, in particular the following acts:
1. Misleading or false advertising aimed at preventing or restricting free competition;2. Promotion of products and services based on false declarations concerning the disadvantages
or risks of any other product or service of competitors;  and
3. Commercial bribery, infringement of industrial secrets and imitation of products.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 99
In addition, the following rights of action may be exercised in the field of copyright:
(a) Action to obtain a declaration:  Title VI, Article 109, of the Law on Copyright, which
deals with action to obtain a judicial ruling confirming the existence of the right
claimed by the plaintiff;
(b) Action to obtain a prohibition or conviction:  Title VI, Article 109, of the Law on
Copyright, which provides that the ow ner of a right who has reason to fear
infringement thereof or the persistence or recurrence of an infringement that has
already occurred may request the court to prohibit infringement of his right by theother person;
(c) Action for removal or destruction: Title VI, Article 110, of the Law on Copyright.
Chapter VIII, Article 57(c) of Decision 351 also provides for this possibility;
(d) Action for damages: Title VI, Article 109, Article 110 and Article 64 of the Law on
Copyright.  Chapter VIII, Article 57(a) and (b) Decision 351 (Common Provisions on
Copyright and Neighbouring Rights), authorizes the competent authorities to order
the infringer of any protected rights to pay adequate compensation for injury caused
to the plaintiff, in addition to the court costs.
28. Please describe in detail the provisional procedures and remedies available to right
holders under the laws of Venezuela, citing the relevant provisions of law and regulation, and
indicate any condition under which a right holder may avail itself of those procedures and
remedies.
JUDICIAL MEASURES
Copyright
(a) Article 111148 of the Law on Copyright provides that the courts may order the sequestration of
anything that constitutes infringement of the right of exploitation and the seizure of the revenue accruing
to the right holder provided that evidence constitu ting a serious presumption of the right claimed is
furnished.
(b)  Subparagraphs (a), (b) and (c) of Article 56 of Decision 351 – Common Regime for Copyright
and Related Rights – provide that the competent national authority may, as a precautionary measure,order the immediate cessation of the unlawful activiti es;  the attachment, sequestration, confiscation or
preventive seizure, as appropriate, of the copies pr oduced in violation of rights, and the attachment,
seizure, confiscation or sequestration of the appara tus or materials used for the commission of the
unlawful act.
                                                     
148 Article 111.  For the purposes of the exercise of the actions provided for in the foregoing Articles,
the court may order judicial inspections and expert studies, and also any other form of proof provided for in the
Code of Civil Procedure.
The court may order the sequestration of anything that constitutes a violation of the exploitation right.The court may likewise order the seizure of the revenue accruing to the owner of the disputed right of
exploitation.
Sequestration and seizure shall be ordered only if the request is accompanied by evidence constituting a
serious presumption of the alleged infringement, or if such presumption emerges from the production of any of
the evidence mentioned in the introductory paragraph of this Article.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 100
Industrial property
(a) Title XI, Chapter II, Article 246 of Deci sion 486 – Common Industrial Property Regime –
provides that the following preventive measures ma y be ordered:  the immediate cessation of the acts
constituting the alleged infringement;  withdrawal from commercial channels of the goods resulting
from the alleged infringement;  suspension of the impor tation or exportation of the goods;  provision of
sufficient security by the alleged infringer; and tem porary closure of the establishment belonging to the
defendant or the accused, where necessary, to prevent the continuation or repetition of the alleged
infringement.
(b) The suspension of the effects of the administra tive act of registering a patent or mark whose
annulment has been sought may be requested where the law so permits or such suspension is necessary
to prevent irreparable injury or injury which it w ould be difficult to repair definitively, for which
purpose the court may require an appropriate guaran tee (Article 136 of the Basic Law on the Supreme
Court of Justice).
(c) As a provisional measure, the suspension of the e ffects of the administrative act of registering a
patent or mark may be requested before the compet ent court, under the constitutional guarantee for the
protection of rights, on the grounds of  unconstitutionality and provided that the requirements applicable
to preventive measures are met, namely, those of colour  of title and risk in delay (Article 5 of the Basic
Law on the Protection of Constitutional Rights and Guarantees).
(d) In the matter of both copyright and industrial property, any type of preventive measure or
"innominate measure" may be requested provided that the requirements laid down in the law are met
(first paragraph149 of Article 588 of the Code of Civil Procedure).
29. Please explain whether civil remedies afforded under the laws of Venezuela are being
applied in practice at levels "adequate to compensate for the injury the right holder has
suffered", as required under Article 45.1 of the TRIPS Agreement.
