WORLD TRADE
ORGANIZATIONIP/N/6/VEN/1
9 April 2001
(01-1802)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
CHECKLIST OF ISSUES ON ENFORCEMENT1
I. REPLIES BY VENEZUELA
Civil and administrative procedures and remedies
(a) Civil judicial procedures and remedies
1. Specify the courts which have juri sdiction over IPR infringement cases .
Copyright
Pursuant to Article 1392 of the Law on Copyright, first instance civil courts have jurisdiction in
legal matters relating to copyright and other rights protected by the Law.  The competence given to first
instance courts does not depend on the amount involved.
This Law also gives jurisdiction to municipal courts;  the provisions in Article 1123 of the Law,
for example, state that, when the urgency of the ma tter so dictates, municipal courts are empowered to
order judicial inspections or expert  studies, as well as the sequestration of anything that constitutes
infringement of the right of exploitation, a nd may also order the seizure of revenue.
Industrial property
In industrial property matters, ordinary civil courts have jurisdiction.  Depending on the
amount involved, a municipal court or a first instance civil court will be competent.
                                                     
1 Document IP/C/5.
2 Article 139 of the Law on Copyright:  “Legal matters relating to copyright and other rights protected
by this Law shall be within the jurisdiction of the first instance civil courts and the first instance criminal courts,as the case may be, except in cases where this Law places them under the jurisdiction of parish or municipalcourts”.
3 Article 112 of the Law on Copyright:  “In the event of a dispute between the parties, the proof and
measures provided for in the foregoing Article shall be ordered by the court hearing the case.  However, shouldthe urgency of the matter so dictate, they may be ordere d by the parish or municipal court of the place in which
they are to be carried out, regardless of the amounts in volved.  In such a case the party proceeded against may
protest against the said amount to the court hearing the case, without the production of the proof or the
application of the measure being thereby prevented.
If there is no dispute between the parties, the proof and the measures shall be decreed by the parish or
municipal court of the place in which they are to be implemented if the urgency thereof dictates, without theowner, possessor, person in charge, administrator or occupant of the place in which they are to be implementedbeing able to oppose such production or implementation.  The same court shall lift the measures at the request ofthe party proceeded against on the expiration of 30 consecu tive days after they were ordered if he has not been
served notice of the initiation of the main proceedings.”IP/N/6/VEN/1
Page 2
2. Which persons have standing to assert IP’s ?  How may they be represented?  Are there
requirements for mandatory personal appearan ces before the court by the right holder?
The owners or their heirs have standing to assert intellectual property rights, in criminal, civil
or administrative proceedings.
Venezuela’s legislation has provision for repres entation before the Republic’s courts whereby a
person (the principal) authorizes another person (t he agent) to carry out legal acts on his behalf.
Such powers of attorney may be officially r ecorded or granted to an attorney during the
proceedings ( apud acta ) by the owner of the right claimed.  There is also an assistance regime whereby
the owner himself acts before the court, assisted by  an attorney.  An owner cannot act directly on his
own behalf to make a claim before the courts wit hout going through an attorney;  he must always be
represented or assisted by an attorney.
There are no provisions in Venezuelan legisla tion on mandatory appearance by the owner of the
right before the court.
3. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produce evidence which lies within its control?
In Venezuela’s legal system there is a means of proof called “presentation of documents”,
which is based on Article 4364 of the Code of Civil Procedure and allows a party to proceedings to
request the court to require the other party to present or hand over a document that lies within its
control.  After the request has been approved and evidence has been provided to show that there is at
least a serious presumption that the document in question lies within the control of the other party, the
court shall require him to present the document within a certain period and, if he fails to produce orhand over the document, the copy furnished by the requesting party or the data he has provided shall
be deemed to be accurate.
This means of proof can be used in both criminal and civil proceedings in Venezuela, where
the principle of freedom of evidence exists, allowing  the use of any evidential means provided in any
legislative text.
4. What means exist to identify and protect confidential information brought forward as
evidence?
In criminal proceedings, all investigative acts are restricted as far as third parties are concerned
so only parties directly involved in the case, toge ther 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
                                                     
4 Article 436 of the Code of Civil Procedure:  “A party seeking to utilize a document that, according to
its declaration, lies within the control of the other party, may request its presentation.
The request for presentation 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 within the control of the
other party.
The court shall require the other party to present or hand over the document within the period it
indicates or be subject to a penalty.
If the document is not presented within the time-limit fixed and no evidence is provided to show that it
does not lie within the control 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 data provided by the requesting party
concerning the content of the document sh all be deemed to be correct (…)”.IP/N/6/VEN/1
Page 3
the action taken, thus have a duty of confidential ity (Article 313 of the Basic Code of Criminal
Procedure).
The principle of publicity governs civil proceedings  so all the records of proceedings are public.
The sole exception to this principle is where th e court determines otherwise for reasons of public
morality, depending on the nature of the proceedings (Article 24 of the Code of Civil Procedure).
5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use:
- Injunctions;
- damages, including recovery of profits, and expenses, including attorney's fees;
- destruction or other disposal of infr inging goods and materials/implements for
their production;
- any other remedies.
Injunctions
- Copyright
Part VI, Article 109, of the Venezuelan La w on Copyright provides that the owner of
any exploitation rights in any work prot ected by copyright who has reason to fear
infringement of his rights or the continua tion or recurrence of an infringement may
request a judge to declare his rights and prohibit the other person from infringing them.In order to give effect to the prohibition, the judge shall impose a fine if an
infringement should occur.
