No replies have been received to questions 2 to 9 above. As yet, no legislation consistent with the TRIPS Agreement has been adopted in this area.

No replies have been received to questions 2 to 9 above. As yet, no legislation consistent with the TRIPS Agreement has been adopted in this area.

No replies have been received to questions 2 to 9 above. As yet, no legislation consistent with the TRIPS Agreement has been adopted in this area.

Distinctive sign: "Any sign which constitutes a trademark, a trade name, a company emblem, the title of an establishment or a commercial logo." Trademark: "Any sign or combination of signs that serves to distinguish products or services from similar products and services in the market." Article 3.1 of Decree-Law No. 203 stipulates that the following may constitute trademarks: (a) Denominative signs such as letters, words, figures and any combinations thereof; (b) figurative signs such as images, figures, drawings, symbols and graphics as well as the colour, provided it is defined by a given form, and combinations of colours; (c) mixed signs made up of a combination of denominative and figurative signs; (d) three-dimensional shapes, provided they can be delimited from the product, including wrappers, packaging, the shape of the product or the way it is presented; (e) smells; (f) sounds and combinations of sounds. The names of specific persons may constitute denominative signs, subject to authorization in the form of a public document, and provided it does not involve deception or confusion of the public. In principle, distinctive signs are protectable as long as they are not covered by any of the absolute or relative prohibitions established in Articles 16.1 and 17.1 of Decree-Law 203. In a general sense, they must have the capacity to distinguish per se and in respect of the rights of third parties.

Services can be distinguished by protectable distinctive signs under Articles 2 and 45 of Decree-Law 203. Trade names and three-dimensional shapes are also protectable provided they can be distinguished from the product: these include wrappings, packaging, the shape of the product and the way it is presented as well as sound and olfactory marks (Article 3(d), (e) and (f) of Decree-law 203). However, as established in Article 2(a) with respect to Article 3.1(e) and (f), the registration of sound and olfactory marks is subject to a ruling by the Minister of Science and Technology and the Environment until such time as the necessary conditions for their registration have been established in accordance with the Second Final Provision of the said Decree-Law.

There are no requirements of use as a condition for a trademark registration. However, in order to maintain the registration of a mark and ensure that it is not revoked, ex officio or by petition, real and effective use is a requirement under Article 64, which stipulates that: "Trademarks shall be revoked when: (a) The period of validity expires without their having been renewed; and (b) the owner has not made real or effective use of the trademark in the national territory during three consecutive years following the date on which it was granted and during its validity, or when such use has been interrupted for the same amount of time prior to the action for revocation." Article 65.1, for its part, states that "when the use of a mark begins after the period mentioned in indent (b) of the previous article has elapsed, such use shall only prevent the registration from being revoked if it has begun at least three months prior to the date on which the petition for revocation was filed." Similarly, Article 53.1 of Decree-Law 203 states that: "The trademark shall be considered to be in use when the products or services that it distinguishes have been offered for sale, through channels of distribution or commerce, or are available to the end user within the national territory under that trademark, continuously, in the usual quantity and form, bearing in mind the size of the market, the nature of the products or services concerned and the conditions under which they are marketed. The definition of the use of a trademark shall also include: (a) Utilization in respect of products intended for export from the national territory or in respect of services offered abroad from the national territory; and (b) utilization in advertising, even when such utilization precedes the introduction into the market of the products or services in question, provided such introduction actually takes place no later than two months following the launching of the advertising campaign." Article 54 of the said Decree-Law states that: "A trademark shall be considered to be in use when it corresponds to the trademark registered in the Office. However, the use of the trademark in a form different from that in which it was registered only with respect to details or features that are not essential and do not alter its identity shall not constitute grounds for revocation of registration for non-use, nor shall it lessen the protection afforded". Use by the licensee shall be treated in the same way as use by the owner (Article 65.3). When the non-use of a trademark is lawfully justified in the eyes of the Office, revocation shall not be declared ex officio or by petition once the opinion of the owner has been heard (Article 66).