In Venezuela, the owners of intellectual property rights are increasingly aware of their rights
and of the opportunities for asserting them afforded by the Venezuelan system.  Indemnification forinjury and prejudice is one of the most common forms of action pursued and such indemnification is
assessed according to the profits lost or the economic prejudice suffered by the right holder.  We
believe that the exercise and effective application of such actions has acted as a deterrent and has led
to a gradual reduction in offences in this area.
J. 
ENFORCEMENT – SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
30. Please describe in detail the procedures under the laws of Venezuela that provide for
border enforcement at least for trademark counte rfeiting and copyright piracy, identifying the
competent authority and citing the relevant provisions of law or regulation.
                                                     
149 Article 588, First paragraph: - In addition to the preventive measures set out above and strictly
subject to the requirements laid down in Article 585, the court may order any precautionary measures it deems
appropriate when there is a justified fear that one of the parties may cause serious injury or injury which itwould be difficult to repair to the rights of the other party.  In such cases, in order to prevent the injury, the courtmay authorize or prohibit the implementation of certain acts and adopt measures to ensure cessation of the
injury.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 101
The relevant rules and procedures have to be complemented by domestic legislation.  Such
legislation is currently under consideration in the National Assembly of the Bolivarian Republic of
Venezuela in connection with the reform of the Basic Customs Law, to which it is proposed to add a
Title on this subject that will be consistent with the TRIPS Agreement.
Decision 486, under Title XV, Chapter III (Border Measures), Articles 250 to 255150, lay
down procedural regulations in this respect.  The owner of the registration of a mark who has
reasonable grounds for suspecting that products infringing the trademark are to be imported or
exported may request the competent national authority to suspend customs clearance.  To that end, he
must supply the authority with the necessary information and a sufficiently detailed and precise
description of the allegedly infringing goods to allo w them to be identified (Article 250 of Decision
486).
In order to substantiate his claims, the owner of the mark may be allowed to participate in the
inspection of the goods detained.  The importer or exporter of the goods shall enjoy the same right.
When carrying out the inspection, the competen t national authority shall take the necessary
steps to protect the confidentiality of information, where applicable (Article 251 of Decision 486).
                                                     
150 Article 250.  The owner of the registration of a mark who has good reason to believe that the import
or export of goods infringing that registration is going to take place may request the competent national
authority to suspend customs clearance.  The conditions and guarantees provided for in the domestic legislationof the member country shall be applicable to the request and to the order issued by the authority.
Any person who requests the implementation of border measures shall provide the competent national
authority with the necessary information and a description of the goods to which the alleged infringement relatesthat is sufficiently detailed and accurate for them to be recognized.
If the domestic legislation of the ember country Member permits, the competent national authority may
order the application of border measures ex officio.
Article 251. The competent national authority may allow the owner of the mark to substantiate his
allegations by taking part in the inspection of the merchandise detained.  The importer or exporter of the saidmerchandise shall have the same right
When the inspection is conducted, the competent national authority shall make the necessary
arrangements fur such confidential information as may be relevant to be protected.
Article 252.  When the applicable conditions and guar antees have been fulfilled, the competent national
authority shall order or refuse the suspension of customs clearance and shall inform the requesting patty
accordingly.
When suspension is ordered, the notification shall give the name and address of the sender, importer,
exporter and consignee;  of the merchandise, and also the quantity of that merchandise affected by thesuspension.  The suspension shall likewise be notified to the importer or exporter of the goods.
Article 253.  On the expiry of ten working days following the date of notification of the suspension of
customs clearance without the requesting party having initiated the infringement action, or without the
competent national office having prolonged the suspen sion, the measure shall be lifted and the customs
clearance of the merchandise detained shall proceed.
Article 254.  When the action for infringement has been initiated the party against whom the measure
has been ordered may appeal to the competent national authority.  The competent national authority may amend,revoke or confirm the suspension.
Article 255. – Once a finding of infringement has been made, the goods bearing counterfeit marks that
have been impounded by the competent national authority may not be either re-exported or subjected to a
different customs procedure except in cases duly specifi ed by the competent national authority or where the
express authority of the owner of the mark has been obtained.
Without prejudice to such other actions as may be available to the owner of the rights, and subject to
the defendant's right to appeal to a judicial authority,  the competent national authority may order the destruction
or confiscation of the infringing merchandise.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 102
When the applicable conditions and guarantees have been fulfilled, the competent national
authority shall order or refuse the suspension of customs clearance and shall notify the applicant
accordingly.
If suspension is ordered, the notification shall include the name and address of the consignor,
importer, exporter and consignee of the goods, as well as the quantity of goods subject to the
suspension.  The suspension shall also be notified  to the importer or exporter of the goods (Article
252 of Decision 486).
