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Dutch constitutional reform and Caribbean IP

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Dutch constitutional reform and Caribbean IP

Dutch constitutional reform and Caribbean IP

Admittedly, the precise legal situation when it comes to the protection of intellectual property in the Caribbean territories of the Kingdom of the Netherlands is probably in the blind spot of most Dutch patent and trademark attorneys.

A recent constitutional reform seems a good occasion to set the legal framework straight.

The constitutional reform in question took effect on 10 October last. On the day before the reform, the Kingdom of the Netherlands consisted of three essentially autonomous countries: the Netherlands (the European dominion of the Kingdom), the Netherlands Antilles, and Aruba. The Netherlands Antilles in turn consisted of five islands: Curaçao, St Maarten, Bonaire, St Eustatius and Saba. On 10/10/10 the Netherlands Antilles were dissolved: the islands of Curaçao and St Maarten became separate countries within the Kingdom, whereas the so-called BES-islands Bonaire, St Eustatius and Saba were incorporated in the Netherlands as extraordinary municipalities. Currently the Kingdom thus comprises four countries. The Caribbean islands, and in particular the BES-islands, have all retained their status as overseas countries and territories in their relation to the European Union, which – among other things – means that they are not directly subject to EU law (e.g. the Community trademark regulation).

Patentwise, little is new under the sun. As before the reform, the legal situation in the Kingdom with regard to domestic patents is governed by two pieces of legislation: the Patent Act for the Kingdom of 1995 (“Rijksoctrooiwet 1995”) and the Patent Ordinance (“Octrooiverordening”). The Patent Act covered and still covers the territory of the Kingdom apart from Aruba. In accordance with the wish of the Aruban government, the Patent Act never integrally entered into effect for Aruba. Instead Aruba chose to enact its own Patent Ordinance, which was not affected by the latest constitutional reform. Thus, in order to obtain a domestic patent for the entire territory of the Kingdom, one had and still has to file two distinct patent applications.

The legal situation with regard to European and international patent applications is similar. Despite a statement to the contrary in the revised April 2010-version of the Guidelines for Examination in the EPO (see General part, pt.6), on the day before the reform the EPC was applicable to both the Netherlands and the Netherlands Antilles (for the latter, it has been since 4 April 2007). Since 10/10/10 the EPC is in effect for the Netherlands (including the three BES-islands), Curaçao and St Maarten. Hence, a Dutch-European patent granted under the EPC was and is valid for the territory of the Kingdom aside from Aruba. Unlike the EPC, the PCT has been ratified for the entire territory of the Kingdom. Still, patent protection in the Netherlands and the Netherlands Antilles, and in the new situation in the Netherlands, Curaçao and St Maarten, could resp. can only be procured via the regional route through the EPO, while Aruba was and is to be designated independently in an international application.

In the realm of trademarks, the law on domestic trademarks for the European dominion of the Netherlands has remained as laid down in the Benelux Convention on Intellectual Property, while the legal situation in Aruba is still governed by Aruba’s own Trademark Ordinance.

On 10/10/10 a new Trademark Act (“Wet Merken BES”) entered into effect for the BES-islands. The Trademark Act is administered by the Benelux Office for Intellectual Property (see www.caribie.nl), and is largely identical to the law on trademarks that was previously in force for the Netherlands Antilles. An important difference is that the Trademark Act does not provide for the examination of trademark registrations on absolute grounds. Another difference is that representation by a representative is no longer compulsory. Like the law of the Netherlands Antilles, the Trademark Act does not provide for the possibility to file an opposition. For ‘old’ Antillean trademarks that were in force for the BES-islands at the time of the constitutional reform, a transitional arrangement is applicable: Antillean trademark owners have the opportunity to confirm their registrations for the BES-islands until 10 October 2011; a confirmation is free of charge.

It appears that Curaçao and St Maarten will have their own law on trademarks and maintain their own trademark registers. Details and the associated timetable are, however, as yet unknown.

As to international registrations, the Madrid Agreement has remained in force for the European dominion of the Netherlands, while the Madrid Protocol is now in effect for the entire territory of the Kingdom aside from Aruba. Any international registrations that were in force in the Netherlands Antilles at the time of the constitutional reform will automatically be converted into registrations for Curaçao, St Maarten and the BES-islands.

Although the above outline of the legal framework is not exhaustive, it hopefully contributes to an awareness of the at points complex hotchpotch of legislation that rules patents and trademarks in the Kingdom of the Netherlands.

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