CHECKLIST OF ISSUES ON ENFORCEMENT[1]
Responses from saint kitts and nevis
Civil and Administrative Procedures and
Remedies
(a) Civil
judicial procedures and remedies
1. Specify the courts which have jurisdiction over IPR infringement
cases.
By virtue of s. 87 of the
Copyright Act, s. 61 of the Patents Act, s. 26 of the Marks, Collective Marks
and Trade Names Act, s. 22 of the Geographical Indications Act and s. 23 of the
Protection of Layout Designs (Topographies) of Integrated Circuits Act, the High
Court (the term "Supreme Court" is used interchangeably) has
jurisdiction in cases of disputes relating to the application of the respective
IPR laws and regulations. In certain cases where criminal offences may be tried
summarily, these would be heard in the Magistrates Court.
The
Federation is a part of the Organisation of Eastern Caribbean States Supreme
Court and is therefore governed procedurally by the 2000 Civil Procedure Rules
which are applicable throughout the Eastern Caribbean. The jurisdiction is a
common law one and as such is guided by a combination of legislation and
judicial decisions. The Supreme Court consists of the High Court and the
Eastern Caribbean Court of Appeal exercising appellate jurisdiction. Final
appeal is to the Privy Council and on an extremely limited basis to the
Caribbean Court of Justice in respect of certain CARICOM Single Market and
Economy (CSME) issues.
2. Which persons have standing to assert IPRs? How may they be
represented? Are there requirements for mandatory personal appearances before
the court by the right holder?
The right holders or exclusive
licensee are generally the only persons who can assert IPRs. Under the Eastern
Caribbean Civil Procedure Rules (2000), which govern procedural matters in
civil matters in the High Court and Court of Appeal, the Court has an
overriding objective to deal with cases justly. Rule 25.1(d) expressly
encourages the court to actively manage cases as far as appropriate without
requiring parties to attend court. The Magistrates Code of Procedure which
governs matters at the magisterial level provides in s. 76 that a party may
appear in person or by his counsel in criminal matters. Personal appearances
are therefore not mandatory but will be a matter for the judge or magistrate to
determine based on the circumstances of the particular case.
3. What authority do the judicial authorities have to order, at the
request of an opposing party, a party to a proceeding to produce evidence which
lies within its control?
Sections 33, 48, 134 and 136 of
the Copyright Act confer the right of a party to apply to the Court for an
order to force the opposing party to deliver infringing material that may be in
his possession. The right applies to goods infringing copyright and related
rights in both criminal and civil proceedings. The Patents Act grants similar
right to the plaintiff to apply for an order of delivery [s. 40(2)]. The
trademark legislation does not contain a similar provision but the Eastern
Caribbean Supreme Court Civil Procedure Rules grants a judge of the High Court
the power to grant interim remedies including orders to deliver up goods [Rule
17.1(k)]. The Magistrate Courts' procedure is silent on this matter.
4. What means exist to identify and protect confidential information
brought forward as evidence?
Generally the onus would be on
the parties to identify the evidence submitted as confidential. Depending on
the nature of the evidence it may be sealed or otherwise protected. Thereafter
the evidence would be stored in one of the Courts' storage facilities which are
only accessible by select Court officials. All Government workers swear to
oaths of secrecy on entering the civil service.
5. Describe the remedies that may be ordered by the judicial
authorities and criteria, legislative or jurisprudential, for their use:
- injunctions;
- damages, including recovery of profits,
and expenses, including attorney's fees;
- destruction or other disposal of
infringing goods and materials/implements for their production;
- any other remedies.
Note
generally that in respect of all civil IPR infringement cases, costs which will
include expenses and attorney fees, can be awarded pursuant to the Civil
Procedure Rules or the Magistrates Code of Procedure.
Copyright
Remedies
An infringement of copyright is actionable at
the suit of the copyright owner, and subject to certain provisions, in any
action for such an infringement, all such relief by way of damages, injunction,
accounts or otherwise, shall be available to the plaintiff as is available in
respect of infringement of both moral and economic rights. Any person whose
rights are in imminent danger of being infringed, are being infringed or have
been infringed, may institute proceedings in the High Court for an interim
injunction. The grant of an injunction shall not deprive a person of any
damages that may be awarded to him or her for loss sustained by him or her as a
result of the infringement of his or her right. Injunctions can be granted in
addition to any other remedy available under the Act or power of the Court.
They can also be granted at any time including after judgment and before a
claim has been made (CPR 2000, Rule 17.2). Applications can be made with or
without notice to the opposing parties.
Damages
Where
copyright infringement is proved or admitted, the court, having regard to any
benefit accruing to the defendant by reason of the infringement, the flagrancy
of the infringement and to all other material considerations, the court shall
have power to award such additional damages as the court may consider
appropriate in the circumstances.
Where
in an action for infringement of copyright it is shown that at the time of the
infringement the defendant did not know and had no reason to believe that
copyright subsisted in the work to which the action relates, then the plaintiff
shall not be entitled to damages against him or her. However, this shall not
affect any other remedy available to a plaintiff referred to in that subsection
(s. 32)
Section
35(5) provides that where an action for infringement of copyright is brought
which relates, wholly or partly, to an infringement in respect of which the
copyright owner and an exclusive licensee have or had concurrent rights of
action, then, whether or not the copyright owner and the exclusive licensee are
both parties to the action, the court
(a) shall,
in assessing damages take into account the terms of the licence and any
pecuniary remedy already awarded or available to either of them in respect of
the infringement;
(b) shall
not direct an account of profits if an award of damages has been made or an
account of profits has been directed in favour of the other of them in respect
of the infringement; and
(c) shall,
if an account of profits is directed, apportion the profits between them as the
court considers just subject to any agreement between them.
