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Thursday 19 March 2009

Sebastian Gonzalez - Yanes

Venezuela – Reply to third party oppositions, now mandatory in order to avoid abandonment

The Venezuelan Patent and Trademarks Office (VPTO) has published an unprecedented decision (No. 782) dated February 18, 2009 and notified on the Official Gazette No. 501 dated March 02, 2009 by declaring 13.434 trademark applications as abandoned due to failure to timely reply against oppositions filed by third parties.

VPTO claims as basis to sustain decision no. 782; article No. 79 of our former National Industrial Property Law (1955) which was revived on September 17, 2008 in substitution of Decision 486 of the Andean Community.

During the applicability of the Andean Community regulations (Decision 344 and 486), applications that were subject to oppositions enjoyed the right to a suitable decision and examination by the board concerning absolute and relative grounds for refusal, even though the applicant had not filed a reply writ against the opposing party’s allegations.

In turn, our National Industrial Property Law in force, again, according to VPTO’s sole interpretation establishes on its article No. 79 that failure to submit a reply writ in defense to a third party opposition, will result in abandonment of the subject application.

The reported decision includes trademark applications with filing date ranging as far as from 1982 to 2008.

While this questionable decision may result in benefit for the opposing parties, many applicants will be affected, especially considering that a very high percentage of the oppositions were filed under the enforceability of the Andean Community regulations which did not provide, at that time, for this unexpected outcome.

The deadline to file appeal against this decision is on March 23, 2009

Sebastian Gonzalez - Yanes

Sebastian Gonzalez - Yanes