"New" procedure for the notification of cancellation actions

The Venezuelan Intellectual Property Office (SAPI) implements a “new” procedure for the notification of cancellation actions due to lack of use

The Official Industrial Property Bulletin No. 576 dated July 21, 2017, and after nine years, non-use cancellation actions and nullity actions filed on September 13, 2016 against the trademark “VELAS Y VELONES SEGOVIA” were notified. This notification, that fails to keep the proper order of priority, does not justify the urgency. With this publication, hundreds of actions of this type filed previously were left behind, thus violating the ‘first come, first served’ procedural principle, meaning that the public administration must decide the causes in the order that they were filed.

The notification is made in the following terms: “Pursuant to articles 73 and 76 of the Organic Administrative Procedure Law, this is to notify the trademark owner set forth below that a cancellation action was filed in accordance with Article 36(d) of the Industrial Property Law; for this reason, such owner must appear before this Office within a period of 15 days as of publication in the Industrial Property Bulletin in order to file, in accordance with Article 53 of the Organic Administrative Procedures Law, the allegations and evidence that it deems convenient, necessary for the better knowledge of the matter to be decided.”

About this statement, the Office does not only disregards the ‘first come, first served’ procedural principle, but also applies articles of the Organic Administrative Procedure Law (LOPA) to regulate special procedures established in the Industrial Property Law. Although this is not contrary to law, in our opinion, any of the procedures framed within this special law, such as that oppositions, are of preferential application.

In this regard, we consider that the Intellectual Property Office (SAPI) had the power to establish in the Notification the terms under which the expiration and nullity actions had to be processed, being possible to frame them by analogy within the term of 30 business days available for the opposition procedure. However, it was made within a short period of fifteen (15) business days, which undoubtedly violates the right to defense of all those owners against whom the actions were filed.

We must emphasize that since 2008, the Intellectual Property Office has failed to notify the non-use cancellation actions and nullity actions filed after reinstatement of the Industrial Property Law, unjustifiably paralyzing these procedures for more than 9 years. The question we ask ourselves is: Why was only one of the thousands of similar issues that remain in the files of the Autonomous Service notified?

Could it be the normative gap on the applicable procedure and execution deadlines one of the reasons why the Office leaves all the cancellation and nullity actions in limbo, in a state of complete legal uncertainty? The Industrial Property Law of 1956 does not contemplate a procedure as it did the –formerly applicable- Decision 486 of the Common Regime on Industrial Property of the Andean Community.

We are convinced that transparency is a fundamental rule to generate confidence, and as long as the Intellectual Property Office does not publish resolutions explaining the reasons for its delay in resolving conflicting issues, the country will continue to be seen as an unreliable destination for investments in connection with Intellectual Property.