Part VI, Article 110, of the Venezuelan La w on Copyright allows the owner of any
exploitation rights in any work, product or production protected by copyright to request
a judge to order the destruction or withdr awal of the originals or copies unlawfully
reproduced and of the equipment used for the reproduction.
For the purposes of the exercise of the acti ons mentioned in the preceding paragraphs,
Article 111 of the Law on Copyright states th at a judge may order judicial inspections
and expert studies, as well as any other m eans of proof provided in the Code of Civil
Procedure.
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 judge, as provided in Article 113 of the Law on Copyright.
The competent national authority (the cour t) may order the permanent removal from
distribution channels of the copies constituting the infringement of rights
(subparagraph (c) of Article 57 of Decisi on 351 of the Commission of the Cartagena
Agreement “Common Copyright Prov isions and Neighbouring Rights”).
In criminal proceedings, the competent courts  may order a term of imprisonment of six
(06) months to four (04) years for any pe rson who commits any of the offences defined
in the Law on Copyright (Part VII of the Law).IP/N/6/VEN/1
Page 4
- Industrial property
The competent court may cancel a patent if it was issued when a third party had a better
right to it (subparagraph (a) of Article 17 and Article 66 of the Industrial Property
Law).
The competent court may cancel the registration of a trademark if it was registered
when a third party had a better right to it or where, after doubts have been raised
concerning the trademark’s validity, a ruling 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 co mpetent national authority (the court) may
order the transfer of a pending application or a right granted in a patent or in the
registration of an industrial design or it may order recognition as co-applicant or
co-owner of a right where a patent or the registration of an industrial design has been
requested or obtained by a person who has no right to it.  Likewise, where an
application for a trademark registration has b een filed or a trademark has been obtained
to the detriment of another party possessing the same right, the parties affected may
claim such rights before the competen t national authority by requesting their
recognition as co-applicants or co-owners of the rights in question (Article 237 of
Decision 486 of the Commission of the A ndean Community  “Common Industrial
Property Regime”.
In criminal matters, the competent courts may order a term of imprisonment of one (01)
to twelve (12 months) for any person who commits any of the offences specified in
Section II, Chapter XII, of the Industrial Property Law.
Damages, including recovery of profits, and expenses, including attorney's fees
Venezuela’s ordinary law lays down the princi ple that “Any person who intentionally, or by
negligence or imprudence, causes damage to another person shall be obliged to compensate for it”
(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 contains several provisions on the costs of proceedings and
attorney’s 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 order
the losing party to pay the court costs (Articles 274 to 287 of the Code of Civil Procedure).
There are nevertheless some special provisions:- Copyright
The competent national authority may order payment of adequate compensation to
the owner of infringed rights for the damages sustained as a result of the infringement
and order the offender to bear the cost of the  proceedings that he has caused the
owner of the infringed right to institute (subparagraphs (a) and (b) of Article 57 of
Decision 351 of the Commission of the Cartagena Agreement “Common Provisions
on Copyright and Neighbouring Rights”).IP/N/6/VEN/1
Page 5
- Industrial property
The competent national authority may order compensation for damages
(subparagraph b) of Article 241 of Decisi on 486 of the Commission of the Cartagena
Agreement “Common Industrial Property Regime”).  For the purpose of calculatingthe compensation for damages, the following criteria laid down in Article 243 of the
“Common Industrial Property Regime” must be used:  the consequential damage and
lost profits suffered by the right holder as a result of the infringement;  the amount of
profit obtained by the infringer as a result of the acts of infringement;  or, based on
the commercial value of the infringed right and such contractual licences as may have
already been granted, the price the infringer would have paid for a contractual
licence.
Destruction or other disposal of infringing goods and materials/implements for their production
- Copyright
The measure referred to here is covered by Article 110 of the Law on Copyright and
Article 56 of Decision 351 of the Commissi on of the Cartagena Agreement “Common
Provisions on Copyright and Neighbouring Rights”.
- Industrial property
The measure referred to here is covered by Article 241 of Decision 486 of the
Commission of the Cartagena Agreemen t “Common Industrial Property Regime”.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the production
and distribution of the goods or services found to be infringing and of their channels of
distribution?
There is no provision empowering the judicial au thorities to order the infringer to inform the
right holder of the circumstances referred to in the question.  Nevertheless, Venezuela’s legal regime
states that, where a person who has knowledge of the facts fails to inform the judicial authorities of anoffence committed by a third person, he may be found guilty of abetting the offence (Article 255 of
the Criminal Code) or be accused of complicity in the commission of a punishable offence.
In Venezuela’s opinion, the only circumstance in which an infringer could be indirectly
ordered to inform the authorities of the acts referred to in the question would be in cases of swornreplies to interrogatories (Article 403 of the Code of Civil Procedure, reply to interrogatories), which
would in any event depend on the questions and how they were formulated.
Another way in which the infringer could be made to inform the authorities of the
circumstances referred to in the question, although it does not involve an order imposed by a judicialauthority, is where criminal proceedings have been suspended because the offences are the result of
organized crime and the accused, in this case the infringer of any intellectual property right, fully
collaborates in the investigation, furnishing essent ial information so that the offence does not continue
or other offences are not committed (Article 33 of the Basic Code of Criminal Procedure).
