Article 58 of the Patent Law provides that the owner of the patent may request the competent court, either before or during the civil or criminal proceeding, to issue a writ of attachment on the invention or industrial design, or on the establishment or the part of establishment using or exploiting a patent, in relation to which an infringement or an unlawful act has been committed. The other IP laws provides for the same principle.

The Civil Transactional Law provides for compensation for the opposing party who has been subject to the injury he suffered.

See the answer to question no. 51.

See the answers to questions nos. 47 and 50.

Article 59 of the Patent and Designs Law states that the applicant of the precautionary seizure should deposit a bail evaluated by the court prior to issuing its order for seizure and the seizer should file the relevant action within eight days as from the date of the issuance of the court’s order otherwise the matter shall be deemed null and void. Moreover, it is permissible for the attached person to file an action for compensation within sixty days as from the date of the termination of the previous term or from the date of issuing the final decision of refusing the relevant action, which the seizor preferred. Furthermore, it isn’t permissible to cash the bail referred thereto except after the issuance of a final decision in the seizor’s action or the claim of compensation which the attached person filed. Also the Trademarks Law provides in its Article 43 for provision aimed at indemnifying the defendant through a judicial decision.

Article 58 of Patent Law provides that the owner of the patent may request the competent court, either before or during the civil or criminal proceeding, to issue a writ of attachment on the invention or industrial design, or on the establishment or the part of establishment using or exploiting a patent, in relation to which an infringement or an unlawful act has been committed. Temporary and rapid measures against any violation of intellectual property rights are provided in the other laws. Customs department is allowed to take measures at the borders to prevent any violation of intellectual property rights in accordance the above-mentioned laws as well as under Customs regulations. These measures are taken either following the demand of the right holder or on the basis of judicial order.

The competent court is responsible to decide on preventive seizure. Customs are also responsible for suspension of customs release for a fixed period in response to an application by the rights holder or the public prosecution or by its own initiative.

The same rules mentioned in the answer the question no. 56 are applied to this question.

The Patent Law Article 61 allows the court to order the destruction of the equipment used in committing the act of imitation and remove the effects of any illegal act. The Copyright Law provides for the same measures. The Trademarks Law Article 43 provides for the destruction of the illegal marks and the products and packaging and tools of packaging and other articles bearing in the illegal marks.

There is no indication in the three intellectual property federal laws of the de minimis imports exception.

Punishment related to illegal acts that affect intellectual property rights are provided in the three intellectual property rights laws. Imprisonment and a fine are provided as sanctions in Article 37 of the 1992 Trademarks Law No. 37, Article 60 of the 1992 Patent Law No. 44 and in the 1992 Copyright Law Article 37.

In Barbados, the protection of plant varieties as contemplated in Article 27.3 is not considered under the Patents Act, 2001-18 but instead under the sui generis provisions of the Protection of New Plant Varieties Act 2001-17. Section 11 of the Patents Act 2001-18 provides that "(1) Whether or not they constitute an invention within the meaning of this Act, the following are not patentable under this Act, namely, (a) discoveries, scientific theories and mathematical methods; (b) schemes, rules or methods for (i) the carrying on of business; (ii) the performing of acts of a mental nature only; or (iii) the playing of games; (c) methods for treatment of human beings or animals by surgery or therapy; (d) diagnostic methods practised on human beings or animals; (e) plant varieties, animal varieties and essentially biological processed for the production of plants other than microbiological processes and the products of those processes; or (f) an invention, the commercial exploitation of which would be contrary to public order or morality or which is prejudicial to human or animal health or to plant life or the environment. (2) Paragraphs (c) and (d) of subsection (1) do not extend to products invented for use in the methods referred to in those paragraphs." The exceptions contained in paragraphs (a) and (b) do not fall within the definition of patentable development as set out in Article 27.1 of the TRIPS Agreement. Paragraphs (c) to (f) were drafted in accordance with the provisions of Article 27.3 of the TRIPS Agreement. The text of the Patents Act 2001-18 has been notified to the World Trade Organization. Having regard to the foregoing Act, there is sui generis provision in the Protection of New Plant Varieties Act 2001-17 for new plant variety protection. The procedures for obtaining plant variety protection are specifically based on the UPOV Model Law for Small Developing Countries obtained through the World Intellectual Property Organization (WIPO). Other aspects have been modelled on the Trinidad & Tobago Protection of New Plant Varieties Act. The text of the Protection of New Plant Varieties Act 2001-17 has been notified to the World Trade Organization and is available for examination by Member states. Barbados is not a party to either of the UPOV Conventions.

Plant varieties in Ghana are to be protected by a sui generis system. In this regard a draft protection of Plant Varieties Act is to be laid before Parliament soon. The draft Plant Varieties Act was modelled on the 1978 UPOV Act. A new plant variety cannot be protected by patent.

