Protecting your Tangible and Intangible Property

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REGISTERING A BUSINESS: HOW DOES IT WORK?

The complexities often associated with running a business does not compare (or pales in comparison) to the simplicity of getting the business registered. In Antigua and Barbuda, registering a business comes with only a few simple steps, the first of which is selecting a business name and the services connected to the business. After you have figured out what will be the name of your business and the services you wish to provide under that business name, the other formal steps are as follows:

1. Filling out the Business Name Registration Form

To get started, the business name registration form must be filled out at the Intellectual Property and Commerce Office. This requires picture identification and the payment of a registration and processing fee.

2. Obtaining your Business Name Registration Certificate

After the registration form has been submitted and processed, a Business Name Registration Certificate and a Statement of Particulars of the business, will then be ready for collection within 5 to 7 business days at the Intellectual Property and Commerce Office.

3. Registering your Business for tax deductions

The integrity of your business hinges upon its payment of taxes. Once you have registered your business and have obtained your Business Name Registration Certificate and Statement of Particulars, the final step is to register with the Inland Revenue Department, Social Security, Medical Benefit and the Board of Education.

WHAT ARE THE BENEFITS OF REGISTERING YOUR BUSINESS? 

1. One of the benefits associated with obtaining a Business Name Registration Certificate is securing the name of your Business. A business name will only be registered if it is clear and free from previous registration by someone else. As long as your business name has been registered, it is yours and cannot be duplicated.

2. Registering your business not only gives you physical evidence of ownership, but also borrowing power. When applying for a business loan, financial institutions usually require tangible proof of the existence of your business, in addition to a business plan. The Business Name Registration Certificate and Statement of Particulars are evidence of the existence and ownership of the business.

3. Concessions are another benefits attached to registering a business. A business owner has the privilege of applying to the Antigua and Barbuda Investment Authority (ABIA) for concessionary benefits such as: exemption from or reduction of payment of duty under the Customs Duty Act on the importation or purchase of products such as raw materials, building materials, appliances and the like; the importation of vehicles for the use in the operation of the business; a reduction in property tax for property used in the operation of the business; exemption or reduction of payment of income tax and stamp duty.

INTELLECTUAL PROPERTY

WHAT IS INTELLECTUAL PROPERTY?

According to the Black’s Law Dictionary, intellectually property is “a category of intangible rights protecting commercially valuable products of the human intellect. The category comprises primarily trademark, copyright, and patent rights, but also includes trade secret rights, publicity rights, moral rights, and rights against unfair competition.” Simply put, intellectual properties are creations of the human mind, which are usually expressed into a physical form of ownership.  Intellectual property law affords us the opportunity to put our stamp of ownership on the creative outputs of our mind and the physical manifestation of those creations.

WHAT ARE TRADEMARKS?

A trademark is any word, name or symbol or any combination of a word, name and symbol, used for business purposes to identify and distinguish the goods or products of one person from those of someone else.

WHY ARE TRADEMARKS IMPORTANT? 

A trademark gives the owner of the mark exclusive rights to use the registered mark as he/she wishes. Registration of a trademark gives the owner tangible/physical evidence ownership of the particular mark.

What are the benefits of trademarking? 

Trademarking confers upon the owner of a mark the exclusive right to use the mark to the restriction of anyone else. If anyone other than the owner of a mark seeks to use the particular mark in question, the permission of the owner must first be obtained.

Moreover, the owner of a registered mark has the right to institute court proceedings against any person who infringes the mark by using it without the owner’s permission, or anyone who performs acts which make it likely that infringement will occur.

A registered mark remains in existence for a period of ten (10) years from the date on which the application for the registration of the mark was filed. However, a registered mark can be renewed for a consecutive (additional) period of ten (10) years, upon request to the Registrar of Intellectual Property and Commerce, and filling of the necessary forms and fees.

The application for renewal of a registered trademark can be made six (6) months before the date of expiration of the mark. Additionally, a grace period of six (6) months is also allowed for renewal of a registered mark, after the date of expiry of the mark has passed, upon payment of an additional fee.

What are the qualifications for trademarking? 

In order for a mark to be registered, it must meet certain qualifications as outlined under the Trade Marks Act, 2003 of the Laws of Antigua and Barbuda. A mark will not be registered otherwise.  To be validly registered, a mark:

1. Must be capable of distinguishing the goods or services of one enterprise from those of another.

2. Must not be contrary to public order or morality.

3. Must not mislead the public or trade circles, as it concerns the geographical origins of the goods or services concerned or their names or characteristics.

4. Must not be identical with, an imitation to or contain as an element, an armorial bearing, flag and other emblem, a name or abbreviation or initials of the name of, or official sign or hallmark adopted by, any State, intergovernmental organization or organization created by an international convention, unless authorized by the competent authority of that state or organization. Therefore, for example, in order to trademark a name that included the name “Antigua and Barbuda”, permission must first be sought and obtained from the Prime Minister.

5. Must not be identical with, confusingly similar to or amount to an interpretation of a mark or trade name that is well known in Antigua and Barbuda for identical or similar goods or services of another business or company.

6. Must not be identical to a mark belonging to a different owner and already registered in respect of the same goods or services or closely related goods or services, or if it so nearly resembles such a mark, as to be likely to deceive or cause confusion.

How can a name, logo or sign be trademarked?

A name or logo can be trademarked by filing a registration application at the Intellectual Property and Commerce Office and paying the required registration fees. The amount of fees depends on the nature of the services to be provided under the particular name or logo. Moreover, each mark is registered according to the class of services that the owner is seeking to provide. Therefore, the fees payable upon registering a mark will vary and is dependent upon whether the services provided under a trademark falls under more than one class.