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?IP/N/6/VEN/1
Page 6
The same actions and/or measures available to the holder of an intellectual property right as
those described under the preceding questions can also apply.
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
There is no specific provision on the duration of ordinary civil proceedings involving claims
for damages in intellectual property cases.  Taking into account the provisions on the procedural
time-limits at each stage of the proceedings, however (answer, period for the gathering, submission
and consideration of evidence, reports and the ruling), it can be stated that ordinary proceedings
without any extra procedures (prior issues, appe als, etc.) could last for around nine months.
There are no specific provisions on the duration of criminal proceedings either.  However,
taking into account the provisions on the procedural time-limits at each stage of the proceedings
(preparatory phase, intermediate phase, trial and enforcement), it can be stated that proceedings could
last for around six months.
Regarding the cost of proceedings, we should point out that, pursuant to the Constitution of
the Bolivarian Republic of Venezuela, justice is free (Article 26) so a plaintiff should not incur costs
when claiming his rights before a court other than the professional fees payable to attorneys.  The
plaintiff must, however, cover the travel costs of officials for the application of preventive measures
or any other procedural acts which require travel by the court.
The actual duration of civil proceedings, without any extra procedures, is around two years up
to the final ruling.  The courts usually take fairly rapid action, however, where preventive or
provisional measures requested by the plaintiff are ordered.
The procedural time-limits are being respected in criminal proceedings so a criminal case
usually concludes within the expected time-frame, which is around six months.
(a) Administrative procedures and remedies
9. Reply to the above questions in relation to  any administrative procedures on the merits
and remedies that may result from these procedures.
9.1 Administrative procedures relating to intellectual property are conducted by the Servicio
Autónomo de la Propiedad Intelectual (Autonomous Intellectual Property Service) (SAPI).
9.2 The holders of rights, their licensees and/or any person with a legitimate interest taking into
account the exact circumstances in each case (opposition, cancellation, forfeiture, renewal,  inter alia )
have the authority to claim intellectual property rights before the administrative body.
9.3 The “principle of freedom of evidence” applies in administrative procedures and allows the
use of any of the means of proof laid down in an y legislative text (Article 58 of the Basic Law on
Administrative Procedures).  Consequently, one of the options open to judicial authorities is to order a
party to proceedings to furnish the evidence within its  control, at the request of the opposing party, by
means of the “presentation of documents”, which is explained elsewhere in this document.
9.4 In an administrative procedure, subject to subs tantiation, some or all of the documents in the
administrative file may be declared confidential  (Article 59 of the Basic Law on Administrative
Procedures).IP/N/6/VEN/1
Page 7
9.5 Venezuela’s legislation does not have any provisi ons allowing the administrative authorities to
order measures such as the destruction of the infringi ng goods or the temporary or  definitive closure of a
business.
9.6 The duration of administrative proceedings resulting from the filing of administrative appeals
is around four (04) months.  It may be longer or  shorter depending on the administrative procedures
involved.
Provisional measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
Copyright
Article 111 of the Law on Copyright provides that a judge may order the sequestration of
everything that constitutes infringement of the right of exploitation and the seizure of the
revenue accruing to the right holder provided that proof constituting a serious presumption of
the right claimed is furnished.
Subparagraphs (a), (b) and (c) of Articl e 56 of Decision 351 – Common Provisions on
Copyright and Neighbouring Rights – provide that  the competent national authority may, as a
precautionary measure, order the immediate cessation of the unlawful activities;  the
attachment, sequestration, confiscation or preven tive seizure, as appropriate, of the copies
produced in violation of rights and the attachme nt, seizure confiscation or sequestration of the
apparatus or materials used for the commission of the unlawful act.
Industrial property
Subparagraphs (a), (b) (c) (d) and (e) of Article 246 of Decision 486 – Common Industrial
Property Regime – provide that the following prov isional measures may be ordered:  immediate
cessation of all acts constituting the alleged infringement;  withdrawal from commercial
channels of all products resulting from the alle ged infringement;  suspension of the importation
or exportation of the goods;  establishment by the alleged infringer of an adequate guarantee;
and temporary closure of the business belonging to the defendant or the accused, if necessary, to
prevent continuation or repetition of the alleged infringement.
Suspension of the effects of the administrative act  of registering a patent or trademark whose
annulment has been sought may be requested when permitted by the law or if suspension is
necessary to prevent irreparable injury or injury which it would be difficult to repair
definitively, and the court may require appropriate  security for this purpose (Article 136 of the
Basic Law of the Supreme Court of Justice).
As a provisional measure, suspension of the effe cts of the administrative act of registering a
patent or trademark may be requested before the competent court, under the constitutional
guarantee for the protection of rights, on the grounds of unconstitutionality and provided that
the requirements applicable to provisional measures  are met, those of colour of title and risk in
delay (Article 5 of the Basic Law on the Protec tion of Constitutional Rights and Guarantees).IP/N/6/VEN/1
Page 8
In both cases, copyright and industrial property, any type of provisional 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).
11. In what circumstances may such measures be ordered inaudita altera parte ?
Under Venezuela’s legislation, provis ional measures are always adopted inaudita altera parte
because of their very nature and, if this were not the case, the provisional measures would no longer
serve the purpose for which they were designed.
12. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular relevant time -limits and safeguards to protect the legitimate
interests of the defendant.