All rights holders may seek redress for any infringement of their legal rights through civil proceedings in the Supreme Court as outlined in Barbados' response to question 1 of the Checklist of Issues on Enforcement. Further, please refer to our response to question 24 of the Checklist of Issues on Enforcement.1 This response reads as follows: It is an offence under section 48 of the Trade Marks Act, for a person to apply to goods or their packaging a trademark identical to or capable of being confused with a registered trademark. It is also an offence to sell or let for hire, offer or expose of sale or hire, or to distribute, goods that bear such an infringing trademark. Possession of such goods with the intent to do any of the acts mentioned above will also constitute an offence. It is an offence for a person to apply an infringing mark to goods without consent of the registered owner of the mark, with a view to enriching himself or causing loss to another. This applies to use of any item used in the reproduction of that infringing mark. It is also an offence to make an item that will enable a person to make copies of an infringing mark. Under section 49(1) of the Trade Marks Act it is an offence for a person to knowingly infringe any rights in a registered trademark vested in a person under the Act. The penalty for infringement under section 50 of the Act before a Court of summary jurisdiction is a fine of BD$10,000.00 or a term of imprisonment of two years, or both; in the case of a continuing offence, a further fine of BD$1,000.00 for each day the offence continues may be imposed. Under section 46 of the Copyright Act, the penalty for infringement for profit-making purposes by a person knowing or having reason to believe that he is committing an infringement, in summary conviction is a fine of BD$25,000.00 and/or to one year's imprisonment. The defendant convicted on indictment may receive a fine of BD$100,000 and/or three years imprisonment. Where there has been no decision on such remedies in civil proceedings, the Magistrate or Judge has the inherent jurisdiction to order the impounding of suspected copies of works on sound recordings, as well as the implements that could be used for the making of such copies; to order the forfeiture and seizure of all copies of works or sound recordings manufactured, reproduced, distributed, sold or otherwise use, intended for use or possessed with intent to use in contravention of the rights of the owner and all plates, moulds, masters, tapes, film negatives or other articles by means of which such copies of works or sound recordings may be reproduced and all electronic mechanical or other devices for manufacturing, reproducing or assembling such copies of works or sound recordings; to order the destruction or other reasonable disposition of infringing copies. Where an offence under section 46 committed by a body corporate is proved to have been committed with the consent or connivance or attributable to neglect on the part of any director, manager, secretary or person purporting to act in any capacity, he as well as the body corporate is guilty and liable to the above penalties. The court retains inherent jurisdiction to forfeit counterfeit goods on the application of a person under the section. On such forfeiture, the court can order the destruction of any such goods; or cause the offending sign to be erased or obliterated and make an order for costs.

Section 142 of the Barbados Copyright Act provides that: "(1) Subject to this section, the Minister may, by order, provide for reciprocal treatment to be given to any country that provides protection in respect of Barbados: (a) in relation to persons who are citizens or permanent residents of that country as they apply to persons who are citizens or permanent residents of Barbados; (b) in relation to bodies incorporated or established under the laws of that country as they apply in relation to bodies incorporated or established under the laws of Barbados; (c) in relation to literary, dramatic, musical or artistic works, sound recordings, films and editions first published in that country as they apply in relation to such work, sound recordings, films and editions first published in Barbados; (d) in relation to broadcasts made from or cable programmes sent from that country as they apply in relation to broadcasts made from or cable programmes sent from Barbados; (e) in relation: (i) to performances taking place in that country or given by an individual who is a citizen or habitual resident of that country; (ii) to performances incorporated in a phonogram which is protected by Article 5 of the Rome Convention; or (iii) to performances; not being fixed on a phonogram that are carried by a broadcast which is protected by Article 6 of the Rome Convention, as they apply in relation to performances taking place in Barbados or given by an individual who is a citizen or habitual resident of Barbados. (2) An order made under subsection (1) may apply any provision of this Act in relation to any country: (a) without exception or modification or subject to such exceptions and modifications as may be specified in the order; (b) generally or in relation to such classes of works or other classes of case as may be so specified. (3) An order shall not be made under subsection (1) in relation to any country unless: (a) the Country is a Convention country; or (b) a country as to which the Minister is satisfied that provision has been made or will be made under the law in respect of the class of works or, as the case may be, the performances, to which the order relates, giving adequate protection to the owner of copyright under this Act or, as the case may be, to Barbadian performances as defined in section 143(4). (4) In this section 'Convention country' means a country that is party to a Convention relating to copyright or performers rights, as the case may be, to which Barbados is also a party." In light of this section, the relevant Minister may enter into reciprocal agreements with other countries in order to make protective arrangements for copyrighted works created by non-Barbadians. At common law, Barbados treats all copyrighted work, whether indigenous or imported, as protected.

Draft legislation on various aspects of Intellectual property have been prepared and are soon to be laid before Parliament. The provisions in the draft legislation fully comply with the obligation under the TRIPS Agreement including the enforcement obligations under Articles 41-61.

Ghana is presently a Member of the Berne Convention, the Universal Copyright Convention, (UCC) and the TRIPS Agreement. Ghana has reciprocal obligations under the foregoing Convention to protect works of Ghanaian citizens in a like manner as protection is extended to works of citizens of the member countries to those conventions. This obligation is explicitly provided for under section 2(2)(iii) of the Copyright Law, Provisional National Defence Council ("PNDC") Law 110 of 1985.

The various intellectual property statutes of Barbados apply to the nationals of WTO Member states in the same manner as they apply to Barbadians. (a) Copyright Act, 1998 Section 8 and 142 (b) Patents Act, 2001-18 Section 21 (c) Protection of New Plant Varieties Act, 2001 Section 12 (d) Trade Marks Act, Cap. 319 Section 12 (e) Industrial Designs Act, Cap. 309A Section 16 (f) Integrated Circuits Act, 1998-21 Section 9

Such compliance is derived from the fact that the Copyright Act 1998 was drafted using the terms of the TRIPS Agreement and the Berne Convention for guidance. Barbados also complies with Article 6bis in its recognition of moral rights of an author in sections 14 and 15 of the Act.

Section 6(1) of the Act recognises Copyright as subsisting in original literary works. Section 2 of the Act defines "literary work" as inclusive of "a computer programme". This is further defined as: "…a set of instructions, whether expressed in words or as a schematic or other form, which is capable, when incorporated in a machine-readable medium, of causing an electronic or other device having information-processing capabilities to indicate, perform or achieve a particular function, task or result."