Information for Review under TRIPS Art. 24.2 (Checklist of Questions on GIs) - View details of the document

Venezuela, Bolivarian Republic of

The law of the Andean Community, created by the Cartagena Agreement, protects geographical indications2 through the application of the rules laid down in Decision 3443 - Common Provisions on Industrial Property. In accordance with Article 131 of the above-mentioned Decision, "the use of appellations of origin by unauthorized persons shall be considered a sanctionable act of unfair competition". The Article also provides that "the right to the exclusive use of an appellation of origin shall originate with the declaration that the competent national office makes to that end". Consequently, a declaration by the competent national office is necessary for the grant of protection and recognition of the appellation of origin.

Yes, there is a single regime of protection and it is set forth in Chapter VII (Articles 129 to 142 inclusive) of Decision 344.

The Community provisions apply solely to goods.

As mentioned in the previous answer, it is Chapter VII of Decision 344 – Common Provisions on Industrial Property. However, with regard to TRIPS Article 23, first paragraph, Decision 344 does not provide for specific treatment of specific products (in this case wines and spirits) but rather a general treatment for all goods.

[Answer 3: The Community provisions apply solely to goods.]

Does not apply.

Does not apply.

Protection of specific products is not provided for; protection of appellations of origin is of a general nature.

Article 132(b) of Decision 344 establishes that those appellations of origin may not be declared such that: "… are liable to mislead the public as to the source, nature, manner of manufacture or characteristics or qualities of the products concerned".

Article 129 of Decision 344 states that "an appellation of origin shall be understood to be a geographical designation consisting of the name of a particular country, region or locality, or of a name which, without being that of a particular country, region or locality, refers to a specific geographical area, which name is used to designate a product originating therein the qualities or characteristics of which are exclusively or essentially due to the geographical environment in which it is produced, including both natural and human factors".

The definition of appellation of origin in Decision 344 covers the definition of geographical indication contained in the TRIPS Agreement.

The criteria are that the qualities or characteristics of the product are due exclusively or essentially to the geographical environment in which it is produced: hence they take the appellation of the locality or region of their provenance.

According to Article 129 of Decision 344, both natural and human factors are included in relation to the specific products that may enjoy protection because they come from a specified geographical environment.

No, but the protection and some of the procedures relating to appellations of origin follow the same principles as in the case of trademarks.

The competent national office of each member country of the Andean Community.

No.

Article 142 of Decision 344 authorizes national offices to declare appellations of origin of other countries of the subregion protected. In the case of third countries, protection may be granted if the appellation of origin is protected in the third country and there is a written agreement or the latter country grants reciprocal treatment in that respect.

This does not exist in Community law.

No. As mentioned in footnote 1, under Community law the concept of "geographical indication" is equivalent to that of "appellation of origin".

No, the provisions are general and apply to any product.

Protection of an appellation of origin may be carried out ex officio or at the request of persons who can prove a legitimate interest, understood as being natural persons or legal entities directly engaged in the activity giving rise to the protection and carrying out such activity within the territory specified in the declaration. Protection may also be requested by local or state authorities interested in the protection of appellations of origin of their own areas of concern.4 It should also be noted that the authorization to use an appellation of origin declared protected by the competent national office may be applied for only by those directly engaged in the extraction, production or processing of the products identified by the appellation of origin and who conduct the said activity within the territory specified in the declaration.5

Only from the competent national office of each member country. In Venezuela the competent national office is the Autonomous Intellectual Property Service (SAPI) attached to the Ministry of Industry and Trade.

Both possibilities exist, but requirements are laid down for the submission of applications for protection.

Article 145 of Decision 344 provides that "the competent national offices may introduce such fees as they consider necessary for the handling of the procedures referred to in this Decision".

No. It is also necessary to determine the product or products that will be identified by the requested protection, as well as their characteristics and the information required by the competent national office.6

Article 134 of Decision 344 lays down the following requirements for the application for declaration of protection: (a) Name, domicile, residence and nationality of the applicant or applicants, and legal interest; (b) the appellation of origin in respect of which the application is filed; (c) the geographical area within which the production, extraction or processing of the product to be identified by the appellation takes place, demarcated according to geographical features and political divisions; (d) a detailed description of the product or products that the appellation applied for will identify, together with the characteristics thereof; (e) any other information stipulated by the competent national office.

Article 137 of Decision 344 states that authorization to use an appellation of origin declared protected by the competent national office "shall be applied for before the said office by those persons who: (a) Are directly engaged in the extraction, production or processing of the products identified by the appellation of origin; (b) conduct the said activity within the territory specified in the declaration; (c) comply with other requirements imposed by competent national offices".

Yes, they must.