In intellectual property cases, provisional or preventive measures may be requested before
proceedings are brought, at the same time as th e proceedings or after they have commenced.
Consequently, main proceedings ab initio  on which a provisional or preventive measure depends are not
necessary.
Article 585 of the Code of Civil Procedure pr ovides that preventive measures may only be
ordered by a judge if there is obviously a risk that the court’s ruling will not be carried out and evidence
must be provided to show that there is a serious pr esumption that this is the case and attesting to the
right claimed.
As to the maintenance of such measures, Article  589 of the Code of Civil Procedure states that
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.  The decision
rests with the court.
Pursuant to Article 588, Second Paragraph, of the Code of Civil Procedure, the defendant has
the right to oppose the preventive measure ordered.  The opposition must be substantiated and a decision
is taken in accordance with Articles 602, 603 and 604, which provide that, by the third day following the
imposition of the preventive measure, the defendant may oppose it, giving the reasons and grounds for
his opposition.  Subsequently, the interested parties ar e given eight days in which to bring their case and
furnish the evidence they deem relevant;  after th e time-limit for furnishing evidence has expired, the
court gives its ruling, against which an appeal may be lodged.
Copyright
Pursuant to Article 111 of the Law on Copyrigh t, provisional measures can only be ordered if
evidence is provided to show that there is a serious presumption of the right claimed.
In accordance with this Article, if there is a dispute between the parties, the proof and measures
shall be ordered by the judge hearing the case.  If the urgency of the case so requires, they may beordered by a parish or municipal judge in the place where they are to be carried out regardless of the
amounts involved.  In such cases, the party proceeded against may protest against the said amount to the
judge hearing the case, without the production of th e proof or the application of the measure being
thereby prevented.
Where there is no dispute between the parties, the proof and the measures shall be ordered by
the parish or municipal judge of the place where they  are to be implemented if the urgency thereof so
dictates, without the owner, possessor, person in char ge, administrator or occupant of the place in which
they are to be implemented being able to oppose such production or implementation.IP/N/6/VEN/1
Page 9
The same judge shall lift the measures at the request of the party proceeded against on the
expiry of thirty (30) consecutive days after they we re implemented if he has not served notice of the
initiation of the main proceedings.
Industrial property
Article 245 of Decision 486 provides that any party initiating or about to initiate action for
infringement may request the competent national aut hority to order provisional measures immediately
for the purpose of preventing an infringement from o ccurring, avoiding its consequences, obtaining or
preserving evidence, or ensuring the effectiv eness of the action or compensation for damages.
Pursuant to Article 247 of De cision 486 – Common Industrial Prope rty Regime – a provisional
measure shall only be ordered where the persons re questing it accredit their lawful right to act, the
existence of the infringed right, and provide evidence allowing for a reasonable presumption of
infringement or that infringement is imminent.  This Article provides th at the competent national
authority may require persons requesting the measure to deposit security or a sufficient guarantee before
ordering such a measure.
This Article also determines that any person requesting a provisional measure in respect of
particular goods must supply the necessary information and a sufficiently detailed and precise
description to allow the allegedly infringing goods to be identified.
Similarly, Article 248 of Decision 486 – the Common Industrial Property Regime – provides
that, where a provisional measure has been adopted inaudita altera parte , it is notified to the party
affected immediately after its application.  The pa rty affected may appeal to the competent national
authority to review the measure applied.
Consequently, any provisional measure applied inaudita altera parte  shall automatically cease
to have effect if infringement proceedings are not commenced within the ten days following application
of the measure.
Lastly, Article 249 of Decision 486 states that provisional measures shall be applied to the
goods resulting from the alleged infringement and to  the materials or implements used principally to
commit it.
13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Usually, the time-limit for ordering preventive measures is relatively short in practice,
although this is not the case for the court’s ruling on opposition to the order to impose the measure.
An order for a preventive measure can be obtained in approximately ten days.
The amount of security, where this is required, is high, as is the cost of travel for the court.
(b) Administrative measures
14. Reply to the above questions in relation to any administrative provisional measures.
In Venezuela’s administrative procedure, pr ovisional or preventive measures consist of
suspending the effects of the administrative act against which an appeal has been lodged if its
implementation could cause serious injury to the interested party or if the opposition is based on theIP/N/6/VEN/1
Page 10
nullity of the act, for which the competent body sha ll require the prior deposit of the security it deems
sufficient (Article 87, first paragraph, of th e Basic Law on Administ rative Procedures).
Special requirements related to border measures
15. Indicate for which goods it is possible to  apply for the suspension by the customs
authorities of the release into  free circulation, in particular whether these procedures are
available also in respect of goods which involve infr ingements of intellectual property rights other
than counterfeit trademark or pirated copy right goods as defined in the TRIPS Agreement
(footnote to Article 51).  Specify, together with  relevant criteria, any imports excluded from the
application of such procedures (such as goods from another member of a customs union, goods in
transit or de minimis  imports).  Do the procedures apply to  imports of goods put on the market in
another country by or with the consent of the right holder and to goods destined for exportation?
