VENEZUELA Law and Practice Contributed by: Dana Bentata, Anette Beyer and Biddy Fraga Bentata, Bentata Abogados
8.3 Patents and Trade Secrets Confidential know-how and technical information may be protected as trade secrets before filing a patent application to the extent they satisfy the conditions for protection of undisclosed information under Article 39 (2) of the TRIPS Agreement (see 5.1 Legal Frame- work and Protectable Information ). However, once the application is published, the information disclosed can no longer benefit from trade secret protection. Nevertheless, trade secret protection may continue for ancillary or implementation know-how that was not disclosed in the patent filing and remains confiden- tial. For the same reason, trade secret protection can survive the expiry or invalidation of a patent, but only in respect of information that was never made public through the patent system. 8.4 Trade Marks, Trade Dress and Industrial Designs Administrative practice has established that shape and other trade dress features may attract trade mark protection, not as standalone elements, but as part of the overall visual configuration of a sign encompass- ing colour, logo elements, stylisation and layout. See 2.1 Legal Framework and Protectable Signs – “Non- Traditional Marks”. Shape and trade dress features may alternatively qualify for protection as industrial designs provided they satisfy the requirements of distinctiveness, nov- elty and non-functionality. See 4.2 Requirements for Protection and 8.1 Choice of Protection and Strate- gic Considerations – “Trade Dress”. However, shapes and packaging may not benefit from both trade mark and industrial design protection simultaneously, as Article 23 of the LPI makes those two forms of protection mutually exclusive. Moreover, industrial design protection is limited to non-functional features. Since trade mark protection depends on a sign’s function as a badge of commercial origin, ele- ments protected as trade marks will be treated as functional for industrial design purposes and therefore excluded from industrial design protection. See 4.5 Functionality and Technical Features .
8.5 Copyright and Trade Marks Logos, artistic elements and branding may attract cumulative protection under both copyright and trade mark law where the relevant feature qualifies as an original artistic work and functions as a distinctive sign identifying commercial origin. Copyright arises auto- matically upon creation and protects the expressive work as such, while trade mark law protects the same element in so far as it serves as a badge of origin in the marketplace. The two regimes operate indepen- dently, each according to its own requirements, scope and remedies, and domestic law imposes no hierarchy or mutual limitation between them. In practice, the applicable framework will depend on whether the ele- ment is being relied upon for its creative expression, its source-identifying function, or both. 8.6 Enforcement and Remedies Across Multiple IP Rights Different IP claims may in principle be joined in the same proceedings where they are procedurally com- patible and fall within the same court’s jurisdiction, subject to the ordinary rules on accumulation of actions under Articles 77 and 78 of the Code of Civil Procedure. If multiple IP rights are found to have been infringed, the court may grant relief under each applicable regime, but local law does not provide an IP-specif- ic rule on the aggregation of remedies. The general principle against double indemnification nevertheless applies, so a claimant should not expect separate damages awards for the same loss simply because the same conduct infringes more than one IP right. 8.7 International and Cross-Border Considerations Conflicts between national and international regimes in cross-border disputes are managed through the ter- ritorial nature of IP rights, supplemented by treaty obli- gations and the ordinary rules of private international law. Venezuelan courts will generally apply local law to domestic IP rights, read alongside relevant treaty obligations where applicable. Notably, under Article 23 of the Constitution, only human rights treaties enjoy constitutional rank and take precedence over inconsistent domestic law.
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