Examen de la legislación de aplicación del Acuerdo sobre los ADPIC - Búsqueda

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En el párrafo 2 del artículo 63 del Acuerdo sobre los ADPIC, se exige a los Miembros que notifiquen al Consejo de los ADPIC las leyes y los reglamentos hechos efectivos por el Miembro en cuestión y referentes a la materia del Acuerdo, con el fin de ayudar al Consejo en su examen de la aplicación del Acuerdo.

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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 3. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and cinematographic works be available. Please cite to the corresponding provision of the copyright law of Saint Kitts and Nevis.
Section 3(2) of the Act provides that references to the issue of copies of a work in relation to sound recordings, films and computer programs, includes the act of issuing copies to the public by rental. The exclusive right to issue copies of work to the public is provided for in s. 9(1)(b). Section 78 also provides that the Minister may pass an Order to have compulsory licenses issued in specified circumstances to allow the public to rent sound recordings, films or computer programs.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 4. Please describe the protection the copyright law of Saint Kitts and Nevis provides for performers, and the term of the protection.
Section 108(1)(a) provides that a performer shall have the exclusive right to prevent any person from exploiting his or her performance. Such rights are infringed where a person, without the performer's consent, broadcasts live, includes in a cable programme or makes (otherwise than for his or her private domestic use) a record of the whole or any substantial part of a performance (s.109). Term of protection for performances is 50 years after the end of the calendar year of the performance (s. 10).
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 5. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. Article 14.2 requires that producers of phonograms are to have the right to authorize or prohibit the commercial rental to the public of originals or copies of their phonograms. Please describe how the copyright law of Saint Kitts and Nevis implements these obligations and indicate the term of protection.
Section 6 of the Act confers copyright on original sound recordings. The producer of that sound recording has the exclusive right, under s. 9, to do or authorize other persons to, inter alia copy and issue copies of the work to the public. Section 3(3) further elaborates that references to "issuing copies" in relation to sound recordings, films and computer programs means the act of issuing copies to the public by rental. The term protection, according to s. 11, is fifty years from the end of the calendar year in which it was made or where it is made available to the public before the end of that period, fifty years from the end of the calendar year in which it was so made available.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 6. Please describe the subject matter that can comprise a trademark under the trademark law of Saint Kitts and Nevis.
Under the Marks, Collective Marks and Trade Names Act, any visible sign capable of distinguishing goods and services can be registered as a trademark or service mark, respectively.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 7. Please describe the procedure that must be followed to register a trademark in Saint Kitts and Nevis, citing the relevant provisions of the law, and describe the rights that the owner of a registered mark can exercise.
Section 5 provides that an application for the registration of a mark shall be filed with the Registrar on the prescribed form and shall contain the following: (a) a request that the mark be registered; (b) a reproduction of the mark; and (c) a list of the goods or services for which registration of the mark is requested, listed under the applicable class or classes of the International Classification. The application shall be accompanied by the prescribed application fee. The application may contain a declaration claiming the priority, as provided for in the Paris Convention, of an earlier national or regional application filed by the applicant or his or her predecessor in title in or for any State party to the Convention or any member of the World Trade Organisation, in which case the Registrar may require that the applicant furnishes, within the prescribed time limit, a copy of the earlier application, certified as correct by the Office with which it was filed. The effect of the declaration shall be as provided in the Paris Convention. Where the requirements of subsection (3) of this section and any regulations pertaining to that subsection have not been satisfied, the declaration shall be considered not to have been made. The applicant may withdraw the application at any time before the mark is registered.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 8. Please describe in detail how well-known trademarks are protected in Saint Kitts and Nevis, including what factors are considered in determining whether a trademark is well-known.
Under s. 4(e) of the Act, a well-known trademark is protected to the extent that a prospective trademark would not be registered if it is identical to, confusingly similar or constitutes a translation of a well-known trade mark in Saint Kitts and Nevis for identical or similar goods or services of another enterprise. If the well-known mark is registered in Saint Kitts and Nevis, the prospective trademark would not be registered even if the goods and services are not identical or similar provided that 1. the use of the prospective mark in relation to those goods and services would indicate a connection between the goods or services and the owner of the well-known trademarks;and 2. the interests of the owner of the well-known mark are likely to be prejudiced by such use.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 9. Please describe in detail how the laws of Saint Kitts and Nevis provide for the recognition and protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing to the relevant provisions of law or regulation, and provide examples of geographical indications so protected.
