Protecting your Intellectual Property in the Caribbean

Have a great idea? How do you protect it? Here are five considerations when embarking on or exploring Intellectual Property protection.

Consider this: Your latest creation promises to be the best thing since sliced bread. You know it is valuable, but you are nervous that it could be stolen…

This is scenario that gets played out frequently among creators and innovators, particularly in the Caribbean, who are not familiar or comfortable with the processes to protect their Intellectual Property (IP). As discussed in Can a mutually beneficial relationship exist between IP and IT?, and according to the World Intellectual Property Organisation (WIPO), IP refers to “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce…”

Recognised IP owners enjoy a set of exclusive rights for their creations or works, the terms of which are usually set out in local law. However, many of our small business owners, entrepreneurs and innovators might still be unaware of what those rights are, and perhaps also a bit skeptical about whether the process and requirements are worth it. To a considerable degree both of those concerns can be addressed by learning more about the IP framework in your country. This post offers some key considerations when broaching this subject.

Visit your local IP office

Across the countries of the Caribbean region, there would be differences in the requirements and provisions associated with IP. Depending on the country, up to four types of IP that can be protected (Table 1).

Table 1: Key types of Intellectual Property (Source: United States Patent and Trademark Office)

Furthermore, countries might be signatories to different IP-related treaties, agreements and protocols, and could be at differing stages of adherence to those arrangements. Hence it is critical to understand the framework and procedures that govern your country. Listed below are key IP offices in the Caribbean, which should help you to take that first step:

• Antigua and Barbuda Intellectual Property & Commerce Office (ABIPCO)
• Registrar General’s Department – Bahamas
• Corporate Affairs and Intellectual Property Office (CAIPO) – Barbados
• Belize Intellectual Property Office (BELIPO)
• Companies and Intellectual Property Office – Dominica
• National Copyright Office (ONDA) – Dominican Republic
• Corporate Affairs and Intellectual Property – Grenada
• The Deeds Registry – Guyana
• Haitian Copyright Office
• Intellectual Property Service – Haiti
• Jamaica Intellectual Property Office 
• The Registrar of the Supreme Court – Saint Kitts and Nevis
• Registry of Companies and Intellectual Property – Saint Lucia
• Commerce and Intellectual Property Office – Saint Vincent and the Grenadines
• Bureau of Intellectual Property – Suriname
• Intellectual Property Office – Trinidad and Tobago

Be clear about what might be worth protecting

It is important to highlight that an “idea”, i.e. a thought or concept still in your mind, cannot be protected. What is eligible for protection is the manifestation of that idea/thought, as outlined in Table 1. Hence write down in detail your idea, what it does, and how it works, and as appropriate, include detailed pictures, drawings, schematics and/or photographs.

To be clear: in order to be eligible for IP protection your creation ought to be unique. In the case of patents especially, the finished product might not necessarily be unique, but the process, design, or some other aspect, ought to be original. Most IP offices offer some assistance in determining what exactly in your creation could be eligible for IP protection. Furthermore, as part of the registration process, the office usually conducts a search of other registered products or concepts to ensure that you are not infringing upon anyone else’s IP and rights.

Keep your works secret

Although it might go without saying, in the absence of formal IP protection, it is important to keep idea or concept a secret. However, in doing so, your efforts to secure assistance can be severely hampered by not sharing enough about your idea to allow prospective supporters to make informed decisions.

A popular option, which is widely encouraged, is the use of confidentiality or non-disclosure agreements, which prohibit persons from sharing r otherwise using proprietary or confidential information. Legal assistance should be sought in preparing such agreements, and they ought to be duly signed before any in depth discussions are held.

A word about non disclosure agreements…

Having encouraged the use of non-disclosure agreements it is important to highlight that persons with whom you might wish to do business with, might be reluctant to sign such an agreement from the very outset. Frequently, prospective partners are being asked to sign confidentiality agreements without any insight into the context:

…I have an idea, but in order to hear more, you must sign an NDA…

Under such circumstances, balance might be the key, since typically, the overarching idea might not necessarily be unique: the original elements might be certain aspects of the process, which indeed ought to be protected. However, it means you need to understand what exactly is unique about your idea (or what you are proposing), in order to make a clearer determination of what can and ought not be shared.

Consider IP registration in other jurisdictions

Finally, no Caribbean/Caricom countries is a signatory to the Madrid System for the International Registration of Marks, most commonly referred to as the Madrid Protocol. Under this system, ‘a trademark owner the possibility to have his trademark protected in several countries by simply filing one application directly with his own national or regional trademark office’ (Source: WIPO). For countries that have not acceded to this arrangement, their trademark owners must register their trademarks in each individual jurisdiction in which they would like protection..

With regard to patents, copyrights and trade secrets, any IP protection granted tends to be limited to the country in which they are registered. Depending on the potential of your idea internationally, along with the collapsing geographical boundaries of technology, it might be prudent to consider the merits of protecting your ideas and works in other countries as well. Admittedly, registration processes could be costly and protracted, so having to do it more than once, especially for a startup or small business, can be a severe strain on resources. Hence careful scrutiny is necessary, and as appropriate, a strategy devised.

Image credits:  MR LIGHTMAN (FreeDigitalPhotos.net); Stuart Miles (FreeDigitalPhotos.net) 

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