Article 135 of Decision 344 states that in this case the procedure is that followed in the case of registration of a mark, in other words, anyone with a legitimate interest may submit comments within 30 working days following publication of the application; thereafter, the competent national office analyses the comment, and if it finds it valid, notifies the applicant. The latter has 30 working days to submit a rebuttal, after which the decision on granting or refusing the protection has to be taken.

Any person having a legitimate interest in doing so.7

Article 142 of Decision 344 empowers competent national offices to grant protection of appellations of other countries of the subregion where the application for such protection is filed by producers, extractors, manufacturers or craftsmen who have a legitimate interest or by the public authorities of those countries. In the case of other countries, protection may be granted where the appellation of origin is protected in that country and there is a written agreement with that country or the latter grants reciprocal treatment in that connection.

The grant of an appellation of origin is indefinite in terms of time, but the entitlement for a producer to use it by means of an authorization has a duration of ten years, which may be renewed for equal periods.8

See the reply to the previous question.

[Answer 28: The grant of an appellation of origin is indefinite in terms of time, but the entitlement for a producer to use it by means of an authorization has a duration of ten years, which may be renewed for equal periods.8]

We do not have any such provision in Decision 344.

No.

The competent national office (Article 136).

Decision 344 does not have any provision in this regard.

The competent national office may terminate it ex officio or at the request of an interested party to the competent national office, in accordance with the criteria laid down in Article 140.

According to Article 140 of Decision 344, "the competent national office may, either ex officio or at the request of a party, invalidate the authorization to use a protected appellation of origin, after the parties have been heard, in it has been granted in contravention of this Decision".

Once an area has been declared an appellation of origin by the competent office, the interested party has to apply for authorization from the competent national office to use the appellation of origin. The office will assess the status of the producer, manufacturer or craftsman. Following authorization, the geographical indication may be used.

The entity responsible for the recognition.

Article 145 of Decision 344 provides that "the competent national offices may introduce such fees as they consider necessary for the handling of the procedures referred to in this Decision".

Decision 344 refers to the procedure in respect of marks.

No requirements are laid down for monitoring the use of an appellation of origin. The only requirement is that once the protection period has lapsed, the person who has the authorization must apply to renew it within six months, failing which the authorization expires.

This possibility is not provided for, but a party may apply for the authorization to use an appellation of origin to be cancelled if it has been granted in contravention of the Andean Decision, in which case the dispute has to be settled by the competent national office.

Decision 344 does not provide for this possibility. All that is provided for is the authorization to use a protected appellation of origin.

Decision 344 does not contain any provision in this regard.

Decision 344 only provides that as regards procedures, duration of protection, authorization and renewal of authorization, the same criteria as are applicable for trademarks shall be followed.

Decision 344 does not provide measures in this regard.

Decision 344 does not provide measures in this regard.

Yes, Article 82 of Decision 344 states that those signs may not be registered as marks that: (i) Reproduce or imitate a protected appellation of origin, consist of a national or foreign geographical designation that is liable to be misleading in relation to the products or services to which it is applied or, in use, to mislead the public as to the origin, source, qualities or characteristics of the goods for which the marks are used". Accordingly, cancellation of registration of a mark may be applied for, ex officio or at a request of a party.

Rights relating to geographical indications are governed by Decision 344 – Common Provisions on Industrial Property. The legislation on marks for member countries of the Andean Community are also contained in Decision 344, which provides for the possibility of cancelling registration owing to inappropriate use of protected geographical indications as a mark (see previous reply).

[Answer 38: Yes, Article 82 of Decision 344 states that those signs may not be registered as marks that: (i) Reproduce or imitate a protected appellation of origin, consist of a national or foreign geographical designation that is liable to be misleading in relation to the products or services to which it is applied or, in use, to mislead the public as to the origin, source, qualities or characteristics of the goods for which the marks are used". Accordingly, cancellation of registration of a mark may be applied for, ex officio or at a request of a party.]

Each member country through its competent national office.

The competent national office of each country.9 The fees for applications to these offices depend on each country. If an action is brought before the national courts and they have to take a decision relating to the provisions of the legal system of the Andean Community, they must refer the matter to the Court of Justice of the Cartagena Agreement for a ruling on the disputed matter, in what is called a pre-judicial interpretation.

For the declaration of protection of an appellation of origin to be granted, the application must be published once only (each country determines where, usually in its official journal), which enables possible interested parties to be aware of the procedure.

Decision 344 does not provide for this; it is a matter for the domestic law of each country. Venezuelan law does not provide for criminal action under the 1995 Industrial Property Law.

Decision 344 contains the basic provisions to be applied by each of the member countries of the Andean Community in relation to appellations of origin. In addition, all the member countries are members of the World Intellectual Property Organization (WIPO) and have signed the TRIPS Agreement.

The member countries of the Andean Community are also members of the Paris Convention for the Protection of Industrial Property.