In a decision refusing an appeal by Atari Mundial, C.A., the Venezuelan Supreme Court declared the NINTENDO trademark to be notorious in Venezuela and denied Atari's application for the NINTENDO trademark. This decision not only affirmed that the concept of trademark notoriety is derived from the provisions of the 1955 Industrial Property Law that prohibits the registration of trademarks that may confuse the consumer as to the origin of a product, but also broadened this notion to allow notoriety to be based on notoriety abroad, rather than on national notoriety. This latter aspect of the decision is reminiscent of the Venezuelan Supreme Court's ruling in the GALERIAS LAFAYETTE case (see our Information Letter N.S. 181).

In addition, the Court recognized the current validity in Venezuela of Decision 344 of the Andean Pact, which has been the subject of judicial challenge.

According to the Court, the owner of a notorious trademark must prove ownership through evidence of worldwide registrations, sales and advertising. Since there were two plaintiffs, Nintendo Corp. of the U.S. and Nintendo of Japan (a subsidiary), who owned the NINTENDO mark in different countries, the case has been returned to the Registrar to determine the true ownership of the trademark.

However, it is anticipated that this decision will be cited as persuasive in future cases brought by owners whose internationally well-known marks are pirated by unauthorized parties.