IPTango: Venezuela

Showing posts with label Venezuela. Show all posts

Tuesday, 5 March 2019

How Venezuelan Crisis affects IP owners

Patricia Covarrubia March 05, 2019 No comments:

HOW VENEZUELAN CRISIS AFFECTS INTELLECTUAL PROPERTY OWNERS People who believe that cryptocurrencies have no real utility should look carefully at what is happening in Venezuela.

By Alvaro R. Bonilla. Founder BR Latin American IP LLC

You have probably never heard about the Petro, a cryptocurrency launched in October 2018 by the government of Venezuela as a measure to fight against an out of control inflation of more than 1.000.000%.

The "Petro" was launched about a year after the "Rabbit Plan" didn't work out. The "Rabbit Plan" was a national campaign for people to raise rabbits in their houses so they could have access to animal protein, something very scarce in once the richest country of Latin America. The plan did not meet the expectations as most people were not capable of killing what became their furry pet.

Well, now Petro has become the payment method for official fees for foreign IP applicants, but there is more than a catch with this.

How did we get to this point?

First, the Chavist Venezuelan government has never been a fan of Intellectual Property. In fact, they are against any private property and even more if it is an income producer private property.

For years the Venezuelan IP authority, the SAPI, became a black box were applications were filed but nothing happened. Not even a single patent was granted for many years.

One day, following the example of their socialist friends in Ecuador, they discovered that they could make a good amount of money charging incredible high official fees to foreign applicants.

The SAPI opened bank accounts in the US and later in Puerto Rico to receive payments from foreign applicants as it was not possible for them to pay in the local currency.

Later, as the Venezuela huge humanitarian, economic, social, political and international crisis became a regional problem, the US government started to impose sanctions against their regime.

The time when the SAPI was receiving thousands of dollars for a single patent annuity came to an end as their US-based bank accounts got closed.

On February 2nd, 2018, the Venezuelan Patent and Trademark Office (SAPI) advised the public to stop making registration related fee payments in foreign currency until the authorities could clarify the exchange rate to be applied. In fact, their official exchange rate is so distorted that if used applicants will end up paying pennies for their applications.

On August 23, 2018, the SAPI approved a new set of fees that represented a price increase of 142,000%, a move that sparked outrage among the IP community in Venezuela, with several of its leaders calling for the repeal of the measure.

On top of this, the SAPI entered back in low-activity mode, virtually halting the IP registration proceedings.

The situation did not change much until February 1st, 2019, when the SAPI published a new set of fees, which ended the year-long suspension of payments enacted on February 2018.

Not all was good news: according to the SAPI announcement, foreign applicants and right owners would have to make their payments in "Petros", the government-sponsored cryptocurrency.

Legal challenges have been announced against the measure, but their success is far from guaranteed.

The SAPI directive meant a new hurdle for US-based applicants, since on March 19th, 2018 the US government had issued an executive order effectively prohibiting any US person or within the US to provide financing for or otherwise deal in "any digital currency, digital coin, or digital token that was issued by, for, or on behalf of the Government of Venezuela on or after January 9, 2018."

So foreign applicants are now in a delicate situation if they do not use the Petros they might lose their IP rights in Venezuela. But if they use them to pay their fees they are at high risk of getting a sanction from the US.

Even though the "Petros" payment platform is not yet available for the general public, we recommend our clients to seek regulatory advice in their countries in order to avoid potential risks.

As with everything now in Venezuela we are not sure what is going to happen. At least we know for sure that as the "rabbit plan" is no longer working we will not have to pay official fees with rabbits.

Explain that to me, ‘despacito’ –step by step-

Patricia Covarrubia September 04, 2017 No comments:

This week we open it up with a Guest Post from David Felipe Alvarez Amezquita, a Colombian lawyer currently working on his PhD at University of Nottingham.

Explain that to me, ‘despacito’ –step by step-

Copyright and politics. Why is important for an author to keep his rights?

In support for the elections to the constitutional assembly that was recently voted in Venezuela, during a rally, President Maduro publicly used a transformed version of the song “Despacito”. The song, an unprecedented hit this year, has been used on many occasions, but this particular case has created the total rejection from its authors.

Luis Fonsi said it clearly: “I have never been consulted nor I have given permission for the change or use of the lyrics of <<Despacito>> for political purposes…” See here (Spanish).

This has not been the first case, though. During the recent presidential race in the US, the use of certain songs by Trump’s campaign was fiercely rejected.

This has been a clear example of how the role that authors play in the protection of copyright goes beyond the mere economic interests and touches the limits of freedom of expression and the exercise of democracy. But, what if the rights of the author do not belong to her or him anymore?

The General Comment 17, on “The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant)” published by the Committee on Economic, Social and Cultural Rights, highlights the fact that author’s moral interests should be understood as the protection of the “intrinsically personal character of every creation of the human mind”. This results in the right to be recognised as the creator of the works and the right to object any distortion, mutilation or other modification or derogatory action that would be prejudicial to author’s honour and reputation.

Nevertheless, in some cases, moral rights can be transferred or eventually waived. The legal tradition in which continental copyright (author’s rights) is inscribed avoid this possibility. Instead, the legal tradition for common law copyright allows that these rights can be transferred or waived. For instance, most, if not all of the Latin American countries protect author’s moral rights under conditions of inalienability, non-waiver, and perpetuity. Instead, the US has developed a complex system of protection of moral rights to produce conformity with their adhesion to the Berne Convention, article 6.2. (See for example the case of visual arts, Section 106). The UK, on the other hand, prohibits the assignation of the moral rights but accepts their waiving under written contract (sections 94 and 87).

Why is this important? Because moral rights have not been a peaceful issue in the international arena. One of the best examples of this is the express exclusion of these rights from the main elements of protection of copyright within the TRIPS agreement. By this way, moral rights have been situated outside of the international trade law. Instead, on the area of human rights, author’s moral interests have been enacted since the UDHR. How these two spheres interact on this matter is a question yet to be solved.