The first step towards trademarking your business name, logo or sign is to contact a local attorney-at-law or an agent who has been admitted to represent clients at the Intellectual Property Office. Moreover, according to the Trade Marks Regulations, 2006, an agent who is not a local attorney-at-law, is required to apply to the Registrar of Intellectual Property and Commerce to be a registered agent admitted to represent clients at the Intellectual Property Office. Individuals may choose to either register a mark themselves or seek out the assistance of an attorney-at-law or a registered agent.

The documents which are usually submitted to the Intellectual Property Office for the registration of a trademark are: Form 1 – Application for Registration of a Mark, Form 2 – Appointment of Agent and a Declaration accompanied by a cover letter, addressed to the Registrar of Intellectual Property and Commerce with the prescribed fees enclosed. The fees associated with the registration of a trademark are separate and apart from the legal fees.

After a trademark has been registered, a registration certificate is then issued by the Intellectual Property Office to the owner of the mark. This Certificate stands as proof of ownership of the registered trademark. Protection of any trademark can be enforced through civil proceedings.

What is Copyright? 

Copyright is a form of protection to the author of works such as books, poetry and music. According to the Copyright Act, 2003, of the Laws of Antigua and Barbuda, copyright is a property right which may be contained in work such as original literary, dramatic, musical or artistic works; sound recording, films, broadcasts or cable programs; typographical arrangements of published editions.

Why is Copyright Protection Important? 

Copyright protection bears certain benefits, such as preventing others from using the work without the permission of the author or owner.  The owner of the Copyright in a work has the exclusive right to do or to authorize other persons to do certain things in relation to the particular piece of work, such as: copy the work, issue copies of the work to the public by sale, perform the work in public and broadcast or include the work in a cable program service.

What are the Requirements for Copyright Protection?

A piece of literary work is eligible for copyright protection if it is the original work of the author. An original piece of literature, dramatic or musical work, including a collection of expressions of folklore will only be eligible for copyright protection if it is recorded in writing or otherwise.

However, there is no copyright protection for a sound recording, broadcast, cable programme or typographical arrangement of a published work, which has been previously recorded, broadcasted or published.

Further, copyright protection does not apply to an idea, concept, method of operation, process, principle, procedure, system or discovery or mere data, even if it is expressed, described, explained, illustrated or embodied in a work. Therefore, in order to be considered for copyright protection, the intellectual works of the author must be manifested into some physical form.

What are the Qualifications for Copyright Protection?

A work qualifies for copyright protection if the author was a qualified person at the material time, that is, the time of publishing of the work by issuing copies to the public by sale or through an electronic retrieval system. A qualified person is someone who is a citizen of, or whose habitual residence is in Antigua and Barbuda or a country specified by the Minister responsible for copyright in Antigua and Barbuda.

Architecture in the form of a building, or an artistic work incorporated in a building is considered published upon construction of the building, while a literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition, qualifies for copyright protection if it is first published in Antigua and Barbuda or a country specified by the Minster.

Moreover, a broadcast qualifies for copyright protection if it is made from a place in Antigua and Barbuda or any country specified by the Minister, by a broadcasting organization in possession of a valid license granted to it under any law in Antigua and Barbuda or a country specified by the Minister, which regulates broadcasting.

Further, a cable programme qualifies for copyright protection if it is sent from a place in Antigua and Barbuda or in a country specified by the Minster, in accordance with the law in force regulating transmission by cable.

What is the duration of Copyright Protection?

The lifespan of a copyright depends on the nature of the particular work of art, whether it be literature, music, commercial broadcasts, films or architecture. Therefore, copyright in any literary, dramatic, musical or artistic work expires at the end of the period of fifty years from the end of the year in which the author of that work dies.

On the other hand, copyright in sound recordings or films expires at the end of the period of fifty years from the end of the year in which the sound recording or film was made or if it was made available to the public or published before the end of the year, it will expire at the end of fifty years from the end of the year in which it was made available to the public or published, whichever date is latest.

The copyright protection in a broadcast or cable programme expires at the end of the period of fifty years from the end of the year in which the broadcast was made or the programme included in a cable programme service.

How can a person protect their work by Copyright?

Apart from local legislation, such as the Copyright Act, 2003, which governs copyright protection in Antigua and Barbuda, there is international legislation, which also governs copyright protection in Antigua and Barbuda. The Berne Convention is one such international legislation. Under this Convention copyright protection in Antigua and Barbuda is obtained automatically, without the need for registration or other formalities. This protection applies both to nationals and non-nationals of Antigua and Barbuda.

Copyright protection in Antigua and Barbuda is therefore not dependent upon any formal registration, but is done automatically upon publication of the particular piece of work for which protection is being claimed. According to the Copyright Act, 2003, publication of a work means that copies of the work has been distributed to the public (by sale or otherwise) and in relation to literary, musical, dramatic or artistic work, the making available of copies to the public by means of an electronic retrieval system.

However, while a person need not formally register for copyright protection, if the original work of art comes into dispute or has been infringed in anyway, for example, through unauthorized use, the owner of the original work must have some physical proof of ownership in order to dispute the infringement of his or her copyright protection. It is therefore advised that the owner of an original piece of work ensure that he or she has a physical copy of the work, as well as their name and the date on which the work was created.

Therefore, it is usually advised that, if you are the owner of an original piece of work, you should mail a physical copy of that work to yourself, with the date and year in which the work was first published enclosed. When the mail is received, it should be kept unopened and if any court proceedings arise in relation to the copyright of the work, the mail should then be taken to an attorney-at-law, who would then render advice as to how to proceed. •

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