VENEZUELA Law and Practice Contributed by: Dana Bentata, Anette Beyer and Biddy Fraga Bentata, Bentata Abogados
mance and broadcast, where individual rights clear- ance would be impractical. They are empowered to set tariffs for assignments or licences covering works in their repertoire, and those tariffs, together with their internal rules and other key documents, must be reg- istered with the Register of Intellectual Products. Tariff disputes and broader conflicts are subject to a structured dispute resolution framework under the LDA. Users’ organisations and broadcasters may chal- lenge excessive tariffs for public communications of pre-existing musical works through arbitration before the National Directorate of Copyright. Beyond tariff disputes the National Directorate of Copyright may also act as arbitrator in disputes between right-hold- ers, collecting societies, members and users, provid- ing a specialist administrative forum for the resolution of copyright-related conflicts without recourse to the ordinary courts. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Industrial designs and industrial models are expressly recognised as patentable subject matter under Arti- cle 14 of the LPI. Nonetheless, courts have clarified that applications are examined under the law in force at the time of filing. In Decision No 00307 dated 5 June 2019, the Supreme Court held, in connection with Bulgari SpA’s 2006 application for the industrial design of its Eau Parfumée au Thé Rouge perfume bottle, that the application had to be examined under Andean Community Decision 486 rather than the LPI, because Decision 486 was the regime in force at the date of the filing of the application. The LPI distinguishes between two categories of pro- tected subject matter: (i) an industrial design patent protects the arrangement or combination of lines, colours, or both, applied to give an industrial object a distinctive appearance, whereas (ii) an industrial model patent protects the three-dimensional form of an industrial, commercial or domestic article that is distinguished from similar articles by its particular shape or configuration. Containers may be registered as industrial models, while artistic works and gar-
ments are expressly excluded from protection. Arti- cle 23 of the LPI further bars registration of designs that fall within certain trade mark prohibitions or that have already been registered as trade marks, prevent- ing overlapping use of the industrial design regime to obtain protection that would otherwise be refused or is already secured under trade mark law. Although trade dress is not expressly recognised as a standalone category under the LPI or other statute, protection for trade dress-type features is pursued through industrial design rights, where the relevant visual features are registered. 4.2 Requirements for Protection Protection is fundamentally registration-based; there are no unregistered rights available, unless a foreign rights-holder is able to substantiate a claim of “better right” based on notoriety before the IP Office when asserting an opposition or a nullity against the regis- tration of a third-party application or registration. Both industrial designs and industrial models must satisfy the statutory requirements of novelty and origi- nality, give the product a distinctive appearance of its own, be capable of domestic or industrial applica- tion, and be susceptible to commercial reproduction. Article 24 of the LPI limits protection to the external appearance of the design and does not extend to the product itself or its utilitarian function. See 4.5 Func- tionality and Technical Features . 4.3 Registration and Term An industrial design or model application must be filed before the IP Office and satisfy the same formal and substantive requirements applicable to patent appli- cations (see 1.2 Patent Granting Procedure). However, registration of an industrial design or model typically takes approximately two to three years, compared to the four- to six-year timeframe generally required for a patent grant. Industrial designs and models remain in force for ten years, counted from the date of registration. No exten- sion or renewal of the industrial design or model term is available. Once the applicable term expires, the protected subject matter falls into the public domain.
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