In this video time lapse, it can be seen how different countries have accessed to the international systems that protect copyright and author’s human rights. It calls the attention that it was not until the late 1980’s that the US adhered to the Berne Convention and that once they did, in the next decade the TRIPS agreement was adopted and the cascade of countries following this was immediate. A similar cascade occurred when the ICESCR was adopted, but the US was out of it (this country signed the Covenant but has never adopted it). Unfortunately, the ICESCR lacks on swift tools of enforceability that the TRIPS agreement has.

Nevertheless, protecting author’s moral interests can impact areas situated beyond commerce and closer to democracy. This shows that the interface between human rights and copyright towards the protection of author's fundamental rights is not something to disregard.

Even if in some cases countries with a continental tradition have tilted their policies towards a possible transferability or waiver of moral rights, as in the case of works created by a commission or under employment, it looks like a weak author within society is bad for democracy and not only for business.

David's research is related to the protection of author’s fundamental rights through copyright in a comparative perspective. He has been awarded the COLCIENCIAS and the University of Tolima scholarships for doctoral studies. He has worked as researcher and lecturer in HEIs in Colombia, as Head of the Register Office of Copyright and as Copyright Advisor for CERLALC-UNESCO.

David can be contacted here.

Actos en honor y reconocimiento al Dr. Ricardo Antequera Parilli

Gilberto Macias (@gmaciasb) November 04, 2015 No comments:

El Postgrado en Propiedad Intelectual de la Universidad de Los Andes - Venezuela nos ha informado de 2 actos que se celebrarán la próxima semana, el 10 de noviembre de 2015, en honor y reconocimiento al Dr. Ricardo Antequera Parilli, profesor de dicha Especialización e insigne figura en el área de la Propiedad Intelectual.

El primero de ellos es el acto de develación de la Placa en la que se confiere el nombre de “Dr. Ricardo Antequera Parilli” a la biblioteca EPI del Postrado en Propiedad Intelectual de la Facultad de Ciencias Jurídicas y Políticas de la Universidad de Los Andes. El acto se celebrará a las 08:00 horas en la sede del citado Postgrado.

Posteriormente, a las a las 11:00 horas, se celebrará el acto de Conferimiento de Doctorado Honoris Causa (Post-Mortem) al Dr. Ricardo Antequera Parilli, acto se tendrá lugar en el Aula Magna de la Universidad de Los Andes.

Sin lugar a dudas son dos merecidísimos reconocimientos.

Para más información y/o confirmar asistencia enviar un correo electrónico a epi@intercable.net.ve.

Venezuela: XL Jornadas José María Domínguez Escovar "Homenaje a Ricardo Antequera"

Rodrigo Ramirez Herrera @ramahr January 19, 2015 No comments:

“La Propiedad Intelectual como herramienta de competitividad. Retos en una economía globalizada” es el título de las XL Jornadas José María Domínguez Escovar que tendrán lugar en Barquisimeto, el 12 al 15 de marzo de 2015 en homenaje a Ricardo Antequera Parilli.

Algunas de las ponencias anunciadas en el programa son las siguientes:

- Revisión de la obra y trayectoria de Ricardo Antequera Parilli. Carlos Fernández Ballesteros - Uruguay

- Aspectos que componen la Propiedad Intelectual. Delia Lipszyc - Argentina

- Retos dentro la sociedad contemporánea. Nuevos temas y actores de la Propiedad Intelectual

Fernando Zapata - Colombia (Retos de las industrias culturales)

Jaime Angeles - República Dominicana (Retos a partir de la impresión en 3D),

Abel Martín Villarejo - España (el futuro de la gestión colectiva en un entorno globalizado)

- Economía, impuestos y monetización de la Propiedad Intelectual. Introducción de Ricardo Enrique Antequera

Carlos Arroyo del Río - Ecuador (Valoración de intangibles)

Luis Fraga Pittaluga - Venezuela (Fiscalidad de la Propiedad Intelectual)

Marco Antonio Palacios - Guatemala (El rol de la Propiedad Intelectual en adquisiciones y fusiones)

- Redes sociales, marcas y derecho de autor. ¿Libertad de expresión vs libertinaje?

Introducción a cargo de José Rafael Fariñas

Jaime Angeles - República Dominicana (marcas)

Abel Martín - España (Derecho de autor)

Fernando Zapata - Colombia (caso google books).

Venezuela: encouraging to register trade marks?

Patricia Covarrubia October 07, 2014 No comments:

The Venezuelan Intellectual Property Office (SAPI) informs in its webpage the ‘good’ news that it has officially computerized the trade mark search for phonetic and graphic signs. I was excited to read the title and eager to start browsing around as I always do with my students when we cover the topic of trade marks, however…well it is not that simple (time or money wise).

According to the information provided, the computer aspect of it refers to the following: service request and deliver of the information is done via e-mail -- that’s it! Yet, SAPI’s Director said that the “new system via internet searches, is a significant advance in the quality of service that we provided to users, and is due to the instruction of [Venezuelan] President Nicolas Maduro: Efficiency or Nothing."

When looking at the webpage and the process this is also noticed: “This search allows you to request a certain number of searches ...depending on the amount deposited in the bank”. The deposit ought to be done 24 hours before the search is allowed. After you do so, you will be able to use the search ‘computer’ service by submitting all details regarding the deposit (about 6 questions are asked here about the money) and you will then submit the phonetic and/or graphic trade mark you would like to search for. Finally, you will receive an email within 48 hours after application to give you the results of the search.

Money, money, money.
The cost of a search for phonetic marks is 169.00 Bs for each class you want to search. The graphic marks cost of search is 113.00 Bs per class.

How much is this, actually? The new daily minimum wage in Venezuela is 141.71 Bs…so, you do the math…no economical at all. What this really means is that you will have to skip a couple of your daily bread if you want to use this ‘quality service’ provided by the institution.

