Examen de la législation d'application de l'Accord sur les ADPIC ‒ Recherche

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Aux termes de l'article 63:2 de l'Accord sur les ADPIC, les Membres doivent notifier les lois et réglementations qu'ils auront rendues exécutoires, et qui visent les questions faisant l'objet de l'Accord, au Conseil des ADPIC pour l'aider dans son examen du fonctionnement de l'Accord.

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Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Canada 1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and throughout) have been implemented.
Please see responses to the Checklist on Issues of Enforcement . The responses from Saint Kitts and Nevis to the Checklist of Issues on Enforcement are circulated in document IP/N/6/KNA/1.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Canada 2. What protection does your Copyright legislation afford to "foreign works"?
The legislation currently does not protect "foreign works". Protection of eligible works in SKN is limited to authors who are nationals or habitual residents of SKN or if it was first published in SKN (ss. 3 and 8 of SKN Copyright Act). In its ongoing legislative review the Government has already identified this provision as inconsistent with provisions of the TRIPS Agreement and will remedy this in the very near future since it is open to the Minister, under s. 145 to pass a statutory order that would declare that copyright protection extends to the works or authors of the countries that are Members of the Berne Convention, TRIPS or any other relevant international treaty on copyright and performers' rights to which SKN is a party. This approach would not require parliamentary intervention but a legislative amendment in parliament, though more onerous to achieve, is likely to carry a higher degree of practical prudence.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Canada 3. We understand that legislation on trademarks, patents and copyright have been passed by your Parliament, but that they are not yet in force. (a) When is such legislation likely to be effectively implemented? (b) What are the key improvements introduced by such legislation in respect of TRIPS obligations?
The Marks, Collective Marks and Trade Names Act came into force on 28th July 2000. The Copyright Act and Patents Act came into force on 1 June 2002. Notifications of all legislation related to IPRs have been sent to the WTO and WIPO. Trademarks The prior legislation was passed in 1887 and whilst adequate at the time, did not have the benefit of the application of contemporary standards. There was no definition of a "mark" and the aspect of a mark being refused as being indistinguishable from the goods or services of one enterprise from that of another was not adequately captured. The eligibility of certain trade names has been expanded and clarified in the existing legislation. Greater specificity on infringement and offences generally under the Act has been included in the new Act. Recognition and distinction of well- known marks is provided for in the existing legislation as well as the applicability of the Nice Agreement and the Paris Convention for the Protection of Industrial Property. Patents The previous Patents Act dated from 1906. This earlier legislation failed to provide adequately for the protection of the product as opposed to the process. The patent had a maximum duration of fourteen years and more contemporary considerations such as the applicability of the Patent Cooperation Treaty were not taken account of. The prior Act failed to provide appropriately for the concept of novelty of invention and was overall very thin on procedural aspects. The various aspects and nuances of infringement were not comprehensively dealt with. All of these areas have since been remedied by the existing Patents Act. Copyright The previous legislation in this area was the Copyright Act Chapter 336 of 1919. In addition, the 1956 U.K. Act was largely applicable within the then colony (Saint Kitts and Nevis became an independent nation in 1983). The 1919 Act consisted of three sections which therefore demonstrates how extremely limited it was in scope and how ineffectual it would be in this current regime. The previous legislation created an offence for the infringement of a copyrighted work, however the kinds of work that was contemplated, the extent of the protection, the actual remedies for infringement – outside of the criminal penalty, were not provided for. The current legislation sets out a wide range of concerns in comprehensive detail, including protection for works in electronic form, licensing schemes and licensing bodies, recognizing through the creation of exceptions, the need to balance the exclusive rights of the owner against the rights of the State and certain public purposes that derive therefrom. Some of these rights include fair dealing with a performance or recording for the purpose of criticism or review or reporting on current events, parliamentary proceedings, library use and the playing of certain types of recording for charitable purposes.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Canada 4. We understand that legislation on geographical indications, protection of plant varieties, and protection of integrated circuit topographies is being drafted. (a) What protection is currently afforded to geographical indications, protection of plant varieties, and protection of integrated circuit topographies, and how does such protection accord with TRIPS obligations? (b) When is such legislation likely to be effectively implemented? (c) What are the key improvements introduced by such legislation in respect of TRIPS obligations?
The Protection of Layout-Designs (Topographies) of Integrated Circuits Act was passed and came into force on 5th November 2007. Legislation on the protection of plant varieties has not yet been passed but a draft bill has been circulated to key stakeholders for their comments and recommendations. The Geographical Indications Act was passed in 2007 and came into effect on 1st November 2016. Geographical indications in the strictest sense were not protected prior to this legislation but collective marks are protectable under the trademark legislation. In keeping with Arts. 22 to 24 of the TRIPS provisions on geographical indications, the Act provides protection • to an indication which identifies any goods 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 particular goods is essentially attributable to its geographical indication; (section 2) • to a geographical indication even if it has not been registered, however registration of a GI offers a higher level of protection; (section 3) • Against a geographical indication which gives a false representation to the public that the goods originate in another territory than the one it actually derives from. This provision shall be enforceable even if the GI is literally true as to the territory, region or locality in which the goods originate; (section 3) and • in respect of homonymous geographical indications for wines, protection shall be given to each indication. Where necessary, the Registrar shall determine practical conditions for differentiating homonymous indications from each other. The Registrar shall be guided in such cases by the need to ensure equitable treatment of the producers concerned and to ensure that consumers are not misled. The right of use of a geographical indication shall be restricted to a producer carrying on activity in the geographical area specified in the Register, in the course of trade and only in respect of the products specified in the Register where such products possess the quality, reputation or other characteristic set out in the Register. Under section 12 of the Act, the level of protection extends to the possibility of • invalidating the registration of a GI on the ground that the GI does not qualify for protection, • rectifying the registration of a GI on the ground that, • the geographical area specified in the registration does not correspond to the geographical indication, and • the indication of the products for which the geographical indication is used or the indication of the quality, reputation or other characteristic of such products is missing or unsatisfactory. Section 13 allows proceedings to prevent the unlawful use of geographical indications or to prevent a use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention. The Registrar also has power to refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in Saint Kitts and Nevis is of such a nature as to mislead the public as to the true place or origin of such goods (s. 14). The Registrar additionally has power to invalidate or refuse a mark that conflicts with a GI for wines and spirits.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 1. Please describe, in relation to each form of intellectual property covered by the TRIPS Agreement, including plant variety protection, the manner in which nation treatment and most favoured nation treatment are provided to nationals of other WTO Members.
Work is being done to draft or pass legislation for plant variety protection and undisclosed information in Saint Kitts and Nevis. For patents, the law expressly provides that an applicant may apply for a declaration claiming priority of one or more earlier national, regional or international applications filed in a country or State that is party to the Paris Convention or any member of the WTO (s.20). A similar provision exists in the trademark legislation (s. 20).
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 2. Please explain how the copyright law of Saint Kitts and Nevis protects computer programs as literary works and complications of data as required by Article 10 of the TRIPS Agreement.
The definition of literary works in s. 2(1) expressly includes computer programmes. Section 6(2) provides that compilations of data are also eligible for protection as a literary work
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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).
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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).
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis États-Unis d'Amérique 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)].
10/08/2017

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