If the plaintiff has not initiated an action for infringement within ten working days of the date
of notification of the suspension of customs clearance or the competent national authority has notextended the suspension, the measure shall be li fted and the detained goods shall be released
(Article 253 of Decision 486).
Once a finding of infringement has been made, the goods bearing counterfeit marks that have
been seized may not be re-exported or subjected to a different customs procedure, except in dulyspecified cases or where the express authorization of the owner of the mark has been obtained
(Article 255 of Decision 486).
Once infringement proceedings have been initiated, the defendant may appeal against the
measure and the competent court shall act to modify, revoke or confirm the suspension (Article 254 ofDecision 486).
Without prejudice to any other rights of action available to the right holder and subject to the
defendant's right to appeal to the judicial author ities, the competent national authority may order the
destruction or seizure of the infringing goods.
In addition to the aforementioned goods, at the request of the competent intellectual property
body, the customs authorities must prevent the customs clearance of goods which allegedly infringe
intellectual property rights granted in Venezuela or derived from international agreements to which
Venezuela is a party.
The competent intellectual property body may request the customs authority, by means of a
reasoned decision, to prevent the customs clearance of goods at any time, upon submission of
sufficient security to protect the owner of the righ t if any infringement occurs, the amount being fixed
by the competent authority.
The customs authorities shall notify the owne r, importer or consignee that the goods in
question have been detained (Article 87 of the Basic Customs Law).
31. Please indicate if border enforcement is available to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each
form of intellectual property, citing the relevant provisions of law.
Pursuant to the Basic Customs Law in force, the procedure laid down in Article 87 applies to
any intellectual property right.  In fact, as mentioned in relation to the previous question, the
competent authority may prevent the customs clearance of goods which allegedly infringe intellectual
property rights granted in Venezuela or derived from international agreements to which Venezuela isa party.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 103
32. Article 58 of the TRIPS Agreement specifies procedures to be followed where the
competent authorities can act ex officio.  Plea se explain whether the competent authorities in
Venezuela are empowered to act ex officio and, if so, please identify the intellectual property
areas subject to ex officio action.
In principle, no measures are taken ex officio  by Venezuela's civil courts, but must be requested
in the context of judicial proceedings.  They may be  enforced ex officio if they are requested by the
Public Prosecutor's Office in the course of criminal  proceedings, in which case the goods must be held
in storage until a determination is made as to wh ether or not a punishable offence has been committed.
In cases involving smuggling, the goods may be destroyed.  Such measures may be carried out by the
civil defence authorities, i.e.  the National Guard, in  the course of anti-smuggling operations, for alleged
narcotics offences or as a result of complaints made on the basis of the Criminal Code or the
commission of an offence.
It should be noted that Article 87 of the Basic Customs Law makes the customs authorities
responsible for implementing border measures, but as such measures must be requested in judicialproceedings resulting from an investigation based on a complaint or petition, it is in fact the judicial
authorities that are competent to order them.
K. 
ENFORCEMENT – CRIMINAL PROCEDURES
33. Please describe in detail how the laws of Venezuela implement Article 61 of the TRIPS
Agreement that requires Members to have criminal procedures and penalties, including
imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful
trademark counterfeiting and copyright infringement on a commercial scale.  Please cite the
relevant provisions of law and regulation and iden tify any pending legislation or regulation that
may affect issues related to criminal penalties and other procedures related to the investigationand prosecution of trademark and copyright infringement cases.
The Criminal Code establishes penalties for both industrial property and copyright
infringements.  Article 338 of the Criminal Code, for example, provides for a prison sentence of one
(1) to twelve (12) months for anyone who has coun terfeited or altered names, marks or distinctive
signs belonging to intellectual works or to the pr oducts of any industry, and for anyone who has made
use of legally registered names, marks or signs that have been so counterfeited or altered, even if theact was carried out by a third person.  The same penalty applies to any person who has counterfeited
or altered industrial designs or has made use of them, even if the act was carried out by a third person.
Article 339 of the Criminal Code imposes a prison sentence of one (1) to twelve (12) months
on anyone who, for trading purposes, has imported into Venezuela and placed on sale or otherwisecirculated intellectual works or products of any industry bearing counterfeit or altered names, marks
or distinctive signs likely to mislead the purchaser as to their origin or quality, if the ownership of the
works, names, marks or signs has been legally registered in Venezuela.