It is wrong to believe that trade marks are only for wealthy business/people. Moreover, it is recommended to register a trade mark from day one – so, before you get any return or gain from your business. The price instead of motivating small business to register, it is actually deterring them from doing so. And regarding the President’s slogan ‘efficiency or nothing’, well…it is open to debate.

Source SAPI.

A sign of the times -- or assign of the times? Venezuela at last allows recordal of deals with applications

Jeremy July 23, 2014 1 comment:

Following the withdrawal of Venezuela from the Andean Community, its Patent and Trademark Office (PTO) decided to revert to that country's Industrial Property Law of 1955. Since no regulations were promulgated under that law for the assignment of pending trade mark and patent applications, it transpired that their assignment was no longer admissible. Accordingly, until a trade mark or patent is actually granted and recorded on the register, there is no property right but only a petition to grant a property right -- and only property rights (ie registered patents and trade marks) could be assigned.

On 31 March of this year the Venezuelan Autonomous Intellectual Property Service (SAPI) published a notice indicating that, owing to business dynamics, and the fact that IP rights are property of a private nature, the applicant for a patent or trade mark registration has a priority right. Thus, since 9 April 2014 (when that notice became effective) , SAPI has allowed the recordal of assignments or any other changes of ownership (merger or change of names) against pending applications.

Source: "Trademark Office Now Accepts Assignment of Pending Applications", by Richard N. Brown (De Sola Pate & Brown Abogados--Consultores, Caracas), published in the INTA Bulletin, 1 July 2014 Vol. 69 No. 12, which contains further details and welcomes this change.

Amazon region vs amazon.com

Patricia Covarrubia May 23, 2014 No comments:

This week the Government of Peru welcomed the decision of the board of the Internet Corporation for Assigned Names and Numbers Internet Domains (ICANN), which rejected the application for registration of the domain <.amazon>.

As reported last year (here) Peru and Brazil presented an early warning (EW) of rejection of the domain registration <.amazon> applied for by Amazon EU S.à r.l. (subsidiary of ‘Amazon.com Inc.’). The application (ID: 1-1318-83013) for a new generic top level domain (gTLD) was assessed by the board and received an evaluation result as ‘Pass IE’ (initial evaluation report here). However, it is noticeable that at the end of this report there is a disclaimer which indicates that the said IE does not ‘necessarily determine the final result of the application.’

One can observe that the date of the IE is March 2013 by which time ICANN had received (on 20 November 2012) an Early Warning (EW) submission by Peru and Brazil (ID:1-1315-58086 here). In this, the two countries expressed the reason for such an opposition as follows:

• "The Amazon region constitutes an important part of the territory of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela, due to its extensive biodiversity and incalculable natural resources. Granting exclusive rights to this specific gTLD to a private company would prevent the use of this domain for purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome. It would also hinder the possibility of use of this domain to congregate web pages related to the population inhabiting that geographical region."
• "This gTLD string requested ... matches part of the name, in English, of the “Amazon Cooperation Treaty Organization”, an international organization which coordinates initiatives in the framework of the Amazon."
• "The “.AMAZON” gTLD D has not received support from the governments of the countries in which the Amazon region is located ".

This submission is followed by ICANN explaining that an EW “is a notice only". That said, it continues to explain that it is “not a formal objection, nor does it directly lead to a process that can result in rejection of the application.”

While this proviso appears crystal clear and the whole administrative procedure as such is straightforward, I wonder what is the role of the ICANN in the early stages.I am particularly amaze by the fact that GAC submission was in Nov 2012 and the IE was in March 2013 -i.e. a couple of month to consider this matter. More specifically, ICANN was made aware that Amazon is a region in Latin America [is it just me who was taught this in school? or perhaps you have heard about the Amazon rainforest and/or the Amazon river]. The reservation is: in the IE the board gave the ‘pass’ note to the issue of geographic name.

Geographic Names Not a Geographic Name - PassThe Geographic Names Panel has determined that your application does not fall within the criteria for a geographic name contained in the Applicant Guidebook Section 2.2.1.4."

Isn't this peculiar? Am I missing something? Or is it just me who seems to recognise Amazon as a region and not just where I purchase products on-line.

Venezuela: new rules assist TM oppositions and transfers of IP applications

Jeremy May 02, 2014 No comments:

From our friends at Bentata comes news of three recently-published Official Notices from the Venezuelan Patent and Trade Mark Office's Bulletin No. 546 of 9 April:

Trade mark oppositions

Trade mark oppositions may be filed on the basis of (i) non-registrability under Articles 33, 34 and 35 of the current local IP law, (ii) absolute non-registrability on public policy grounds or (iii) third parties rights based on prior applications and registrations.

Opposition writs that do not comply with such legal requirements will be declared inadmissible in the Official Bulletin though third parties that file oppositions may appeal within a set time. If not, the prosecution of the application will continue as provided by law.

Bentata comment that this Notice will help to decrease the number of oppositions that have recently been filed by third parties, acting in bad faith, in an attempt to delay grant.

Spanish sworn translation of documents

Patent and trade mark applicants are reminded that all documentation issued by a personal or legal foreign entity, public or private, must be translated into Spanish by a Venezuelan sworn translator. Simple and non-certified translations of Power of Attorney, Assignment or priority documents will not be accepted.

Change of owner regarding pending applications

As of 9 April 2014 it is again possible (as it was under the former Andean legislation) to file a change of owner (applicant) for a pending patent or trade mark application. In case of an assignment, it will be specifically required that the assignor assigns the priority filing rights of the pending applications involved in the transfer. In recent times, change of ownership has been prohibited, leading to the delay of innumerable pending applications in view of the discrepancy the PTO had in their records.

Argentina, Chile y Venezuela, los "alumnos reprobados" del Special Report 301-2013 de EE.UU.

Rodrigo Ramirez Herrera @ramahr May 03, 2013 No comments:

Como es habitual, acaba de publicarse la versión 2013 del Special Report 301 preparado por la Office of the United States Trade Representative (USTR). De Iberoamérica Argentina, Chile y Venezuela siguen este año en la “lista negra” de violación de los derechos de propiedad intelectual (Priority Watch List). España quedó fuera de la lista, igual que Brasil y Portugal. Ucrania ha sido el peor evaluado por Estados Unidos.