The legal authority of the customs is the right gi ven to the competent authority to act in respect
of the goods referred to in Article 7, to authorize or prevent their customs clearance, to exercise tax
prerogatives, to determine the duty payable, to appl y sanctions where necessary and, in general, to carry
out the controls provided in the national customs le gislation (Article 6 of the Basic Customs Law) and
this right is subject to the legal au thority of the customs, (Article 7).  As regards possible infringement of
intellectual rights, pursuant to Article 250 of  Decision 486 of the Commission of the Andean
Community, the owner of a trademark may only request  suspension of customs clearance in respect of
the following:
- Any goods to be imported into or exported from Venezuelan territory;
- goods that are part of the persona l effects of passengers and crew;
- vehicles and means of transport, includi ng their equipment, spare parts, on-board
provisions, tools for navigation and the move ment of freight or persons, which are the
subject of international traffic or which transport goods;  as well as the goods which the
said vehicles or means contain, irrespective of their form;
- goods, means of transport and other effects which are the subject of domestic traffic in
territorial or internal waters, national air space and customs zones, special control areas,general warehouses, customs or duty-free warehouses.
Single paragraph:  military vehicles and transport and vehicles and transport specifically
identified by the Ministry of Finance are not subject to the legal authority of the customs unless they are
involved in international or national movement of goods and persons.
Consequently, when goods have been wit hdrawn from the customs zone but all the
requirements specified in the Law or the criteria go verning their import or export have not been met or
the applicable taxes have not been paid, the National Tax Authority may seize the goods  (Article 11 of
the Basic Customs Law).  Authority is also given to  enter warehouses, freight yards, offices, vehicles
and other private or public places subject to the lega l authority of the customs without the need for any
special authorization (Article 10 of the Basic Customs Law).
In addition to the aforementioned goods, at the request of the competent intellectual property
authority, the customs authorities shall prevent the customs clearance of goods which allegedly infringe
intellectual property rights granted in Venezuela or  derived from international agreements to which
Venezuela is party.IP/N/6/VEN/1
Page 11
The competent intellectual property body may re quest the customs authority to clear the goods
at any time, giving the grounds therefor and subject to  deposit of adequate security to protect the owner
of the right if there is infringement, the amount being fixed by the competent body.
The customs authorities shall notify the owner, importer or consignee that the goods have been
withheld (Article 87 of the Basic Customs Law).
Articles 250 to 255 of Chapter III (On Border Measures), of Title XV (On Actions for
Infringement of Rights) of the Community text Decision 486 – Common Industr ial Property Regime –
also provide for such a procedure.
Pursuant to Article 256 of Decision 486, this regi me 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 re gistered trademark may not prevent third parties
from engaging in trade in a product protected by the re gistration after the owner or  a third party, with the
latter’s consent or with economic tie s to the owner, has introduced the product into trade in any country,
even if the products, packaging or wrapping in di rect contact with the product have not undergone any
change, alteration or deterioration (Article  158 of Decision 486 of the Andean Community).
16. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirements related
to the duration of suspension (Article 55).  How have Articles 53 (security or equivalent
assurance), 56 (indemnification of the importer and of the owner of the goods) and 5  (right of
inspection and information) been implemented?
Regulations and procedures in this respect have to be complemented by domestic legislation.
Nevertheless, Articles 250 to 255 of Title XV, Chapter III (On Border Measures), of Decision 486 lay
down procedural regulations in this respect.  The owner of a registered trademark who has valid grounds
for suspecting that products infringing the trademar k are to be imported or exported may request the
competent national authority to suspend customs cl earance.  He must supply the authority with the
necessary information and a sufficiently detailed a nd 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 trademark may be allowed to participate in
the inspection of the goods withheld.  The importer or  exporter of the goods shall enjoy the same right.
When carrying out the inspection, the competen t national authority sh all take the necessary
steps to protect the confidentiality of informa tion, where applicable (Article 251 of Decision 486).
After the applicable criteria have been met and the security deposited, the competent national
authority shall order or refuse the suspension of  customs clearance and shall notify the applicant
accordingly.
If the authority orders suspension, the notificat ion shall include the name and address of the
consigner, importer, exporter and consignee of the goods, as well as the quantity of the goods
suspended.  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 in fringement within ten working days of the date of
notification of suspension of customs clearance or th e competent national authority has not extended the
suspension, the measure shall be lifted and the g oods withheld shall be released (Article 253 ofIP/N/6/VEN/1
Page 12
Decision 486).  Where the existence of infringement has been determined, the goods bearing counterfeit
trademarks that have been seized may not be re-exported nor made subject to any other customs
procedure, except in duly specified cases or with the express authorization of the owner of the trademark
(Article 255 of Decision 486).
Article 254:  after infringement proceedings have been initiated, the defendant may appeal
against the measure and the competent judge shall de cide whether to modify, revoke or confirm the
suspension.
Without prejudice to any other action open to the owner of the right 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.
17. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of decisions
by the competent authorities for the suspension of the release of goods into free circulation?
The regulatory texts do not give any precise indication of the duration of ordinary
proceedings before a definitive ruling is given.  Articles 338 to 567 of the Code of Civil Procedure,
however, regulate the procedure and some of these Articles specify a mandatory time-limit for certain
phases of the procedure, including responding to th e claim;  the period for the gathering, submission
and consideration of evidence;  enforcement of the ruling;  appeal.  The approximate duration is two(2) years, depending on the level of jurisdiction.
The cost varies and depends on the urgency and the distance.Where the infringement concerns trademarks, if the plaintiff has not initiated action for
infringement or if the competent national authority  has not extended the suspension within ten (10)
working days of the date of notification of the suspension of customs clearance, the measure shall be
lifted and the clearance of the goods withheld shall proceed.
