No, they are not protected under unfair competition law; such norms are contained in a draft decree law which is still at the conciliation phase. Under the regulations currently in force geographical indications include appellations of origin and indications of source; the former require registration in order to obtain protection, while the latter are not subject to registration.
Yes, there is one single regime of protection of geographical indications for all products.
Services are not included in the regime of protection of geographical indications.
The provisions of Article 22.2 and Article 23.1 of the TRIPS Agreement are given legal effect in Decree Law No. 228 on Geographical Indications, of 22 February 2002.
The required recognition of geographical indications is provided through the above-mentioned Decree Law No. 228 on Geographical Indications.
Prior to the application of Decree Law No. 228, twenty (20) appellations of origin were already protected: eighteen (18) relating to tobacco, one relating to peloids (medicinal muds) and one relating to mineral waters. Special Provisions 3 and 4 of those regulations maintain the protection afforded to the appellations of origin already registered.
Decree Law No. 228 affords all products the higher level of protection provided under Article 23 of the TRIPS Agreement.
Article 2 of Decree Law No. 228 defines geographical indications as "indications which identify a good as originating in a country, a region or a place, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin".
This definition does not comprise geographical indications identifying products of a certain quality or reputation which are indirectly linked to a specific region.
In determining whether recognition should be given a geographical indication, consideration must be given to whether the applicant has demonstrated the validity of the geographical name in relation to the specific geographical area. In addition, there can be no registration of geographical indications that contravene public morals or public order, or of geographical appellations which are generic of a product, or which have become a common name or designation of a product instead of associating it or identifying it with its geographical origin.
Human creativity may be involved in the making of specific products under protection by the system of geographical indications. It may be involved to any degree, provided that natural factors together with human factors contribute in some way to the process of making such products.
Other intellectual property rights such as patents may be involved, since the process for the extraction, processing or production of a specific product related to an appellation of origin may be patented. Furthermore, the container in which the product is stored may be protected by an industrial design or three-dimensional mark. The use of appellations of origin may also be associated with the use of trademarks or other distinctive signs.
The authority authorized to define the geographical region or area for which rights are claimed is the Directorate of the Hydrographic and Geodesic Service of the Republic of Cuba.
There is no specific reference to homonymous geographic indications for wines, although in fact the possible coexistence of identical appellations of origin is regulated. The Office lays down the form in which their use is to be distinguished in accordance with the methodology established to that end, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
The legislation provides for recognition and protection of geographical indications or appellations of origin of foreign countries.
Decree Law No. 228 on Geographical Indications provides that an essential prerequisite for the registration of foreign geographical indications is that they be protected in the country of origin.
The formal system for recognition of geographical indications only recognizes the right to the use of them. Registration and the right to the use of an appellation of origin may be requested by any natural or legal person, either national or foreign, provided they are located in the area of extraction, processing or production of the product protected by the appellation, by associations of such persons in accordance with the legal provisions in force and by the subsidiary bodies of the Central Administration of the State and by the local organs of the People's Authority, provided that their governmental activity is located in the area of extraction or production of the product protected by the appellation.
The Cuban Industrial Property Office is the competent authority for obtaining protection of a geographical indication.
The procedure for the recognition of a geographical indication does not take place ex officio; it is necessary for an authorized person to apply to the competent authority for registration.
Both the application for and the granting of registration of a geographical indication are subject to the payment of a fee.
An application for recognition of a geographical indication is subject to several statutory requirements, which are set out in detail in response to Question No. 23 of this questionnaire, and which have to be fulfilled within a period of three months from the submission of the application. Once registration has been granted, a fee must be paid within the period laid down; otherwise it will be considered to have lapsed.
[Answer 23: An application for the registration of a national geographical indication must include, inter alia, the name, domicile and nationality of the applicant, the appellation of origin being applied for and the geographical area covered, the name of the product protected by the appellation and proof of the relation between the applicant and the geographical area delimited by the appellation. The requirements for applications for the registration of foreign geographical indications are listed in the previous response.]
As distinct from applications for registration of national geographical indications, other criteria apply in the case of applications for registration of foreign geographical indications. These must contain, inter alia, a certificate from the institution with which the geographical indication is registered in the country of origin proving that registration has been granted, its validity in that country and the applicant's right to use it.
An application for the registration of a national geographical indication must include, inter alia, the name, domicile and nationality of the applicant, the appellation of origin being applied for and the geographical area covered, the name of the product protected by the appellation and proof of the relation between the applicant and the geographical area delimited by the appellation. The requirements for applications for the registration of foreign geographical indications are listed in the previous response.
The names of the products, a detailed description of the process of extraction, processing or production, together with their characteristics and the effects on them of the natural and human factors of the geographical area, must be set out. The current regulations do not provide protection for services.
The regulations provide for the submission of objections and comments following publication of the application in the Official Industry Property Bulletin so that any interested person may object. Once the objection or comments have been submitted, the Office notifies the applicant so that he may state his position. In any event, the Office may request documentary evidence from persons and institutions able to provide specialized opinions on the fulfilment of the requirements for granting legal protection to a geographical indication.
A holder of a prior industrial property right who considers himself affected by the application for registration may oppose recognition; similarly, any other interested person may submit comments relating to the application for registration.
Any foreign natural or legal person may apply to the Office for the registration of a foreign appellation of origin on condition that it is already currently protected in the applicant's country of origin, and provided the applicant can prove his rights to use it. The rest of the procedure with regard to the foreign appellation of origin is similar to that for national appellations of origin. Furthermore, our country is a party to the Lisbon Agreement and the regulations in force stipulate that the procedure in this case must comply with by the agreements to which Cuba is a party.