La inclusión de Argentina por parte de los Estados Unidos en este desdoroso ranking se basa -según el reporte-, en la piratería desenfrenada y la falsificación, incluyendo el entorno digital; en un sistema judicial ineficiente que requiere más sentencias disuasorias, y en el eterno tema de las patentes farmacéuticas.

Sobre Venezuela se dijo algo similar: que los EE.UU. siguen preocupados por la creciente piratería y la falsificación, incluida la piratería a través de Internet. Y alientan a un sistema de protección eficaz contra el uso comercial desleal, y la divulgación no autorizada de pruebas u otros datos no divulgados generados para obtener la aprobación de comercialización de productos farmacéuticos.

En cuanto a Chile (que se supone un alumno adelantado) EE.UU. fue especialmente severo en su apreciación, haciendo magno eco de los intereses de su industria y centros de interés: En efecto, el reporte sostiene que EE.UU. sigue preocupado respecto a temas de propiedad intelectual vigentes de acuerdo con el TLC con Chile. Si bien reconoce que el país austral tomó algunas medidas en 2012 para generar una nueva legislación [con una reforma completa ad portas] lo insta a implementar un sistema eficaz para hacer frente con urgencia a problemas de patentes en conexión con solicitudes de comercialización de productos farmacéuticos. Además, observa que debe mejorarse la protección tanto en contra de la elusión ilegal de medidas tecnológicas, como de señales de satélite cifradas portadoras de programas. Además insta a una mejora de procedimientos administrativos y judiciales así como el aporte de recursos disuasivos en favor de los titulares de derechos de satélite y proveedores de servicios por cable. Finalmente, y para rematar, instan a ofrecer una protección adecuada contra el uso comercial desleal, así como la divulgación no autorizada, de prueba u otros datos generados para obtener la aprobación de comercialización de productos farmacéuticos, y modificar su régimen de responsabilidad de proveedores de servicios de Internet (ISP) para permitir una acción eficaz contra la piratería.

El gobierno de Chile no se quedó de brazos cruzados y desconoció la inclusión en la "lista roja" a través de una declaración pública de la Dirección de Relaciones Económicas Internacionales (Direcon) por estar fuera de los límites del TLC entre ambos países: “a pesar de los avances realizados en estas materias, Chile ha sido, una vez más, catalogado unilateralmente por EEUU en la lista de vigilancia prioritaria”, lo que a su juicio “está fuera de los márgenes del Tratado de Libre Comercio suscrito entre nuestro país y EE.UU. y, por lo tanto, no es reconocido por Chile como un instrumento válido de calificación”.

La conclusión de Chile es clara: "el Reporte Especial 301 carece de criterios claros para catalogar a los distintos países sino que es más bien un reflejo de los intereses de la industria norteamericana de aplicar selectivamente sus estándares de propiedad intelectual a otros países".

La Direcon destaca que Chile tiene como objetivo promover la innovación y la adecuada protección y el debido acceso a la propiedad intelectual por lo que “el reporte especial 301 no refleja el compromiso y los avances que Chile ha logrado en esta materia”. Pese a ello, explican que se seguirá avanzando en el respeto de las obligaciones internacionales, coordinando intersectorialmente y buscando resultados balanceados en la elaboración e implementación de políticas públicas, así como también en los distintos foros internacionales en los que el país participa.

El ranking completo de los países "observados", es el siguiente:

Priority Foreign Country: Ucrania

Priority Watch List: Argelia, Argentina, Chile, China, India, Indonesia, Pakistan, Rusia, Tailandia, Venezuela.

Watch List: Barbados, Bielorrusia, Bolivia, Brasil, Bulgaria, Canadá, Colombia, Costa Rica, República Dominicana, Ecuador, Egipto, Finlandia, Grecia, Guatemala, Israel, Italia, Jamaica, Kuwait, Líbano, México, Paraguay, Perú, Filipinas, Rumania, Tayikistán, Trinidad y Tobago, Turquía, Turkmenistán, Uzbekistán, Vietnam.

Fuente: http://www.ustr.gov / www.direcon.cl

Venezuela: new Employment law is said to be an economic model of production, but is it really?

Patricia Covarrubia May 23, 2012 No comments:

This month Venezuela celebrates (or not) a new employment law (LOTT). Venezuelan employment legislation was first enacted on July 23, 1928. Successive partial reforms were noted in the years 1945, 1947, 1966, 1974, 1975 and 1983 and finally, underwent a substantial evolution in 1991, when it was granted the title of ‘Ley Organica’.

The new employment law (LOTTT) was signed by the president of Venezuela, Hugo Chavez, on April 30, and went into effect Tuesday 1st of May after its publication in the Official Gazette No. 6076. The Law is advertised as to guarantee the protection of labour as a social fact and just distribution of wealth. [please bear in mind that the word ‘social’ found in the legislation refers mainly to Socialism].

An economic model of production:
Reading the Legislation I went straight to Chapter IV titled ‘Of Inventions, Innovations and Improvements' to see the changes: will this be a model as the Government announces?
These are my observations:
1.- Art 320 explains Invention, innovation and improvements. It starts by indicating that ‘social’ work is the fundamental source of scientific, humanistic and technological knowledge which is required for the production of goods and provision of service to society. It continues to say that inventions, innovations and improvements are the result of ‘social’ work process to meet the needs of the people, by fair distribution of wealth.
Yet, there is not definition of what in innovation, at least to what we understand and recognise in the IP world i.e. novelty, inventive step (non-obvious) and industrial application.

