Wine Law

520 WINE LAW 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 competent authority 51 , and that it is based on the priority referred to the preference for the first application (Arts. 71 and 72 Law on Industrial Property). Following Article 32 of the same Law “the right to exclusively use a trademark is only acquired in relation to the class of products, activities or companies for which it has been registered according to the official classification, established in article 106”. Article 106(47) refers precisely to wines as an official classification. Generally, the SAPI has applied this classification, but recently, it announced that it would de-apply the national classification to all trademark applications as of 10 February 2020, and exclusively apply the international classification established by the Nice Agreement, version NCL11-2020 52 . It must be said, however, that Venezuela has not ratified the Nice Agreement. Thus, the wine produced in Venezuela will have to go through the general procedure for the registration of trademarks. To classify a particular drink as “wine”, the guidelines of the Venezuelan Commission for Industrial Standards (COVENIN, by its acronym in Spanish), must be considered. The application of these standards, whose usefulness is reiterated in consumer protection, would be based on a SAPI decision that admits the application of these standards to the classification of a drink as “rum” 53 . Thus under the COVENIN 3342: 1997 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. 51 On that note, “(…) the constitutive character of the registry, creator of rights, is an act of concession that has ex-nunc effectiveness, that is, exclusively towards the future”. Badell Madrid, Rafael, Comentarios sobre la normativa vigente en materia de propiedad industrial, in: https://www.badellgrau.com/?pag=60&ct=962. 52 Special Industrial Property Bulletin , 10 February 2020. 53 Industrial Property Bulletin , No. 459, 4 November 2003.