18. Are competent authorities required to act upo n their own initiative and, if so, in what
circumstances?  Are there any speci al provisions applicable to ex officio  action?
In principle, in Venezuela there are no ex officio  measures by civil courts;  such measures 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 withheld until it is determined whether or not a punishable offence has been committed.
In cases of smuggling, the goods may be destroyed.  These measures can be carried out by the frontier
customs guard, i.e. the National Guard in the course  of anti-smuggling operations, for narcotics offences
or complaints made under the Criminal Code or  as a result of the commission of an offence.
It should be noted that Article 87 of th e Basic Customs Law empowers the customs
authorities to impose border measures, but as these must be requested in judicial proceedings resultingfrom an investigation based on a complaint or petition, it is in fact the judicial authorities that have the
competence to order them.
19. Describe the remedies that th e competent authorities have th e authority to order and any
criteria regulating their use.IP/N/6/VEN/1
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Industrial property
Pursuant to Article 241 of Decision 486 of the Andean Community, any of the following
measures can be requested:
- Cessation of acts that constitute the infringement;
- compensation for damages;
- withdrawal from commercial channels;
- prohibition of import or export;
- adjudication of the ownership of the products;
- destruction of the products;
- temporary or definitive closure of the defendant’s business;
- publication of the ruling and its notification to interested parties at the expense of the
infringer.
Copyright
Pursuant to Article 111 of the Law on Copyright and the provisions in Article 56 of
Decision 351 of the Commission of the Cartagena Agreement, the following measures may be
granted:
- Sequestration of anything that constitutes infringement of the right of exploitation;
- seizure of the revenue accruing to the owner of the disputed right of exploitation;
- immediate cessation of the unlawful activities;  attachment, sequestration,
confiscation, or preventive seizure, as appropriate, of the infringing copies produced;
- attachment, seizure, confiscation or sequestration of the apparatus or materials used
for the commission of the offence.
In addition, the Code of Civil Procedure allows requests for innominate measures provided
that the allegations specified in Article 588 are substantiated.
As provided both in Article 247 of Decision 486 with regard to industrial property and
Article 111, last part, of the Law on Copyright, an y person requesting such measures must accredit
their lawful right to act, the existence of the infringed right, and furnish evidence allowing for areasonable presumption of infringement or that infringement is imminent.IP/N/6/VEN/1
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Criminal procedures
20. Specify the courts which have jurisdiction  over criminal acts of infringement of IPRs .
For criminal cases, in accordance with the Basic Code of Criminal Procedure (COPP),
competence is determined on a territorial ba sis according to the place where the offence or
misdemeanour was committed (Article 53 of the COPP).  There are criminal courts at two levels in each
judicial district:  first instance, comprising courts where a judge sits alone ( tribunales unipersonales ),
mixed courts ( tribunales mixtos ), and courts with juries ( tribunales jurados );  the other level is appeals
courts, composed of benches wh ere professional judges sit ( tribunales colegiados de jueces
profesionales ).  The supervision of the investigation and the intermediate stage are the responsibility of
courts where a judge sits alone called supervisory courts ( tribunales de control ) and the judgement stage
is the responsibility of the law courts ( tribunales de juicio ) (Article 103 of the COPP) in the sense that
when the Basic Code of Criminal Procedure refers to the supervisory court or judge ( tribunal o juez de
control ), the law court or judge ( tribunal o juez de juicio ) and the enforcement court or judge ( tribunal
or juez de ejecución ), this always means the judge of first instance with supervisory, legal or
enforcement responsibilities, resp ectively (Article 104 of the COPP).
In this particular case, courts with a single judge, whether supervisory or enforcement courts,
hear industrial property cases covered by the Crim inal Code, the Industrial Property Law and the Law
on Copyright.
21. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
The Criminal Code provides penalties for the infringement of industrial property rights and
copyright.  Article 338 of the Criminal Code, for example, specifies a term of imprisonment of one to12 months for any person who has counterfeited or altered names, trademarks or distinctive signs
belonging to intellectual works or to the products of any industry, and for any person who has made
use of legally registered names, trademarks 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
counterfeited or altered industrial designs or models 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 term of imprisonment of one to 12 months on any
person who, for the purpose of trade, has imported into Venezuela and put on sale or in any way
circulated intellectual works or products of any industry bearing counterfeited or altered names,
trademarks or distinctive signs likely to mislead the consumer as to their origin or quality, if the
ownership of the works, trademarks or signs has been legally registered in Venezuela.
Article 340 of the Code imposes a term of imprisonment of 15 days to three months on any
person who has disclosed information concerning an invention, scientific discovery or industrial
secret that should have been kept secret and who has become aware of it because of their position or
employment or as a result of their profession, art or industry, as well as a term of imprisonment of15 days to six months if the disclosure was made to a foreigner not resident in Venezuela or the
latter’s agent.
Likewise, the Industrial Property Law imposes a term of imprisonment of one to 12 months
on any person 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 or
fraudulent copies of the subject matter of the patent , without the express or tacit consent of the owner,
as well as any person who, in order to prejudice the rights or interests of the legitimate owner, uses,IP/N/6/VEN/1
Page 15
manufactures or makes registered trademarks, models or designs or others likely to be confused with
them (Articles 98 and 99).