The following Articles refer to entitlement (there is not subtitle in the Law but as you will notice the articles refer to ownership)
2.- Art 322 classified inventions into two: ‘service inventions’ and ‘free or occasional inventions’. This classification is used in jurisdiction such as Japan and Germany when referring to the award compensation to be paid by an employer to an employee in respect of an invention made by the employee. The article continues to explain that in both cases i.e. ‘service inventions’ and/or free or occasional inventions’ the work placement facilities, procedures or methods where the invention is produced, are necessary for them to occur.

3.- Article 323 and 324 define service invention and free or occasional invention. The former is the one performed by workers under contract or workers hired by the employer in order to research/develop. The latter, is the one that comes from the effort and talent of the inventor not employed or contracted specifically for that purpose.

4.- Article 325 – a shock? The article covers Inventions, innovations and improvements in the public sector or those that are financed through public funds that result in intellectual property rights. The article very simply and plainly states: this is considered to be public domain. No ownerships as such? What does it mean? Public domain means for the use and enjoyment of everyone, right? But I guess and being familiar witch Chavez revolution it means it belongs to the Government. Yet, the article finishes by stating that the author maintains the right to be recognised as the inventor.

Oh no! another invention!!

5.- Art 326 – another shock? This time the article covers Inventions, innovations and improvements but in the private sector. According to the new law, the inventor maintains his/her rights in perpetuity and throughout the duration of each invention, innovation or improvement. Yet, the employer is authorized to exploit the work BUT only for the duration of the contract of employment or license granted by the worker to the employer. In other words, if the employee resigns and/or is fired, the invention follows the inventor.
It continues with a sensitive statement, similar to the one found in the UK Patent Act 1977 (s40) regarding compensation for employers -- employee having a statutory right to compensation, for his invention from which his employer has derived benefit when the benefit received by employee was inadequate in relation to the benefit derived by the employer.
Finally, this Article notes that “at the end of the employment relationship the employer shall have preferential rights to acquire the invention within ninety days after notification to him by the worker or through the Employment Inspector or Employment Judge." OK, but preferential right does not mean that the inventor will not seek for better offers from other business competitors – does this mean that the invention will be owned by the best bidder?

The big issue: does the new legislation promote innovation?

There is indeed the fact that the Law is regarding Employment Law and it is advertise to protect the employee rather than the employer. But at the end of the day manufacturers need resources and as we all know monopoly rights i.e. patents, are a huge assess to some companies. In the majority of democratic jurisdiction in which I am familiar with patent law, usually an invention made by an employee belongs to his employer in circumstances such as: when the invention is made in the course of normal duties and/or if the invention is made in the course of employee’s duties and he has a special obligation. In the Venezuelan case we are seeing a situation that the invention belongs to the employee and giving a right to the employer to exploit it as longs as the employee is working for him/her.

The other point that I am wary about is when the invention is created by an employee who is working for an employer who forms part of the public sector and/or the invention is created under the sponsor of public funds, then it is understood that ownership will be for the public domain. In the latter proposition we will be looking at situations in which the private sector will not be willing to accept public funds because this implies that they will loose ownership.

Both situation of entitlement i.e. publics and private sector, do not incentive the scientific and academic sector. It appears that the law is trying to generate certain control of scientific research and development, with consequent loss of self-sufficiency in all scientific and academic sectors. This should not be a shock for the Venezuelan Industry. August last year (here) we witnessed a protest from the same sectors: academics and scientific who submitted to the Constitutional Chamber of the Supreme Court an application for revocation (on grounds of unconstitutionality) of the reform of the Law on Science, Technology and Innovation, arguing that the instrument "dramatically slows the development of science and technology in the country." Also, in December 2009 (here) we also noted that the Government has ordered to scrutinise all pharmaceutical patents that were granted under Andean Community (CAN) Decision 311, 313, and 344. The reason was based on the fact that Venezuela withdrew from the Andean block in 2006 and the legislation in place during that period allowed the registration of pharmaceutical products and process, while the previous Venezuelan legislation, the Industrial Property Act of 1956 prohibits this type of patents. At the time there was uncertainty (still is) regarding the examination procedure that the government was going to use.

Thanks to Dr A Paolini, DAC Beachcroft for passing this info to the blog.

Source Ley Orgánica del Trabajo, los Trabajadores y las Trabajadoras (LOTTT)

The news is out – are you in the list?

Patricia Covarrubia May 03, 2012 1 comment:

Early on this week the blog posted the "Special 301 Report" published annually by the United States Trade Representative (USTR). The Report re-evaluates the state of intellectual property rights (IPR)—to include protection and enforcement, in trading partners around the world.

From Latin America (LA), the list indicates that Argentina, Chile and Venezuela were placed in the "priority watch list" BUT does it mean that the other LA countries were given the o.k.?

I did have a look at the complete list and unfortunately the majority of the LA countries appear in the Watch List. I found Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Mexico, Peru and even a note regarding the situation of Paraguay, which is in the Monitoring List. Yet, the USTR is pleased to see the progress made by the country and it refers to a case decided in 2011 which obtained the first conviction under its new criminal laws. However, the USTR still has serious concerns regarding piracy and counterfeiting and advice the country to “intensify its customs actions and improve its cooperation with neighbouring countries Brazil and Argentina on cross-border enforcement of IPR.”

Under different headings I was looking for the LA countries and I found the following:

Trade marks and pharmaceutical products: There is concern with the “proliferation of the manufacture, sale, and distribution of counterfeit pharmaceuticals in trading partners such as Brazil...Peru...” It noted that there is an increase in the “practice of shipping of counterfeit products separately from labels and packaging in order to evade enforcement efforts.” It gives the example of Russia but later on it refers to Paraguay informing that they do “facilitate these illegal activities by exporting label and packaging components to counterfeit and pirated product assemblers.” It also adds that other countries such as Mexico and China are used as transit of such labels.
Piracy over the Internet and Digital Piracy It is said that the US will work in this area as to strengthen legal regimes and enhance enforcement with countries such as: Argentina, Brazil, Chile, Colombia, Mexico, and Venezuela [notice that I referring only to Latin America countries but other countries are also listed]. In this section the USTR reports that even though piracy over the Internet is replacing physical piracy, there is still production of, and trade in, CDs and DVDs and this remains as major problems in many regions such as Paraguay.
Governmental Business software: The use of only authorized business software was also in the agenda. Paraguay and Peru appear in this heading as countries that need to adopt an “effective and transparent procedures to ensure legitimate governmental use of software.”