Under our legislation, the initial duration is ten years from the date of the submission of the application. It is indefinitely renewable by successive periods of ten years at the request of the owner and subject to payment of the established fee (see Article 48 and 49.1 of Decree-Law 203). The procedure for the renewal of a registration is regulated by Articles 81-84 of the Regulations to the said Decree-Law, made operational by Resolution No. 63 of the Ministry of Science, Technology and the Environment.

Title III (Administrative Procedure before the Office), Chapter II (Processing), Section Five (Procedure for the Declaration of Nullity, Cancellation and Revocation of Registrations) of the Regulations to Decree-Law 203 on trademarks lays down the rules governing this process before the Office. Under Article 54 of the said Decree-Law, a trademark is considered to be in use when it corresponds to the trademark registered in the Office. However, the article goes on to state that the use of a trademark in a form different from that in which it was registered only with respect to details or features that are not essential and do not alter its identity shall not constitute grounds for revocation of registration for non-use, nor shall it lessen the protection afforded. Finally, Article 63.2 of the said Decree-Law, stipulates that: "In a revocation procedure for non-use, it is up to the owner to prove the use of the trademark."

The trademark registration authority, the Cuban Industrial Property Office, may refuse a trademark application, given that the regulatory provision on this industrial property measure establishes, as an absolute prohibition on trademark registration, that a sign composed exclusively of indications used in trade to designate the geographical origin of a product or service may not be registered as a trademark. This provision also states, as a relative prohibition, that a sign which contains or consists of a geographical indication protected in Cuba, and which applies to the same products, different products or services, may not be registered as a trademark if its use would result in the likelihood of mistaken association with the protected indication or would involve unfair exploitation of its reputation and renown. Finally, Article 63.2 of the said Decree-Law, stipulates that: "In a revocation procedure for non-use, it is up to the owner to prove the use of the trademark."

The existing regulatory provision defines geographical indications as those which identify a good as originating in a country, region or locality when a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. Finally, Article 63.2 of the said Decree-Law, stipulates that: "In a revocation procedure for non-use, it is up to the owner to prove the use of the trademark."

Cuban legislation, both in its definition of geographical indications and in the concept of "appellation of origin" therein, provides for the double link between the geographical name used as a denomination and the product identified by the sign; in this respect, it establishes that the appellation of origin is the geographical denomination or another sign relating to a country, region or locality used to designate a product which originates therein, when a given quality, reputation or other characteristic is essentially attributable to its geographical origin, including natural and human factors.

The regulatory provision grants the additional protection established in Article 23 of the TRIPS Agreement for wines and spirits to all products.

The regulatory provision incorporates the exceptions provided for in Article 24.4 and 24.5 of the TRIPS Agreement. No such cases have been heard in our courts. We are unaware of the existence of lists containing generic names.

Decree Law No. 290 of 20 November 2011 on inventions and industrial designs and models, which entered into force on 2 February 2012, regulates the protection of industrial designs and models on the basis of aesthetic or ornamental considerations unrelated to technical or functional considerations. Articles 91 and 92, respectively, provide definitions for both types of creation. An industrial design consists of any plane element or combination of plane elements, of an aesthetic or ornamental nature, such as shapes, colours, patterns or textures, whether or not in relief, which, when incorporated into an industrial or artisanal product, gives that product a special appearance that distinguishes it from similar products and may serve as a prototype for its industrial or artisanal manufacture. An industrial model is any industrial or artisanal volumetric product, or parts thereof, the shape, configuration, texture or material, or combination thereof, of which gives it a special appearance of an ornamental or aesthetic nature that distinguishes it from similar products and may serve as an industrial or artisanal prototype. Textile designs are protected in the same way as industrial designs, while the aesthetic or ornamental aspects of textile models are protected in the same way as those of industrial models. If, however, the model responds to technical or functional considerations, it is protected in the same way as an invention.

