Wine Law

it stated that the validity of the community regulations did not imply the repeal of the Law on Industrial Property, which only saw its validity suspended by the direct and preferential application of community rules. On the occasion of Venezuela’s withdrawal from the Andean Community, the Law “leaves the state of suspension in which it was by the application of the Community Industrial Property regulations and recovers its applicability, as long as they do not contradict the Constitution” 45 . Referring to the Paris Convention for the Protection of Industrial Property 46 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 47 , both ratified by Venezuela, in the same resolution the SAPI stated that these instruments “could not be applied directly in the substantive aspects of trademarks and invention patents, since there is no Law that has consolidated the text of such rules, nor is there a legal provision that refers to their application for the regulation of substantive aspects of trademarks and inventions”. Thus, “the acquisition of trademark rights is made in accordance with the Law on Industrial Property, where the registration is constitutive and based on priority” 48 . This assertion is evidently contrary to the procedure for the validity of the treaties that, in the particular case of Venezuela, is foreseen in the Constitution 49 and the Vienna Convention on the Law of Treaties, a Convention not ratified by Venezuela but whose rules are traditionally considered as rules of jus cogens 50 . Now, the trademark – understood as “any sign, figure, drawing, word or combination of words, legend and any other sign that is new, used by a natural or legal person to distinguish the articles it produces or with which it trades” (Art. 27 Law on Industrial Property) – has a constitutive nature, which implies that the right will only arise with the registration of the trademark before the 45 Industrial Property Bulletin , No. 497, 10 November 2008. 46 Special Official Gazette No. 4.882, 30 March 1995. 47 Special Official Gazette No. 4.829, 29 December 1994. 48 Industrial Property Bulletin , No. 497, 10 November 2008. 49 Official Gazette No. 36.860, 30 December 1999. 50 This was formally recognised by the Office of Investigation and Legal Advice of the Congress of the Republic, in an opinion dated 13 February 1992; cited in Haro, José Vicente, La justicia constitucional en Venezuela y la necesidad de un tribunal federal constitucional (Una propuesta para la Asamblea Nacional Constituyente de 1999), in: Revista de Derecho Administrativo , May-August, 1999, No. 6, pp. 51 ff., at pp. 91-92.