Through s. 13 of the Geographical Indications Act, an interested person may institute proceedings in the High Court to prevent the unlawful use of a geographical indication and any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention. There are no registered geographical indications in Saint Kitts and Nevis.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 10. Please describe in detail the manner in which the higher level of protection required for wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the relevant provisions of law or regulation, and provide examples of geographical indications for such products.
In accordance with TRIPS Art. 23.2, s. 13 also enables an interested person to initiate court proceedings where a geographical indication is used on a wine or spirit that does not originate in the place indicated by the GI. This protection extends even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. There are no registered geographical indications in Saint Kitts and Nevis.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 11. Please describe the procedure that must be followed to obtain protection for textile designs and cite to the relevant provisions of law or regulation.
There is no legislation on industrial designs in Saint Kitts and Nevis but depending on the nature of the design, it may qualify for copyright protection as an artistic work.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 12. Please describe the procedure that must be followed to obtain protection for textile designs and cite to the relevant provisions of law or regulation.
Provided that the textile design qualifies as a new invention that involves an inventive step and that design invention is capable of industrial application, the inventor can apply for a patent through conventional application procedure i.e. by an application to the Registrar.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 13. Please describe in detail the way in which the patent law of Saint Kitts and Nevis implements Article 27 of the TRIPS Agreement, indicating any exceptions to patentability provided for, and including details regarding the protection for micro-organisms and non-biological and microbiological processes and plant varieties. Please cite to the relevant provisions of law.
Section 8 of the Patents Act provides that a patent can be granted for an invention that is new, involves an inventive step and is capable of industrial application. The invention may be or relate to a product or process. However, s. 10 provides that even if there are inventions that fall within those boundaries, they would be excluded from patentability if the commercial exploitation of such inventions are contrary to public order or morality, prejudicial to human, animal or plant life or health or prejudicial to the environment. Additionally, inventions that consist of the following cannot be patented, that is: (a) discovery, scientific theory or mathematical method; (b) a scheme, rule or method for doing business, performing a mental act of playing a game; and (c) methods for the treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practised on the human or animal body (this does not apply to products for use in any of the methods specified above).
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 14. Please describe in detail the rights provided patent holders under the patent law of Saint Kitts and Nevis and cite to the relevant provisions of law.
By virtue of s. 32 of the Patents Act, no person, other than the patentee, shall exploit a patented invention in Saint Kitts and Nevis without the patentee's authority. An action can be brought in the High Court against any person who exploits the invention without authority. The law expressly provides that "exploiting" a patented invention means: (a) where the patent is granted in respect of a product, i. making, importing, offering for sale, selling, and using it into Saint Christopher and Nevis; and ii. stocking the product for the purpose of offering it for sale or selling, or using it; and (b) where the patent is granted in respect of a process, i. using the process; and ii. doing any act referred to in paragraph (a) in respect of a product obtained by means of that process. Section 32(5) further provides that the rights in a patent shall not extend to: (a) acts in respect of articles put on the market in Saint Kitts and Nevis by the patentee or with his or her consent; (b) the use of articles on an aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Saint Kitts and Nevis; (c) acts done only for experimental purposes relating to a patented invention; (d) the extemporaneous preparation for individual cases, in a pharmacy, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared; or (e) acts performed by any person who was, in good faith, while in Saint Kitts and Nevis, before the filing date or where priority is claimed, the priority date of the application on which the patent is granted, using the invention or making effective and serious preparation for such use.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 15. Please describe in detail any provisions in the laws of Saint Kitts and Nevis permitting unauthorized use of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which such use can occur.