Article 108 of Decree Law No. 290 establishes the rights conferred by registration and the Industrial Design or Industrial Model Registration Certificate. Registration confers upon holders the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design or model which is a copy, or substantially a copy, of the protected design or model, when such acts are undertaken for commercial purposes. The right of an industrial design or model registration holder extends to any other design or model that does not give an informed person a different general impression. The rights conferred by registration do not extend (Article 109) to acts performed exclusively for the purposes of teaching or in a private environment and for non commercial purposes. The rights of the registration holder do not extend to acts performed by a third party in relation to the registered design or model, after that design or model has been placed on the market in any territory by the holder or by another person with the consent of or with economic ties to that holder.

Compulsory licences are not granted for industrial designs or models.

Article 112 establishes that the registration of an industrial design is valid for ten years from the date when the application is filed. Annual payments are made to maintain the protection (Article 113). The rights conferred may be exercised from the moment of registration (Article 117, Article 44).

Article 21.1. An invention eligible for patent protection shall be understood to mean any technical solution, in any technological field, which is novel, inventive and industrially applicable. Article 23.1. An invention is new if, on the recognized priority date, it is not included in the prior art. Article 23.2. Prior art shall be understood to mean everything that is or has been made available to the public anywhere in the world, in written or verbal form or through use, sale, marketing or display or by any other means, including the traditional knowledge of indigenous or local communities. Article 23.3. For the purposes of determining novelty, the contents of a utility model patent or registration application pending before the Office and having a priority date earlier than the priority date of the patent or registration application under examination shall also be considered part of prior art, provided that the said contents have been or will be published. Article 23.4. The disclosure of an invention shall not imply the absence of novelty if it has taken place as an unlawful act against the applicant or owner. Article 25. An invention shall be considered industrially applicable when its subject-matter can be reproduced or used in any industry, industry being understood in the broad sense of the term.

Non patentable objects of invention and objects not considered to be inventions are listed in Articles 22 and 21 of the legislation, respectively. Pursuant to Article 22, the following are not patentable: (a) Animals and animal breeds; (b) plants and plant varieties; (c) methods for the treatment of the human or animal body; (d) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (e) solutions, the prevention within the country of the commercial exploitation of which is necessary to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by domestic legislation; (f) solutions, the prevention within the country of the commercial exploitation of which is necessary to protect social interests, ordre public and morality; (g) the cloning of human beings, organs and tissues, or parts and elements thereof; (h) processes for modifying the germinal genetic identity of human beings; (i) uses of human embryos for industrial or commercial purposes; (j) processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes. Pursuant to Article 21.3, the following are not considered to be inventions: (a) Plans, methods and rules for performing intellectual, sporting, recreational, economic and commercial activities; (b) construction projects, diagrams and plans; (c) discoveries recognizing laws, phenomena or properties of the material universe; (d) material existing in nature, whether discovered or isolated, including biological and genetic material, and parts, substances and replicas thereof, excluding the microorganisms defined in Article 21.4; (e) principles and scientific theories; (f) mathematical methods; (g) methods of presenting information; (h) layout designs of integrated circuits; (i) computer programs, scientific, artistic and literary works and aesthetic creations; (j) essentially biological procedures; (k) the human body, at the various stages of its formation and development, the discovery of any of its elements or parts, and replicas, including the sequence or partial sequence of a gene and its genetic identity, despite having been obtained by means of a technical process; (l) patented products and procedures included in the prior art, merely because they have been put to a use different from that contemplated by the initial patent; (m) those contradicting the scientific principles and laws governing scientifically established phenomena and properties; (n) any change in the form, dimensions, proportions or material of an object unless essentially modifying the properties thereof; (o) juxtapositions of known inventions and mixtures of known products and variations in their use, shape, dimensions or materials, unless they are combined or fused so that their characteristic qualities or functions are modified to obtain a new industrial result that cannot be derived from the separate application of the juxtaposed inventions; (p) uses of products and procedures; (q) products and procedures based on use.

Article 22. The following shall not be patentable: (f) solutions, the prevention within the country of the commercial exploitation of which is necessary to protect social interests, ordre public and morality. It has not been applied in practice.