In July of this year, Ogier published a briefing on the Cayman Islands' Government's first major step in the reform of Intellectual Property (IP) laws in the Cayman Islands. In that briefing we covered the overhaul of the Copyright regime in the Cayman Islands which extended (subject to some exclusions and modifications) Part 1 of the UK Copyright, Designs and Patents Act 1988 (as amended and modernised from time to time) (the 1988 Act) to the Cayman Islands. This step fully modernised Copyright laws in Cayman.
On 31st August, the following draft proposed legislation were published in the Cayman Islands Gazette:
- The Patents and Trade Marks (Amendment) Bill, 2016
- The Trade Marks Bill, 2016
- The Design Rights Registration Bill, 2016
What do these Bills mean for IP laws in the Cayman Islands?
The World Intellectual Property Organisation (WIPO) defines a Patent as: "A Patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution"
The current law in the Cayman Islands enables proprietors of UK Patents to automatically extend their Patents into the Cayman Islands.
This will continue to be the case under this next stage of IP reform. The Patents and Trade Marks (Amendment) Bill, 2016 has the effect of maintaining the current Patent laws, while stripping out all Trade Mark provisions from the current law to create space for the new proposed Trade Mark law (described below).
In addition, the draft Bill provides for anti-patent trolling laws, to prevent abuse by Patent Trolls (otherwise called Patent Assertion Entities). Ogier has been at the front line of the drafting of these anti-trolling provisions.
A Patent Troll is a person who holds and enforces Patents in an aggressive and opportunistic manner, often with no intention of marketing or promoting the subject of the Patent. In other jurisdictions, particularly in the US, the activities of Patent Trolls have imposed considerable economic burdens on the creative pursuits of others involved in development and commercial exploitation of IP. The experience in those jurisdictions is that software Patents are 'particularly prone' to such abuse.
Therefore, in keeping with the main purpose of the proposed IP reforms, which is to establish the Cayman Islands as a desirable hub for the development and commercial exploitation of IP, the proposed Bill seeks to introduce measures to prevent the abusive use of Patents.
WIPO defines a Trade Mark as: "A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises."
A simple way to think about Trade Marks is that they are "brands".
The current law in the Cayman Islands enables proprietors of UK and EU Trade Marks to automatically extend their Trade Marks into the Cayman Islands.
The Trade Marks Bill, 2016 provides for a new stand-alone Trade Mark System in the Cayman Islands which is not dependent on UK or EU registrations. This is a significant and important development for the Cayman Islands because it means that businesses (both local and foreign) whose interests are more centred in the Americas and the Caribbean will be able to protect their brands without having to first consider registration in the UK or EU.
In our next briefing, we will look at the provisions of the new Trade Mark law in more detail.
WIPO says: "In a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of an article. An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color."
There are no current Design Right laws in place in the Cayman Islands. The Design Rights Registration Bill, 2016 would enable proprietors of UK and EU Registered Design Rights to automatically extend their Registered Design Rights into the Cayman Islands.
As we noted in our prior briefing, the Cayman Islands Government and legal community continue to strive forward with reforms to assist local and foreign businesses, entrepreneurs and artists to protect their IP in the Cayman Islands, and to exploit their IP through licensing or trade. The reforms will also encourage further investment into the Cayman Islands from abroad for similar reasons, enhancing the economy further.
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