ONLINE INFRINGEMENT
providing specific online services in Venezuela. Tese risks include the possibility of being jointly responsible in legal cases where one of the company’s partners or service providers is not complying with the national law.
Terefore, it is important for any international Internet entrepreneur to know how its contractual parties understand Venezuelan environmental factors
(social, economic and
political), and how familiar they are with the Venezuelan laws, in order to prevent any legal dispute. Venezuelan authorities might consider certain activities as contrary to ethical and good public moral standards, as the government interpretation of these concepts tends to be wider and more subjective.
Entrepreneurs should be alert in the early stages of negotiations on how they should manage legal aspects in Venezuela. Private contracts must be thoroughly reviewed and must include specific clauses to avoid liabilities not only in accordance with the Law on Social Responsibility on Radio, Television and Electronic Media, but also with the application of non-specialised national laws that might be applied to regulate Internet disputes.
Tere are several Internet companies that do not use any kind of legal counsel when starting web businesses in Venezuela. Even though most of these companies have been operating and providing online services without any legal consequence, they might be the target of a great variety of legal actions based on the lack of formalities and legal protections.
Private contracts with specific clauses, including the selection of a favourable jurisdiction, are important considerations that
Internet
entrepreneurs should take into account when contracting in Venezuela. Furthermore, companies should demand that their business partners have their trademarks registered, and should perform routine background checks on any current and potential legal disputes that these partners might have in the future.
Internet fair use
In Venezuela, there is a blurry line with respect to what can be considered fair use on the Internet. Different Internet companies have been indiscriminately using identical or similar trademarks owned by third parties without any express consent.
In this sense, monitoring and surveillance systems have also become part of companies’ everyday activities, while cease and desist letters are a very common practice for well-known organisations seeking to protect their IP assets online.
www.worldipreview.com Recommendations
“SURVEILLANCE SYSTEMS HAVE BECOME PART OF COMPANIES’ EVERYDAY ACTIVITIES, WHILE CEASE AND DESIST LETTERS ARE A VERY COMMON PRACTICE FOR WELL-KNOWN ORGANISATIONS SEEKING TO PROTECT THEIR IP ASSETS ONLINE.”
As enforcement by the Venezuelan government related to IP infringements is not very strict and expeditious, this situation means that Internet business owners are trying to protect their IP assets by any means, including the application of the current IP legislation in Venezuela. However, as mentioned before, this law was passed in 1955, when electronic media did not affect any company’s business.
Trade secrets protection
For many Internet companies around the world, the most valuable assets are their trade secrets. Tere
undisclosed information that represents an important economic value to their business. Tis economic value derives from the fact that such secret information represents an advantage with respect to the competition, while companies must implement strict security measures to ensure its confidentiality. Terefore access to the company’s database, programming codes, and other secret information should be allowed only to specific employees in order to avoid any misappropriation.
Considering that the Venezuelan Industrial
Property Law of 1955 does not include trade secrets protection, the necessity of
thoroughly and fully articulated legal contracts to maintain the secrecy of
information has become extremely important.
Accordingly, the nature of Internet business demands specific contractual clauses under which to plan and execute business strategies in Venezuela and, although specific situations can be regulated implicitly by the local law, it is firmly recommended to protect the company’s business through a well draſted contract.
draſting the company are Internet companies with
Among the most important recommendations for any entrepreneur trying
to enter the
Venezuelan Internet market are: • Legal counselling from the beginning; • Performing background checks on
the
company’s business partners and service providers;
• Local trademark registration of the company’s brand, as well as for those business partners and service providers, to ensure a ‘healthy’ branding strategy on the Internet;
• Well draſted and articulated legal contracts including clauses to establish favourable jurisdiction, as well as the protection of trade secrets;
• Monitoring and surveillance systems to
prevent any IP infringement or any situation that may affect the functioning of their business; and
• Establishing a short-period contracts strategy considering the changing nature and fast-moving business environment of the Internet.
Joaquin Nuñez is a lawyer at Hoet, Pelaez, Castillo & Duque. He can be contacted at:
jnunez@hpcd.com
Joaquin Nuñez joined Hoet, Pelaez, Castillo & Duque in December, 2012. His practice expertise embraces trademarks, copyrights, patents, trade secrets, advertisement agreements, and general intellectual property related matters. He has more than eight years of experience as consultant in the field of IP law in Venezuela. He was also an international trademark counsel at Dineff Trademark Law Limited in Chicago, Illinois (2007-2008). He is a member of the Inter-American Association of Intellectual Property and the Caracas Bar Association.
World Intellectual Property Review September/October 2013 145
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