Article 340 of the Code imposes a prison sentence of fifteen (15) days to three (3) months on
anyone who has disclosed information concerning an invention, scientific discovery or industrial
application that should have been kept secret and who has become aware of it because of their
position or employment or by virtue of their professi on, art or industry, as well as a prison sentence of
fifteen (15) days to six (6) months if the disclosure was made to a foreigner not resident in Venezuela
or the latter's agent.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 104
Industrial property
Likewise, Articles 98 and 99 of the Industrial Property Law provide for a prison sentence of
one (1) to twelve (12) months for anyone who infrin ges the rights of the legitimate owner or holder of
a patent, by manufacturing, making, transmitting or using for industrial purposes and for profit
unlawful or fraudulent copies of the subject matter of the patent, without the express or tacit consent
of the owner, as well as anyone who, in order to prejudice the rights or interests of the legitimate
owner, uses, manufactures or makes registered marks, designs or other items likely to be confused
with them.
Articles 100 and 101 of the Industrial Property Law provide that anyone who designates an
establishment as a branch of another establishment which has a registered trade name and who
fraudulently takes advantage of an industrial or commercial reputation earned by the efforts of another
person whose property is protected under the Industrial Property Law shall incur a prison sentence of
one (1) to twelve (12) months.
Copyright
The Law on Copyright provides for criminal penalties in Title VII, Articles 119 to 122,
without prejudice to the possibility of a harsher penalty for the offence under the Criminal Code.
Article 119 of the Law on Copyright defines as an offence, punishable by a prison sentence of
six (6) to eighteen (18) months, the use of the title of a work, the communication in original or
processed form, in full or in part, of intellectual works, editions of the works of others, or texts or
photographs or products obtained by a process similar to photography or images recorded on
cinematographic film, being equivalent to photography, and the distribution of intellectual worksincluding copies of phonograms, and unauthorized broadcasting or retransmission by broadcasting
organizations, without the consent of the owner of the rights concerned.
Article 120 of the Law on Copyright provides for a prison sentence of one (1) to four (4)
years for anyone who deliberately reproduces, in original or processed form, in full or in part,
intellectual works, editions of the works of others, texts, photographs or products obtained by a
process similar to photography or who imports into Venezuela, stores, distributes, sells, or circulatesunlawful reproductions thereof.
Article 121 states that the same penalty applies to anyone who copies, by any means, the
work of a performer, a phonogram or a broadcast, in full or in part, or who imports into Venezuela,
stores, distributes, sells or circulates such reproductions or copies (Article 121 of the Law onCopyright).
34. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use of
which has been the commission of the offence.  Please describe the provisions in the laws of
Venezuela that provide for such remedies, and describe the circumstances in which those
remedies would be imposed, citing the re levant provisions of law or regulation.
(a) Imprisonment
Details of offences under Venezuelan legislation are provided in the reply to question 33.
The Industrial Property Law, the Criminal Code, and the Law on Copyright provide for terms of
imprisonment which, depending on the provisions concerned, may range from one month to four
years as punishment for infringements of intellectual property rights.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 105
In addition to those provisions, the draft revi sion of the Industrial Property Law contains a
chapter on industrial property offences, which provides for harsher penalties than those currently
imposed under the Criminal Code.
(b) Monetary fines
In addition to the prison sentence provided for in the Criminal Code and the Industrial
Property Law, a fine of Bs 50 to 1,000 is applicable to anyone who:
(1) Without obtaining a patent or enjoying the privileges associated therewith, takes
advantage of it as if by right;
(2) uses a mark, industrial design or model without being in possession of the
corresponding certificate of registration and states that the mark or design has been
registered;
(3) holds a mark for a particular category of goods and uses it as a registered mark on
goods belonging to another category;  and
(4) fraudulently asserts that a registration is still valid even though, according to a public
declaration by the competent authority, it no longer has effect.  If further offences are
committed, the penalty indicated in this Article shall be converted into a
proportionate term of imprisonment (Article 102 of the Industrial Property Law).
As regards copyright, independently of the criminal sanction applicable a monetary fine, may
accompany the judicial decision upholding the claim for cessation of the infringing activity.  The
revised Law on Copyright of 1993 provides for the imposition of a fine, not in relation to a future
infringement, as was the case with the 1962 Law but where an infringement against the plaintiff's
right has been proven in the course of prohibition proceedings.
Consequently if infringement is proved in the course of the proceedings, at the request of the
injured party the court shall order the defendant to pay a fine not exceeding the equivalent of twenty(20) units of the minimum wage, which can be converted into a term of imprisonment at the rate of Bs
500 per day of imprisonment.  If a further offence is committed, the penalty may be doubled.  In
addition, the amendment to Article 95 of the repealed Law on Copyright, which has now become
Article 109, authorizes the court to impose a fine on the infringer once infringement has been proved
without having to wait until a further infringement has occurred, as was the case under the previousenactment.
