Services are protected at the same level as goods as seen by the definition of a mark in section 2 of the Bill. Trade names are also protected under this Bill. Section 10(2) of the Bill states that trade names are protected even prior and without registration, notwithstanding any laws or provisions, from any unlawful act committed by third parties. The Bill, however, only provides for visible signs.

Use is not a requirement for the registration of a trademark. According to section 5 of the Bill, the Registrar shall examine the trademark and determine whether it is registrable under section 3. However, according to section 7(4): "Any interested person may request the Registrar to remove a mark from the Register, in respect of any of the goods or services in respect of which it is registered, on the ground that up to one month prior to filing the request the mark had, after its registration, not been used by the registered owner or a licensee during a continuous period of three years or longer; but that a mark shall not be removed if it is shown that special circumstances prevented the use of the mark and that there was no intention not to use or to abandon the same in respect of those goods or services."

The Act permits that the registration of trademarks be indefinitely renewable. This is provided for in section 6(6) where it is stated that a trademark is renewable every ten years.

However, in section 7(4), it gives any person the option to make a request for the removal of the trademark from the register: "on the ground that up to one month prior to filing the request the mark had, after its registration, not been used by the registered owner or a licensee during a continuous period of three years or longer; but that a mark shall not be removed if it is shown that special circumstances prevented the use of the mark and that there was no intention not to use or to abandon the same in respect of those goods or services."

The Registrar has the power to refuse or invalidate a trademark registration under section 17 of the Geographical Indications Bill if the trademark contains or consists of a geographical indication with respect to goods not originating from in the territory indicated. The reason for this is that the use of such indication in the trademark for such goods in Antigua and Barbuda could mislead the public as to their true place of origin. Section 18 applies this principle specifically trademarks for wines or spirits, which contains or consists of a geographical indication identifying such wines or spirits not having the particular place of origin. Section 19 highlights the exceptions to this rule: "(1) Nothing in this Act shall prevent continued and similar use in Antigua and Barbuda of a particular geographical indication of another country identifying wines or spirits in connection with goods or services by any national or domiciliary of Antigua and Barbuda who has used that geographical indication in a continuous manner with regard to the same or related goods or services in Antigua and Barbuda either: (a) for at least ten years preceding April 15, 1994; or (b) in good faith preceding that date. (2) Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either: (a) before the date of entry into force of this Act; or (b) before the geographical indication is protected in its country of origin; this Act shall not prejudice the registrability of or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication. (3) Nothing in this Act shall apply in respect of: (a) a geographical indication of any country with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in Antigua and Barbuda; or (b) a geographical indication of any other country with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in Antigua and Barbuda as of January 1, 1995."

A geographical indication is defined in the Bill under section 2 as: "… an indication which identifies a good as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;" "'good' means any natural or agricultural product or any product of handicraft or industry."

Under section 9 of the Bill, the Registrar in examining the application in accordance with the conditions spelt out in sections 6 and 8 must ensure that the application specifies, among other things: "(a) the geographical areas to which the geographical indication applies; (b) the goods for which the geographical indication applies; (c) the quality, reputation or other characteristic of the goods for which the geographical indication is used."

Geographical indications identifying wines and spirits are given additional protection under the Bill in accordance with Article 23 of the TRIPS Agreement. This is seen in section 12(1)(c) where civil proceedings may be instituted to prevent the use of a geographical indication which can mislead the public as to its place of origin. Section 13, however, gives this protection to geographical indications as defined in section 2 whether they are registered or not.

There has been no application and no litigation under this Bill. There is no list of names considered as generic in our jurisdiction.

According to the Industrial Designs Bill 2001 section 3(2), the legislation does not extend protection to those types of designs: "(2) The protection under this Act does not extend to anything in an industrial design which serves solely to obtain a technical result and to the extent that it leaves no freedom as regards arbitrary features of appearance." Under the Bill, protection is provided for textile designs that fall within the definition of an industrial design as given in section 3(1). The procedure for obtaining such protection is outlined in section 6, which deals with the necessary documents that must be filed with application. "(1) Where the Registrar finds that the conditions referred to in sections 3 and 4(4) are fulfilled, he shall register the industrial design, publish a reference to the registration and issue to the applicant a certificate of registration of the industrial design; otherwise, he shall refuse the application." Section 4(4) deems a design registrable once it is not contrary to public order and morality.

Under section 9 of the Bill, the rights conferred on the owner of the registered design include the protection from exploitation as defined in the Act under subsection (2): "For the purposes of this Act, 'exploitation' of a registered industrial design means the making, selling or importation of articles incorporating the industrial design." Unless consent has been given by the right holder for the goods to be imported into Antigua and Barbuda and be placed on the market, the right holder has remedies available to him in accordance with subsection (4).

The Act does not speak to the right to issue compulsory licences. A person has the right to issue a licence as long as it is registered in accordance with section 14 of the Bill in order to make it effective.

The term of protection for a registered industrial design is for a period of five years and it can only be renewed for two consecutive periods of five years. This is spelt out in section 10(1) and (2).

Under section 3 of the Patents Bill 2001, the terms novelty or new, inventiveness and industrial application are defined as follows: "(2) An invention is new if it is not anticipated by prior art. (3) Prior art shall consist of everything disclosed to the public, anywhere in the world, by publication in tangible form or by oral disclosure, by use or in any other way, prior to the filing or, where appropriate, the priority date, of the application claiming the invention. (5) An invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the invention and as defined in subsection (2)(b), it would not have been obvious to a person having ordinary skill in the art. (6) An invention shall be considered industrially applicable if it can be made or used in any kind of industry. 'Industry' shall be understood in its broadest sense; it shall cover, in particular, handicraft, agriculture, fishery and services."

The Bill does provide for exclusions in terms of the rights enjoyed by the owner of a patent. This is dealt with in section 11(4), which states as follows: "The rights under the patent shall not extend: (a) to acts in respect of articles which have been put on the market in Antigua and Barbuda by the owner of the patent or with his consent; or (b) to the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Antigua and Barbuda; or (c) to acts done only for experimental purposes relating to a patented invention; or (d) to acts performed by any person who in good faith, before the filing or, where priority is claimed, the priority date of the application on which the patent is granted and in Antigua and Barbuda, was using the invention or was making effective and serious preparations for such use."

Questions 25-28 are dealt with in section 2 where it lists the inventions that are excluded from protection under this Act in subsection 2. This is in accordance with Article 27(3)(b) of the TRIPS Agreement, which allows for the exclusion of plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. In accordance with Article 27(2), the inventions, the prevention of the commercial exploitation of which is necessary to protect public order or morality are excluded provided that such exclusion is not made merely because law prohibits the exploitation. The rationale behind these exceptions is to ensure that inventions that are dangerous to human, animal or plant life or health or would be seriously prejudicial to the environment are not protected, and inventions or in some cases discoveries that are essential to the protection and preservation life are not to be patented.

Please see the answer to question 25.

Please see the answer to question 25.

Please see the answer to question 25.

The owner of a patent has rights conferred on him as a result of the grant and these rights are listed in section 11 of the Bill. Included in these rights is the right to bring an action before the High Court for any infringement as defined in the Bill. According to section 11(2)(a)(i), the making, importing, offering for sale, and the use of the patented product without the patent owner's permission is an infringement.