VENEZUELA Law and Practice Contributed by: Dana Bentata, Anette Beyer and Biddy Fraga Bentata, Bentata Abogados
7.4 Enforcement Against AI-Enabled Infringement
value because of its secrecy, and is subject to rea- sonable measures to preserve confidentiality. Trade Dress The choice between industrial design or industrial model protection and trade mark protection for trade dress will generally depend on whether the feature at issue is being protected for its ornamental appear- ance or for its ability to indicate commercial origin. Under the LPI, protection for industrial models and designs extends to the article’s external form only and does not cover the product itself or its utility, and administrative criteria practice likewise requires such applications to claim only the object’s external aspect. Trade mark protection, by contrast, is more appropri- ate where the relevant feature functions as a distinc- tive sign identifying the commercial origin of goods or services. The choice is therefore driven by whether the subject matter is valued primarily for its ornamental appearance or for its source-identifying capacity. 8.2 Cumulative and Overlapping Protection Cumulative protection is available where the subject matter independently satisfies the requirements of more than one regime: for example, copyright and trade mark law, where logos, artistic elements and branding may qualify simultaneously as original artis- tic works and as distinctive signs identifying commer- cial origin, with each regime operating independently according to its own requirements, scope and rem- edies. By contrast, certain regimes are mutually exclusive when the subject matter satisfies a requirement of one regime that by definition is precluded from protection by another. Patent and trade secret protection cannot subsist simultaneously over the same subject matter, as patent protection requires public disclosure, which is fundamentally incompatible with the secrecy that trade secret protection demands. Similarly, shapes and packaging cannot benefit from both trade mark and industrial design protection simultaneously, as expressly precluded by Article 23 of the LPI and given that signs functioning as badges of commercial origin are generally treated as functional for industrial design purposes.
The unauthorised use of protected intellectual prop- erty in model training may give rise to the remedies available under the relevant protection framework. Where a dataset qualifies for copyright protection, unauthorised use for model training may expose the user to civil and criminal liability, unless a statutory exception applies. See 3.6 Limitations, Exceptions and Defences and 3.7 Copyright Enforcement and Remedies – “Enforcement Framework”. Likewise, misappropriation of trade secrets in model devel- opment may give rise to liability under general civil, contractual and unfair competition principles. See 5.5 Enforcement and Remedies . To minimise exposure, companies should: • adopt clear policies on acceptable data sources; • train personnel on confidentiality and data-use restrictions; and • maintain auditable records showing how data was collected, processed and used throughout model training. 8. Intersections and Overlaps 8.1 Choice of Protection and Strategic Considerations Patent Versus Trade Secret Protection The factors most commonly influencing the choice between patent and trade secret protection are: • whether public disclosure is commercially accept- able; • whether the subject matter can be reverse engi- neered once commercialised; • the desired duration of protection; and • the relative ease of enforcement. A patent offers a defined term of exclusivity, but requires full disclosure of the invention or, at a mini- mum, disclosure of sufficient information such that another may reproduce the invention. A trade secret, by contrast, may last indefinitely, but only for so long as the information remains secret, has commercial
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