Any person who designates a business as a branch of another business which has a registered
trade name and who maliciously takes advantage of an industrial or commercial reputation earned bythe efforts of the other whose property is protected under the Industrial Property Law (Articles 100
and 101 respectively) shall be liable to a term of imprisonment of one to 12 months.
As regards copyright, use of the title of a work, communication in the original or a developed
form, in their entirety or in part, of intellectual works, editions of the works of others, or of texts or
photographs or products obtained by a process e quivalent to photography or images recorded on
cinematographic film, being equivalent to photography, or 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, are punishable by a term of
imprisonment of six to 18 months (Article 119 of the Law on Copyright).
A term of imprisonment of one to four years is imposed on any person who intentionally
reproduces in the original or a developed form, in their entirety or in part, intellectual works, editions
of the works of others or texts or photographs or products obtained by a process equivalent to
photography or who imports into Venezuela, stocks , distributes, sells, or circulates unlawful
reproductions thereof (Article 120 of the Law on Copyright).  The same penalty applies to any person
who copies, by any means, the performance of an actor or performer, a phonogram or a broadcast inits entirety or in part, or who imports into Venezuela, stocks, distributes, sells or circulates such
reproductions or copies (Article 121 of the Law on Copyright).
22. Which public authorities are responsible for initiating criminal proceedings?  Are they
required to do this on their own initiative and/or in response to complaints?
In Venezuela, the competent public authority fo r initiating criminal proceedings is the Public
Prosecutor’s Office, whose responsibilities in crim inal 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 authorities in order to dete rmine the identity of the perpetrators and
participants;
2. to order and supervise the activities of the po lice investigation authorities as regards the
obtaining and conservati on of items of evidence;
3. to prepare the charge and amplify it where necessary and to request imposition of the
corresponding penalty;
4. to order the filing of supporting documen ts relating to the case, subject to a
substantiated decision, where there are not sufficient elements to pursue theinvestigation;
5. in the cases permitted by the Law, to dispense with criminal action;
6. where applicable, to request dismissal of the case and acquittal of the accused;
7. to put forward objections against judici al officials and members of the jury;IP/N/6/VEN/1
Page 16
8. to initiate civil proceedings resulting from the offence, wher e this is provided by the
Code;
9. to request the competent court to impose the necessary preventive measures;
10. to participate in all activities during the pr oceedings 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 proceedings;
13. to request the competent court not to allow the plaintiff to appear in court when his
intervention repeatedly obstructs the prosecution’s action;
14. any other functions attributed to it under the Code or other legislation.
The Public Prosecutor’s Office may initiate proceedings ex officio  or at the request of the
injured party.  As far as the actions in Articles  338 and 339 of the Criminal Code are concerned, these
are public actions so the Public Prosecutor’s Offi ce is responsible for initiating the proceedings  ex
officio , although this does not prevent a private pers on from lodging a complaint with the Public
Prosecutor’s Office or with a public official in  accordance with Article 92 of the Criminal Code.
Action in the cases referred to in Article 340 of the Criminal Code and Articles 98 to 101 of the
Industrial Property Law can only be initiated by the injured party.
The offences defined in Articles 119 to 122 of  Part VII (Criminal Sanctions) of the Law on
Copyright can only be initiated on a complaint by the injured party (Article 123 of the Law on
Copyright).
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
Owners of industrial property rights, licensees and their attorneys.
In the case of copyright, any owner of one of th e rights of exploitation recognized in the legal
text, whether the original owner, the associated ow ner or the owner by operation of the law, or the
owner of copyright, a neighbouring or related right,  may bring an action.  This means that the owners
include the author and his successors in title (either as  a result of 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), the author of a broadcast work
(Article 16 of the Law on Copyright), or a computer  programme (Article 17 of the Law on Copyright),
as well as the employer or person commissioning a work when it has been made in the course of
employment relations or on commission (Article 59 of the Law on Copyright), by virtue of the
presumption of transfer of economic rights laid dow n in the relevant provisions, the publisher or the
person who has disclosed an anonymous work, as the lega l representative of the author (Article 8 of the
Law on Copyright), the photographer (Article 38 of th e Law on Copyright), the publisher of a work that
is the result of scientific work (Article 36 of the Law on Copyright) and the discloser of a posthumous
work (Article 37 of the Law on Copyright), the latter th ree 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/N/6/VEN/1
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Partners, shareholders or members in the case of offences affecting a legal person committed by
persons who direct, manage or control them and a ssociations, foundations and other bodies, in the case
of offences affecting collective or separate interest s, provided that the purpose of the group is directly
linked to such interests and that it was established prior to the commission of the offence (Nos. 3 and 4
of Article 116 of the Basic C ode of Criminal Procedure).
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- Imprisonment;- monetary fines;
- seizure, forfeiture and destruction of  infringing goods and materials and
implements for their production;
- other.
Imprisonment
The Industrial Property Law, the Criminal Code , and the Law on Copyright provide for terms of
imprisonment which, depending on the case defined in the texts, may range from one month to four
years as punishment for offences which infringe intellectual property rights.
Monetary fines
In addition to the term of imprisonment provid ed in the Criminal Code and the Industrial
Property Law, a fine of 50 to 1,000 Bolivars applies to persons who:
- Without having obtained a patent or enjoying the privileges it gives, take advantage of
it as though they had obtained it;
- use a trademark, industrial design or model without being in possession of the
corresponding certificate of registration a nd indicate that the trademark, model or
design has been registered;
- obtain a trademark for a particular catego ry of product and use it as a registered
trademark on products belonging to another category;  and
- maliciously assert that a registration is still valid even though, according to a public
declaration by the competent authority, it no l onger has effect,.  In cases of recidivism,
the penalty indicated in this Article shall be in the form of a proportionate term of
imprisonment (Article 102 of the Industrial Property Law).
