The New “Six Pack”: Legislative Reforms That Will Modernize Intellectual Property Protection in The Bahamas.Posted January 29, 2016 in IP News
With the recent passage of six Intellectual Property Bills in September 2015 by the Senate, The Bahamas prepares to enter into a new legislative IP regime and become a member of the World Trade Organization (WTO) which has the potential to stimulate the Bahamian economy and significantly qualm foreign investor trepidation concerning the effectiveness of intellectual property protections in the Bahamas.
The recently passed Bills, were enacted by parliament on October 10th 2015 and although not yet in force, the Copyright (Amendment) Act 2015, The False Trade Descriptions Act 2015, The Geographic Indications Act 2015, The Integrated Circuits Act 2015, The Patents Act 2015 and Trade Marks Act 2015 represent a significantly improved legislative framework spanning the protection of intellectual property rights.
With the modernization of intellectual property legislation, The Bahamas aims to solidify its position on the international stage as a respected player, having appropriately recognized the undeniable correlation between effective intellectual property protections, innovation, creativity, branding and the invaluable contributions these factors have made to bolster international trade. Moreover, the enacted intellectual property legislative framework, essentially affords international players with equal, if not greater, intellectual property protections that exist in other regions.
This progressive legislative step was in fact, years in the making, as the original application dates back to May 2001, however, now, more than ever, the Bahamas is one step closer to WTO membership; and these Acts lay the foundation to the nation’s future commitment to comply with WTO Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement requirements. The passing of these Bills also permit the country’s prior obligations under the Economic Partnership Agreement (EPA) between Caribbean Forum (CARIFORUM) countries and the European Union to be sustained. The Bahamas signed the EPA in 2008, and this agreement requires new legislation to be made that adheres to TRIPs standards.
The introduction of these six Acts, although not indicative of the only reforms to intellectual property legislation, marks the commencement of a new intellectual property regime in The Bahamas and brings the IP regime, along with a newly structure Intellectual Property Office, in line with modern WIPO practices which reflects the needs of multilateral trading systems.
As part of its accession process to the WTO, countries are required to update existing and or pass new legislation that apply TRIPs standards as well as enhance supportive systems to adequately administer and enforce intellectual property rights. Additionally, WTO members are required to update and keep the WTO abreast to national laws, regulations and any changes in enforcement mechanism relative to intellectual property protection. The ‘non-blanket’ application of TRIPs standards therefore, has the benefit of permitting developing countries to apply standard in a multifaceted manner and in response to national priorities and technological, social and commercial changes. Further, compliance with TRIPs agreement requirements is that generally ease trade concerns regarding IP issues, while leaving WTO members flexibility to pursue domestic policies and safeguard important national interests.
Although the aim of the new series of IP legislation was initially to make Bahamian legislation adequately mirror the standards as established by the WTO; the end result, at least according to the US Trade Representative Office’s 2015 report on the Caribbean Basin Economic Recovery Act is that the eight tier intellectual property Bills exceed international requirements.
While there is the introduction of several new laws and amendments to the collective legislative package, it is worth a brief consideration of some of the most notable changes to the IP regime in the Bahamas. The amendments as passed under the Copyright (Amendment) Act 2015 will bolster enforcement procedures and empower the law enforcement to search and confiscate, goods bearing false and or infringing trade marks.
The new Trade Marks Act 2015, will repeal the existing Trade Marks Act (Chapter 322) which afforded registered trade mark holders statutory protection for goods only; and modernize the trade mark law registration process in the Bahamas. Under the new Trade Marks Act 2015, an added protection not previously recognized in the Bahamas, is that of protection for service marks as well as the adoption of an International Class system.
The Patents Act 2015 will make provisions for future patent applications and for protections for inventors. Additionally, it will give effect to certain international conventions and treaties including the Paris Convention for Industrial Property (1883), the Budapest Treaty (1977) and Patent Co-operation Treaty (1970).
The False Trade Descriptions Act 2015 would make it an offense, punishable by tiered fines or imprisonment, for a person to sell or expose for sale, goods to which any false, or materially misleading trade descriptions are affixed. The introduction of this Act further reiterates the need for accuracy and transparency as to the quality, quantity and origin or goods circulated in The Bahamas.
The Integrated Circuits Act 2015 provides protection for creators of original layout designs that have not been commercially exploited; and where they have been commercially exploited elsewhere, protection can still be secured provided, the exploitation does not exceed a two year period prior to the application.
These legislative reforms represent the nation’s commitment to international best practices which in turn, result in domestic benefits as well as the legislative framework significantly increasing protections for Bahamian innovation and exports as well as increases foreign investors reconsider investment opportunities in the Bahamas.
While these Act are currently not yet in force, they will provide a significantly improved legislative framework for intellectual property rights and enforcement mechanisms in The Bahamas thus enabling local and international right holders to conduct international trade with ease and confidence for years to come.
Attorney & Barrister-at-Law Rodger Outten counsels and represents clients on a spectrum of intellectual property matters and provides sound advice regarding copyright, trade mark, patent and industrial designs protections and strategies.
Rodger Outten can be contacted:
OuttenIP,Counsel & Attorneys 201 West Bay Street, Nassau, Bahamas.