Can we say that Latin America was given the thumb up or thumb down? I believe that as a Region we are on the list! And unfortunately this is something not to be proud of. But who are not in the list? There is always light at the end of the tunnel and thus, the region can have a look at other counterparts and neighbours such as Panama, Nicaragua, Honduras, El Salvador and Uruguay.

Priority Watch List 2012 is out! Chile (again), Argentina and Venezuela in danger zone

Rodrigo Ramirez Herrera @ramahr May 01, 2012 No comments:

On Monday, the United States Trade Representative published its annual "Special 301 Report," detailing the state of intellectual property rights around the world with American trading partners. Argentina, Chile, Venezuela, India, and Canada were given the honor of being on the "priority watch list" (with China, Russia, and others countries).

Chile remains on the Priority Watch List in 2012. The report said about this country: "[In] 2011, Chile took steps towards addressing some, but not all, outstanding IPR issues under the United States-Chile Free Trade Agreement. Recent action included accession to the Convention Relating to the Distribution of Programme Carrying Signals Transmitted by Satellite and the Trademark Law Treaty. Chile has also taken steps toward acceding to and ratifying the International Convention for the Protection of New Varieties of Plants. While this progress is welcome, major issues remain outstanding. The United States urges Chile to implement an effective system for addressing patent issues expeditiously in connection with applications to market pharmaceutical products. The United States also continues to urge Chile to implement protections against the circumvention of technological protection measures and protections for encrypted program-carrying satellite signals, and to ensure that effective administrative and judicial procedures, as well as deterrent remedies are made available to rights holders. The United States also urges Chile to provide adequate protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical products, and to amend its Internet service provider liability regime to permit effective action against piracy over the Internet. The United States will continue to work with Chile to resolve these and other issues, including through the Trans-Pacific Partnership negotiations".

Argentina, meanwhile, was cited specifically for "piracy over the Internet," while India has faced American criticism over generic knock-offs of pharmaceutical drugs, a case the Indian Supreme Court heard earlier this year.

About Venezuela said: "[V]enezuela made some progress in 2011, notably through the seizure of a larger number of counterfeit and pirated products than in previous years and through steps to enforce the 2010 Law on Crimes and Contraband, including the penalty provisions of that law. However, serious concerns remain with respect to IPR protection and enforcement. [...] Venezuela also should provide an effective system for protecting against the unfair commercial use, as well as unauthorized disclosure, of test or other data generated to obtain marketing approval for pharmaceutical products. The United States will continue to monitor Venezuela’s progress on these and other issues".

Source: http://www.ustr.gov/

Good news for trees, trade mark applicants in Venezuela

Jeremy February 04, 2012 No comments:

The IP Tango weblog learns from Karel Bentata (Bentata Abogados, Caracas) that the Venezuelan PTO Bulletin recenly published a notice abolishing the requirement of physically filing a hard copy of the trade mark search that should be filed along with a trade mark application. As from w January of this year, the Venezuelan PTO now lets applicants file trade mark applications along with a copy of the search payment receipt -- it will thus no longer be necessary to enclose the search results as this requirement has been abolished.

We are delighted to learn of this amendment to the former practice, which both improves the efficiency of the filing and review process more efficient and -- for those who care for the environment -- reduces paper waste and thus saves more trees.

Thanks, Karel, for the good news.

Venezuela: the daily bread - arepa

Patricia Covarrubia February 03, 2012 No comments:

The word ‘arepa’ has become the latest discussion in many networks comments/arguments and the like (here, and here). Arepa is the noun of our daily bread in Venezuela and also a popular dish in Colombia, Panama, Puerto Rico and other Latin America countries in which they do use the same name - arepa.

In November 2009 ‘Arepa Cafe’ opened its doors in Toronto, Canada offering to the community the traditional Venezuelan dish ‘arepa’. At the same time the company began the process for registering the trade mark ‘Arepa Cafe’ at the Canadian Intellectual Property Office – in April 2011 the Office granted trade mark protection. Simultaneously there was a young Venezuelan national with a small food stall [more of a take-away] in Kensington market (also in Toronto, Canada) by the name ‘Arepa Market’. To make the story short ‘Arepa Cafe’ started a legal battle asking the owner of ‘Arepa Market’ to remove the name that identified his business on the grounds that it confused consumers and affected its customers. The tale ended in the closure of the latter property due to its owner not been able to finance a court case.

Eventually the story became known and spread. It all started as a message on a Facebook group and suddenly it became a snowball with hundreds of comments by annoyed Venezuelans [oops including me] and even an official statement from the company involved – ‘Arepa Cafe’.

For the Venezuelan community's it is an injustice because the word ‘arepa’ is a common word in the Venezuelan and Latin American vocabulary and to see someone taken over this word is like ‘hijacking’.

The Legal MatterThe word ‘arepa’ is not a common word in English or French, and thus there is no absolute grounds for refusal of registration. This situation would not be the same if the word was ‘burger’ for example – ‘burger cafe’ and ‘burger market’ may coexist. But ‘arepa’ is not a customary word in Canada and thus the trade mark ‘arepa cafe’ is for the Canadian people a very distinctive name; to put it in another way, the word ‘arepa’ has no meaning. Yet, we are in presence of a compound sign here. The example given before: ‘burger cafe’ and ‘burger market’ may coexist because the marks are not identical and thus both an aural and visual identity may be required.

The compound name should be analysed as one rather than salami slicing the name the word ‘arepa’ stands out and thus make the trade mark distinctive. Therefore to conclude the ‘arepa’ dilemma, the sign ‘arepa market’ which is used (well, was) in the course of trade for the same services to those in relation to which the trade mark ‘arepa cafe’ has been registered is similar. I am afraid therefore that the owner of ‘apera cafe’ did have the legitimate right to enforce its trade mark.