The rights to use geographical indications are granted for a period of ten (10) years from the date of submission of the application and may be renewed indefinitely for similar successive periods.
The rights to use an appellation of origin may be renewed indefinitely for successive periods of ten (10) years, for which purposes it is necessary to fill out a form providing information on the applicant and on the appellation of origin which it is wished to renew. This requires payment of a fee of $360, if the application is submitted in the six (6) months prior to the date of expiry of the registration. An application for renewal may also be submitted during a further period of six (6) months, beginning from the above-mentioned date of expiry, upon payment of the established fee, in which case there is a surcharge for delay, so that the total fee amounts to $430.
The rights to a geographical indication do not need to be used for them to be maintained. However, the regulations stipulate that a geographical indication must be used in conformity with the limits of the protection and in accordance with the established rules; otherwise it may be revoked. In addition, the Office is responsible for the State inspection of the use of geographical indications.
There is no such limit.
State inspection of the use of geographical indications is the responsibility of the Cuban Industrial Property Office.
The official body responsible for monitoring the use of geographical indications is the Cuban Industrial Property Office, which proposes the measures that it considers appropriate for effective and efficient State inspection of this activity.
Registration of an appellation of origin does not expire either through the mere lapse of time or through the extinction of all the rights to its use. If a geographical indication is not used in accordance with the terms set out in the application, the rights to its use may be revoked. Non-use of the geographical indication has no effect on the protection granted.
The procedures which lead to forfeiture of a geographical indication may take place ex officio or at the request of an interested party.
Once registration of a geographical indication has been granted the applicant has the right to its use and thus is able to use it without the need for any further procedure.
The determination is made by the entity or person that obtained the recognition.
A document certifying the granting of the right to use a particular geographical indication is issued upon payment of a fee of $170.
If there is a dispute regarding use of a geographical indication, the interested party may, in the first instance, request the Office to declare the registration null or cancelled and, in the event of failure to comply with this ruling, may seek redress through the judicial system.
Users authorized to use a geographical indication are not required to use it continually to retain their right to use it.
The regulations do not require any continuity of use.
The regime for protection of geographical indications does not allow them to be licensed.
With regard to "grandfathered use", the regulations provide that, in exceptional circumstances, nationals who for ten years preceding 15 April 1994 or in good faith preceding that date have had continued and similar use of a particular foreign geographical indication identifying wines or spirits in connection with goods or services may continue to use it for the same or related goods or services.
The regulations relating to trademarks and other distinctive signs provide, among the absolute prohibitions on the registration of trademarks, that a sign composed exclusively of elements used for purposes of trade to indicate the geographical source of a product or service may not be registered as a trademark; as a result, there can be no conflict between trademarks and geographical indications. In addition, this regulation provides, among the relative prohibitions, that a sign which contains, or consists of, a geographical indication protected in the country, whether the sign is applied to the same products, or to different products or to services, may not be registered as a trademark if its use might lead to a likelihood of association with the protected indication, or would involve unfair exploitation of its reputation or renown, for which reason the registration of geographical indications is given priority over the registration of trademarks.
The steps are set out in the response to question 44.
[Answer 44: The regulations relating to trademarks and other distinctive signs provide, among the absolute prohibitions on the registration of trademarks, that a sign composed exclusively of elements used for purposes of trade to indicate the geographical source of a product or service may not be registered as a trademark; as a result, there can be no conflict between trademarks and geographical indications. In addition, this regulation provides, among the relative prohibitions, that a sign which contains, or consists of, a geographical indication protected in the country, whether the sign is applied to the same products, or to different products or to services, may not be registered as a trademark if its use might lead to a likelihood of association with the protected indication, or would involve unfair exploitation of its reputation or renown, for which reason the registration of geographical indications is given priority over the registration of trademarks.]
In the event of conflict between a geographical indication and a trademark, the regulations relating to geographical indications provide that the registration of a trademark that is phonetically or graphically identical or similar to a registered appellation of origin may be cancelled at the request of a party or ex officio, insofar as the trademark or trade name refers to the same products designated by the appellation of origin, or to different products if its use could give rise to a risk of confusion or association, or to unfair injury to its holder, or could constitute an act of unfair competition.
The regulations provide that geographical indications shall be used in accordance with their distinctive nature and, consequently, prohibit the use of any means by which the designation or presentation or any other form would indicate or suggest that the product in question originates from a geographical place or geographical places distinct from the true place of origin, in such a way as to mislead or confuse the public as to the geographical origin of the product.
The Cuban Industrial Property Office is the institution with authority to adjudicate in proceedings involving a geographical indication, although appeals against its rulings may be made through the judicial system.
The administrative body responsible for enforcement actions relating to geographical indications is the Cuban Industrial Property Office, for which purpose the following fees are payable: - Remedy of appeal: $150.00; - re-establishment of rights: $150.00; - proceedings to nullify, cancel or revoke rights of use: $250.00; - the judicial body responsible for hearing appeals against the decisions of the Cuban Industrial Property Office is the Provincial Court of the City of Havana.
The Official Industrial Property Bulletin publishes applications and concessions of rights to use a geographical indication. It is published monthly.
There is no provision in the Penal Code for this kind of offence, although a draft amendment has been prepared with a view to punishing unauthorized use of a geographical indication.
Cuba is a party to the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration and is a signatory to three bilateral agreements with France, Germany and Peru.
Cuba is also a party to the 1883 Paris Convention, the 1891 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods and the 1995 TRIPS Agreement.
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