A fine is of course independent of any conviction relating to compensation for injury.Pursuant to the foregoing, the draft revision of the Industrial Property Law provides for fines
and authorizes the administrative authority to impose them.
(c) Seizure, forfeiture and destruction of infringing goods and of materials and implements for
their production
In industrial property cases, Article 105 of the relevant Law provides that:IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 106
"Any sentence for an industrial property offence shall order the destruction of the elements
used or prepared for the commission of the offe nce, as well as the objects resulting from the
offence."
The Law on Copyright (Article 97) provides for action or claims to obtain the destruction or
withdrawal of unlawfully reproduced copies and of  the equipment used for the unlawful reproduction.
The judicial ruling must allow or disallow the withdrawal or destruction, but the equipment
used for the reproduction may not be destroyed if it can be used for the reproduction or
communication of other material (Article 110).
In exceptional cases, the unauthorized copy of a work, performance or production, or the
equipment used for the offence, may have special artist ic or scientific merit and if this is the case the
court will not order its destruction and is authorized to order ex officio that it be handed over to a
public museum.  Action for removal and destruction always leaves open the possibility of action for
damages.
(d) Other measures
Article 113 of the Venezuelan Law on Copyright provides that, at the request of the interested
party, the court may order that the operative part of  the ruling given in any of the actions provided for
by the Law be published at the expense of the losing party in one or more newspapers specified by the
court.
Although this authority can be used at the court's discretion, it has become common practice,
in civil cases in Venezuela, for the court to order publication of the operative part of the ruling,provided of course that such publication has been requested by the complaining party.
In criminal cases, Article 338 of the Criminal Code authorizes the court to decide that the
sentence should be published in a specified newspaper, at the expense of the defendant.  Unlike in
civil proceedings, this authority is rarely used.
In copyright matters, the court may order the publication in the press of the adverse or
favourable judgement at the expense of the defendant or of the plaintiff, as appropriate (Article 124 of
the Law on Copyright).
Other remedial measures that may also be requested pursuant to Article 111 of the Law on
Copyright include seizure of the revenue accruing to  the owner of the disputed right of exploitation
and the sequestration of anything that constitutes infringement of the right of exploitation.  These
measures may only be ordered under the article in question if there is evidence indicating a serious
presumption of the right claimed or if such pres umption emerges from the production of any of the
evidence.  In addition to the specific rules on copyright, the provisions of the Code of Civil Procedure
are also applicable on a supplementary basis, so that the measures referred to do not prevent theimposition of other measures such as a ban on disposing of or encumbering immovable property or
appropriate measures (innominate measures) taken on the basis of the first paragraph of Article 588 of
the Code, again in relation to industrial property rights, where there is a justified fear that one of the
parties might cause serious injury or injury that it would be difficult to repair to the rights of another
party.IP/Q/VEN/1, IP/Q2/VEN/1,
IP/Q3/VEN/1, IP/Q4/VEN/1
Page 107
35. Article 61 also indicates that Members may provide for criminal procedures and
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describe
any provisions of the laws of Venezuela that provide for such procedures and remedies, citing
the relevant provisions of law or regulation.
The criminal procedures and penalties are fully explained in the reply to question 33.  In
criminal cases, the principle " nullum crimen, nulla poena sine lege " applies – no offence no penalty
unless governed by law.
L. STATISTICAL QUESTIONS
36. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout-design, and trade secret
enforcement for 2000, including the number of ca ses filed;  injunctions issued;  infringing
products seized;  infringing equipment seized;  cases resolved (including settlement);  and the
amount of damages awarded.
There are no specific statistics on enforcement measures because they are implemented by a
large number of bodies representing different areas of jurisdiction (administrative and judicial).
Nevertheless, as regards prevention and deterrence in copyright matters, since February of this year
there have been 102 administrative notifications by the competent national administrative authority.
No coercive judgements for copyright infringement have as yet been given because the cases
concerned have been resolved by friendly settlement between the parties.
37. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringeme nt for 2000, including the number of raids,
prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid and whether the jail term was actually served or was suspended), and any other
information establishing that the criminal syst em operates effectively to deter copyright piracy
and trademark counterfeiting.
As far as criminal cases are concerned, sixty-eight (68) complaints have been made to the
judicial authorities regarding possible infringement  of copyright, but no charges have been brought.
Agreements on reparation have been reached in three (3) cases involving video equipment and in one
(1) case concerning software.  Two (2) civil sentences have been pronounced, one (1) in respect of
video equipment and one (1) in respect of computer equipment.
__________