Any hopes?While I do agree, as a Venezuelan, that the term limit any other Canadian competition in the industry, there is the possibility that the parties interested to use such a term are able to identify and establish that the term ‘arepa’ has a meaning and its customary in the trade. For example last year on July 2011 CNN published an article titled 'World's 50 most delicious foods' and the 'arepa' was placed at number 20 - winning to the croissant No 21 and brownie No 22!

Source Noticias24.

Media law in Venezuela: If you cannot show (or say) something nice, do NOT broadcast!

Patricia Covarrubia October 28, 2011 No comments:

Thanks go to my Venezuelan friends for sending me this news regarding the situation of Globovision, a TV channel from Venezuela.

Broadcasting, Media Law and Venezuela
While broadcasting organizations are protected all over the world, countries have different legal traditions on how to provide protection. Indeed, everyone has the right to freedom of expression but this does not prevent a State from requiring to have a license for broadcasting and so, it establishes certain regulations and code of conducts. This area is controversial however; especially if you are in a country where Human Rights appear not to have much of a value – just law but not in fact [I am not finger pointing any country in particular].

In 2004 Venezuela adopted the Law on Social Responsibility on Radio and Television (Ley de Responsabilidad Social en Radio y Televisión, known as Ley Resorte). Its purpose was to establish a legal framework for the social responsibility of radio and television broadcasters. Its aim is to strike a democratic balance between duties and rights and promoting social justice – taking into consideration values. At the time, the law received opposition and criticism for those that go up against President Chavez believing that the Law was once more another way for the Government to have control over the media.

In 2009, there was a post in this blog regarding the latest tendency of several Latin American countries concerning media and giving examples including Venezuela (at that time President Chavez had closed several radio stations; one TV station; and blocking in a ‘Book Fair’ the showing of a book for containing political views contrary to the President’s belief– all of these applying the Ley Resorte).

Are the rights of authors and owners stoppable?
There is no doubt that not only the law and code of practice must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material. Moreover, it is also desirable that factual matters must not materially mislead the audience. However in the other side of the coin we need also to consider that there are situations in which material which are violent needs to be shown – it is justified.

Having more or less this background I proceed to the news.
Last week, the National Telecommunications Commission (Conatel) of Venezuela fined the equivalent of about US$ 2.1 million to Globovision (a private television channel) by the treatment given to a prison crisis in June - a riot in which 20 people were killed. Tensions rose during Globovision coverage of the dispute in the jail, which showed security forces against armed prisoners – the riot lasted 27 days.

The CONATEL Official claimed that Globovision incurred in a "defence to crime" by encouraging ”public nuisance" and giving “anxiety to citizens" and promoting "hatred and intolerance for political reasons". In other words it appears that Globovision was condoning and glamorizing violent and seriously antisocial behaviour – likely to encourage others to copy such behaviour (they based its arguments in Articles 7, 27, and 29). The broadcasting also transmitted interviews with prisoners’ family members during the riot. Because of these fact Conatel argued that when the channel reported that the National Guard was "massacring" inmates it was promoting hatred and by airing the prisoners' mothers statements they created 'unrest'.

According to CONATEL the images and interviews were showed around 300 times [I guess that I do not have to be a mathematician to see that is the riot lasted 27 days, the images were produced at least 10 times per day which seems feasible bearing in mind that Globovision is a ‘News Channel’].

The vice president of Globovision, Maria Fernanda Flores, said that Marcos Hernandez, board member and president of Conatel called to ask for more balance in coverage of the riot. Flores requested access to the information and also to be allowed to go inside the prison – this was permitted to the Government TV station only [this is balance in a democratic society like Venezuela].

The International Association of Broadcasting has said that this fine and action against Globovision represents "a step toward total government hegemony".

The Human Rights Watch asked the Government to stop the harassment of the TV station and finalised its report by making the following declarative: "The decision to open an investigation and the application of sanctions for infractions of broadcasting laws are the responsibility of CONATEL, a body attached to the Ministry of Communication and Information. While defined in law as an autonomous body, CONATEL’s four-person board of directors and its director general are all appointed by the president of Venezuela and can be dismissed at his discretion."

The New Herald mentions that Globovision last year became the only opposition channel to President Chavez after another television station, RCTV, was forced to withdraw both cable TV and satellite. Other private TV channels have reduced their criticism of the President in recent years. Therefore I leave you with this last statement so you can draw your own conclusions – is Venezuela IP friendly?

Let's tango in Venezuela

Patricia Covarrubia October 18, 2011 No comments:

The Venezuelan Intellectual Property Office (SAPI) is inviting to two events:
1. ‘Seminar on Intellectual Property Trademarks, Patents and Copyright’ to be held on Thursday October 27, 2011, from 8:30 a.m. to 4:30 pm in the Auditorium Ramon Vicente Casanova (Corpoandes), Mérida.

The event is aimed at all age groups, students, teachers, professionals, entrepreneurs, communal councils and anyone interested in learning about Trademarks, Patents and Copyright.

2. Workshop 'Basics of Copyright' to be held on Friday October 28, 2011, from 08:30 am to12:00 pm in the Auditorium Ramon Vicente Casanova (as above).

The event will focus on: limitations and exceptions of copyright, collective management organizations, procedures for registration of copyright and its concepts.

More info here.