Section 34 provides that the Minister may decide that, even without the agreement of the owner of the patent, that a Government agency or a third person designated by the Ministry may exploit the invention where (a) the public interest, in particular, National Security, Nutrition, Health, or the development of other vital sectors of the national economy so requires; or (b) the Minister has determined that the manner of exploitation, by the owner of the patent or his or her licensee, is anti-competitive, and he or she is satisfied that the exploitation of the invention in accordance with this subsection would remedy such practice. The exploitation of the patented invention shall be limited to the purpose for which it was authorised and shall be subject to the payment to the said owner of an adequate remuneration therefor, taking into account the economic value of the Minister's authorisation, as determined in the said decision, and, where a decision has been taken under subsection (b) above, the need to correct anti-competitive practices. Before deciding to issue a compulsory license, the Minister shall hear the owner of the patent and any interested person. A request for the Minister's authorization to exploit a patented invention must be prefaced by a request to the patent holder for a contractual licence. It must be shown that that person was unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time. The requirement to obtain the right holder's permission can be waived in cases of public non-commercial use, anti-competitive practices and circumstances of national or extreme urgency (patent owner should be notified by the Minister as soon as is reasonably practicable in the latter case). Additionally, under s. 37 of the Act, the Court may grant a non-voluntary licence. At any time after four years has passed since the date of the grant or three years from the date of filing (whichever later) an interested person may apply to the Court for such a licence on the grounds that the patented invention is not being exploited or is being insufficiently exploited by working the invention within the Federation or by importation thereinto. Where the Court is satisfied that such non-exploitation or insufficient exploitation has not been justified, it will grant the non-voluntary licence. The Court is then bound to fix the scope and function of the licence, the time limit within which the licensee must begin to exploit the patented invention and the amount and conditions of the remuneration to be paid to the patentee.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 16. What term of protection does the patent law of Saint Kitts and Nevis provide for patents? Please describe any provisions for extension of the term of protection and cite to the relevant provisions of the law.
A patent expires twenty years after the filing date of the application [s. 27(1)].
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 17. Please describe in detail the protection for layout-designs of integrated circuits provided under the laws of Saint Kitts and Nevis, including the term of protection, and cite to the relevant provisions of law.
Under s. 6 of the Protection of Layout Designs (topographies) of Integrated Circuits Act makes it unlawful to perform certain acts without the authorisation of the right holder. This includes: (a) the reproduction, whether by incorporation in an integrated circuit or otherwise, of the protected layout-design in its entirety or any part thereof, except the reproduction of any part that does not comply with the requirement of originality defined in section 4; (b) the importation, sale or other distribution, for commercial purposes, of the protected layout-design, an integrated circuit in which the protected layout-design is incorporated, or an article incorporating such an integrated circuit in so far as it continues to contain an unlawfully reproduced layout-design. Where an infringement has occurred it is open to the right holder to apply to the Court for relief including an injunction, damages, an order for the seizure, forfeiture or destruction of the infringing goods or any other remedy provided for in law. Section 7 provides that the term of protection is for ten years after the date of commencement. Protection commences: (a) on the date of the first commercial exploitation, anywhere in the world, of the layout-design by, or with the consent of, the right holder, provided that an application for protection is filed by the right holder with the Registrar within the time limit referred to in section 8(3); or (b) on the filing date accorded the application for the registration of the layout-design filed by the right holder if the layout-design has not been previously exploited commercially anywhere in the world.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 18. Please describe in detail how the laws of Saint Kitts and Nevis provide for the protection of undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide citations to the relevant provisions of law.
There is currently no legislation dealing with undisclosed information therefore no further response can be given to questions 17 to 19.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 19. Please describe in detail the manner in which protection is provided test data regarding pharmaceutical and agricultural chemical products submitted to the government in order to obtain marketing approval in Saint Kitts and Nevis and cite to the relevant provisions of law.
There is currently no legislation dealing with undisclosed information therefore no further response can be given to questions 17 to 19.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 20. Are other applicants for marketing approval for their own versions of previously approved pharmaceutical or agricultural chemical products permitted to rely on data submitted by the earlier applicant? If so, how long a period of exclusivity is given the earlier applicant before such reliance becomes possible.
There is currently no legislation dealing with undisclosed information therefore no further response can be given to questions 17 to 19.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 21. Please describe in detail the manner in which the laws of Saint Kitts and Nevis provide for effective action against infringement of intellectual property rights as required by Article 41.1 of the TRIPS Agreement.
Please refer to the responses to the Checklist on Issues of Enforcement.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 22. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production of evidence necessary to substantiate a party's claims where that party has been unable to obtain such evidence from the opposing party. Please describe how the laws or regulations of Saint Kitts and Nevis provide this authorization, citing to the relevant provisions of law or regulation.
Please refer to the responses to the Checklist on Issues of Enforcement.
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