As regards copyright, a monetary fine, independently of the fine applicable at the criminal level,
may accompany the judicial decision imposing the cessation of the infringing activity.
A fine is of course independent of any c onviction relating to compensation for damages.IP/N/6/VEN/1
Page 18
Seizure, forfeiture and destruction of infringing g oods and materials and implements for their production
Article 105 of the Industrial Property Law provides that any conviction in an industrial
property offence shall order the destruction of the elements used to commit the offence or prepared
therefor, as well as the objects resulting from the offence.
In the Law on Copyright, Article 97 allows acti on or claims for the purpose of obtaining the
destruction or withdrawal of the originals or copies unlawfully reproduced and of the equipment used
for the unlawful reproduction.
The judicial ruling must endorse or refuse the withdrawal or destructi on, but the equipment used
for the reproduction may not be destroyed if it can  be used for the reproduction or communication of
other material, in accordance with Article 110 of the Law on Copyright.
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 and if this is the case the
judge will not order its destruction and is empowered 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.
Other
In civil cases, Article 113 of the Law on Copyrigh t provides that, at the request of the party
concerned, the court may order that the text of the ru ling given in any of the actions covered by the Law
be published at the expense of the losing party in  one or more newspapers specified by the judge.
In criminal cases, Article 124 of the Law on Copyri ght gives the judge the authority to order the
publication in the press of the adverse or favourable judgement at the expense of the defendant or of the
plaintiff, depending on the case.
Likewise, Article 338 of the Criminal Code allo ws the judge to decide that the conviction
should be published in a newspaper specified by him, at the expense of the defendant.
Other punitive 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 infrin gement of the right of exploitation.  These measures
may only be ordered under this Article if there is pr oof of a serious presumption of the right claimed or
if the presumption emerges from the production of any of  the evidence.  In addition to the special rules
relating to copyright, the provisions in the Code of  Civil Procedure also apply so the measures indicated
do not prevent the imposition of others such as a ban on disposing of or encumbering property or
measures taken on the basis of the first paragraph of Article 588 of the Code.  Appropriate measures
(innominate measures) also apply to industrial property ri ghts if there is a justified fear that one of the
parties might cause serious injury or injury that it w ould be difficult to repair to the rights of another
party.
In addition to the foregoing, the Code of Civ il Procedure allows the application of measures
other than those determined in the legislation, pr ovided that certain specific requirements are met
(innominate measures) (Article 588).
25. Describe provisions governing the length a nd any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.IP/N/6/VEN/1
Page 19
The revision of the former Code of Criminal Procedure and its replacement by the new Basic
Code of Criminal Procedure has led inter alia  to the elaboration of a new criminal procedure that
guarantees the principles of duality, a hearing, e quality, rapidity, official procedures, adequacy and
legality, among others, and moreover these are constitutional principles.
The principle of duality means that there are two parties to proceedings which hold opposing
positions:  accuser and accused, with the judge 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;  th e accuser must also be heard both
when he makes his accusation and when he requests a court ruling.  This is the case for the prior
examination of unrepeatable evidence (Article 316), the decision on commencement of hearing
(Article 334) and the discussion in oral proceedings (Article 347 et seq ), all of which are in the Basic
Code of Criminal Procedure.
The principle of equality means that the parties have the same rights, opportunities and
responsibilities for the defence of their interests.
The principle of official procedures means that , in accordance with the public interest, criminal
prosecution is supervised by quite different State bodies which deal with the prosecution and the
procedure.
The principles of adequacy and legality:  adequacy is the counterpoint to legality, according
to which the Public Prosecutor’s Office is obliged to bring a prosecution in any case which constitutes
an offence, provided that the investigation carried out yields sufficient evidence to proceed with the
accusation.
The principle of adequacy can be seen as an exception to legality.  It means that it can be
decided not to prosecute certain criminal acts or to suspend proceedings already initiated, with or
without conditions.  In Anglo-Saxon law, this is called “plea of guilty”, a confession designed to
avoid a trial, and “plea bargaining”, when negotiations between the prosecutor and the accused
regarding the scope of the accusation lead to agreement and thus, where applicable,  reduce or
attenuate the criminal offence considered as such.
In accordance with these principles, the reform of criminal procedure in Venezuela is aimed
at the flexibility and modernization of proceedings, although it is not possible to indicate their precise
duration or specify the exact costs because these depend to a large extent on the amount of the claims
disputed and the damage caused through loss of profits or consequential damage, which are specific in
each case.  In some cases, during the preparatory and investigation phases when the facts have beenidentified, the Public Prosecutor’s Office may postpone the case for six months and request an
extension in order to obtain the elements required before sending the case for trial.
In addition, depending on the speed of the proceedings and the efficacy of the courts, it is
possible for the injured party to bring a civil action for damages caused by the offence, which mayalso be examined and decided by the judge in criminal proceedings.  This is an option open to owners
and it helps to speed up proceedings and uphold their rights.  This is the spirit underlying the action
for damages provided 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 this questionnaire.
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