Venezuela: a tormenting week

Patricia Covarrubia September 16, 2011 No comments:

This week we posted two notes from Venezuela: an IP reform is on its way and Empresas Polar transferred its mark to a Canadian company (also the post mentioned some other Venezuelan trade marks and brands (the majority well-known) that have been transferred to other companies abroad). To this info I would like to add that Venezuela has taken steps to pull out from the International Centre for the Settlements of Investment Disputes (ICSID) which, as its name stands for, is a global for dispute resolution. While this latter news appears not to have relation with IP I regret to disagree. The foreseeable future seems to be frightening for IP authors and owners. Let us consider some matters that have been happening in this country, lately:

1.- In 2006 Venezuela withdrew from the Andean Community block which did have an impact on IP. For instance, the government declared that certain pharmaceuticals patents granted under the Andean Community (CAN) Decision 311, 313, and 344 were ‘illegal’ because the Industrial Property Act of 1956 ( in force) prohibits this type of patents. 2.-Venezuelan Government has expropriated 988 companies (401 this year), nationalising even international companies. Additionally, we need to have a look at the information provided by the Venezuela Central Bank which reports that the government owes more than $40 billion for properties nationalised by it (ConocoPhillips US $30billion; ExxonMobil Corp US $7billion; Crystalles International Corp Canada $3.8 billion; Cemex Mexico $1billion; Holcim Switzerland $650 million, upon others). 3.- Venezuela not only has expropriated physical properties but also IPRs such as the case of Venezuelan coffee roasting company ‘Fama de America’. The government expropriated its trade mark. 4.- Last month academics and Scientifics called for the annulment of the Law of Science and Technology claiming that if the law is implemented it could abolish the existence of any IP protection which “would hinder further innovation process that the law says it wants to promote.” 5.- This year Venezuela was placed on the priority watch list released by the Office of the United States Trade Representative (special 301 Report) – the study focus on the adequacy and effectiveness of U.S. trading partners’ protection of intellectual property rights(IPRs). I am sure there has been much more news regarding these matters but I bring today these ones. Without bias, I can see and say that national and foreign companies are pulling out of this country which means investments, inventions, technologies are leaving. For example, the fact that Venezuela is withdrawing from the ICSID gives a warning to foreign investments especially investors and holders of Venezuelan debt bonds amid fears of having to resolve disputes in unreliable domestic courts. For these reasons I await the reform that the government is so promoting but I have to be honest and say that I am not holding my breath on this one (it is I believe quite predictable – this means no good news for IP authors and owners).

SAPI toma posición sobre transferencias de marcas venezolanas a empresas extranjeras

Rodrigo Ramirez Herrera @ramahr September 15, 2011 No comments:

Mediante un comunicado de prensa oficial, el Director del Servicio Autónomo de la Propiedad Intelectual (Sapi) de Venezuela, José Villalba resaltó que marcas venezolanas clásicas están siendo transferidas a inversores extranjeros con la finalidad, "de obtener dólares mediante la Comisión de Administración de Divisas (Cadivi)" pues al no ser dueñas de la marca, las compañías venezolanas deben pagar por su utilización, según informó.

En el comunicado de prensa reseñó que las Empresas Polar, de alimentos y bebidas, ha vendido desde 2004 casi todas sus marcas a firmas no venezolanas, entre las cuales está Harina P.A.N. que data de 1960 y que hoy pertenece a la compañía canadiense Deutsche Transnational Trustee Corporation (DTTI) que también adquirió la marca Polar de Cervecería Polar. El mismo funcionario informó que el diario El Universal, fundado hace 102 años en Venezuela, también es una marca propiedad de DTTI. Pampero, marca de ron que pertenecía a Industrias Pampero, y Cacique, que era de Licorerías Unidas, pasaron a ser propiedad de R & A Bailey And Co., domiciliada en Irlanda, dueños de la marca Baileys. Entre los ejemplos citados por Villalba también se encuentra la marca de calzado infantil Pocholín, antes propiedad de calzados Doria C.A., que figura actualmente como propiedad de Invercentro, C.A., con sede en Panamá.

El funcionario concluyó en su comunicado que es necesario reformar la normativa sobre esta materia para regular este tipo de prácticas comerciales.

Fuente: Agencia Venezolana de Noticias

Venezuela will amend its Intellectual Property Law

Rodrigo Ramirez Herrera @ramahr September 14, 2011 No comments:

The Autonomous Service for Intellectual Property (SAPI) is preparing to amend the Intellectual Property Law, said José Villalba, the president of the Venezuelan agency.

Villalba told state-run news agency AVN that SAPI will publish three proposals from different sectors in order to inform people and to discuss the draft projects. "We have agreed to amend the Intellectual Property Law, but we believe in the concept of people acting as lawmaker. This law can not be the result of secret discussions of one or another political group. For instance, was the law proposed by (former minister) Eduardo Samán the result of a discussion?"

Villalba recalled that the current law was passed in 1955, and was not abrogated.

The official said that Venezuela and member countries of the Bolivarian Alliance for the Peoples of Our America- ALBA (Bolivia, Commonwealth of Dominica, Cuba, Ecuador, Nicaragua, Saint Vincent and the Grenadines, Antigua and Barbuda,) are subject to treaties signed with the World Trade Organization (WTO), which regulates oil marketing aspects, among other issues.

Source: www.eluniversal.com

It's enough to make your hair stand on end!

Jeremy September 05, 2011 No comments:

Here's some welcome good news for IP rights owners in Venezuela: a court there granted French hair appliance maker Babyliss the opportunity to secure precautionary measures against a business located in the Punto Fijo free-trade zone, which led to the seizure of 588 counterfeit hair straighteners. The court ordered confiscation and destruction of the goods once they had been identified as counterfeit by an expert, and the defendant agreed to cease selling such goods.

Curiously, this decision was based on the provisions of the 1993 Copyright Law, which regulate precautionary measures in favour of IP rights holders, in accordance with Supreme Court guidelines which seek to make up for deficiencies in the enforcement of trade mark rights. Orders of this nature are based on the analogy and close relationship between copyright and trade mark rights, taking into consideration the legal void resulting from the non-applicability in Venezuela of Andean Community Decision 486 on a Common Industrial Property Regime and the reluctance of Venezuela's National Assembly to pass a new IP law.

Source: "Court confirms protection of IP rights despite deficient legal framework", by Ricardo Alberto Antequera H (Estudio Antequera Parilli & Rodríguez, Venezuela), World Trademark Review, 2 September 2011