In
respect of performer's rights, section 112 provides that a reasonable amount of
compensation may be available to a copyright owner in damages where in action
the defendant shows that the illicit recording was innocently acquired by him
or her or a predecessor in title of his or her. Damages shall not be awarded
against a defendant who shows that at the time of the infringement he or she
believed, on reasonable grounds, that consent had been given (s.114)
Destruction or other disposal of
infringing goods and materials/implements for their production
A
copyright holder can apply to the Court for an order that an infringing copy or
article that has been delivered up be forfeited to the holder or "destroyed
or otherwise dealt with as the court may direct" (s. 138). In considering
what order, if any, should be made, the Court shall have regard to all the
circumstances of the case and, in particular,
(a) where
the infringement relates to copyright in a work, whether other remedies
available in an action for infringement of copyright would be adequate to
compensate the copyright owner and to protect his or her interest;
(b) where
the infringement relates to performer's rights, whether other remedies
available in an action for infringement of those rights would be adequate to
compensate the person or persons entitled to the rights and to protect their
interests.
Additionally
Members of the Police Force above the rank of Inspector have the power to
seize, remove and detain any article which appears to be an infringing
copy or an illicit recording or any other article which appears to him or her
to be intended for use for making such copies or recordings (s. 141). Section
31(4) expressly provides that it is an infringement to make, import, possess in
the course of business, sell or rent an article specifically
designed or adapted for making copies of that work, knowing or having reason to
believe that it is to be used to make infringing copies. All of the usual
remedies would therefore be open to a copyright holder whose rights have been
infringed by the acts in s. 31(4).
Other
In
addition to the grant of an injunction or the award of damages for an
infringement of moral rights, the Court may order the defendant to publish such
correction in such terms and in such manner as the court may direct.
Trademarks
Under
the s. 27 of the trademark legislation, injunctions can be granted for
infringements and imminent infringements. Damages can also be awarded and any
other remedy provided for in the general law can be granted where the rights of
a trademark owner or licensee have been infringed. An application can also be
made for an order to seize, forfeit or destroy any infringing product or
article or of any product or article of which the infringing product or article
forms an inseparable part and any article, instrument or thing by which any
infringing product or article was produced. Similar provision is made in
respect of infringing layout-design, integrated circuit or any product or
article of which the infringing layout-design or integrated design forms an
integral part in s. 24 of that legislation.
Patents
Under the
patent law, a plaintiff in proceedings for infringement shall be entitled to
relief by way of
(a) an
injunction restraining the defendant from any apprehended act of infringement;
(b) an
order for him or her to deliver up or destroy any patented product in relation
to which the patent is infringed or any article in which that product is
inextricably comprised;
(c) damages
in respect of the infringement;
(d) an
account of the profits derived by him or her from the infringement;
(e) any
other relief provided for in the general law.
Section
40(3) further provides that where damages are awarded, the Court should not
give the plaintiff an account of the profits derived from the same infringement.
In awarding damages, s. 40(9) enjoins the Court to calculate such damages
taking into account the amount of a reasonable royalty which would have been
payable by a licensee or sub-licensee in respect of the patent concerned.
6. In what circumstances, if any, do judicial authorities have the
authority to order the infringer to inform the right holder of the identity of
third persons involved in the production and distribution of the goods or
services found to be infringing and of their channels of distribution?
None of the IP related
legislation confers authority on adjudicators to order the infringer to
identify third parties involved in the production and distribution of
infringing goods and services.
7. Describe provisions relating to the indemnification of defendants
wrongfully enjoined. To what extent are public authorities and/or officials
liable in such a situation and what "remedial measures" are
applicable to them?
There are no provisions which
speak to situations where defendants are wrongfully enjoined. Only the
Copyright Act speaks to indemnification for public officials. Under s. 50, a
copyright owner can request in writing that the Comptroller of Customs to treat
certain goods as prohibited for a specified period (no longer than 5 years once
copyright still subsists). The law requires that the copyright owner
indemnifies the Comptroller against "any such liability or expenses,
whether security has been given or not".
8. Describe provisions governing the length and cost of proceedings.
Provide any available data on the actual duration of proceedings and their
cost.
There have not been any IP
related matters before the courts in St. Kitts and Nevis, therefore no actual
data is currently available on the length and costs of proceedings. However,
the overriding objective of the Civil Procedure Rules mandates that matters
should be dealt with justly which includes having matters dealt with
expeditiously and in ways to save expense.
(b) Administrative
procedures and remedies
9. Reply to the above questions in relation to any administrative
procedures on the merits and remedies that may result from these procedures.
There are no further procedures
to report.
Provisional Measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities
may order, and the legal basis for such authority.
Provisional
measures include:
·
Under the
Copyright Act, granting the power of the Comptroller of Customs to restrict
importation of infringing copies (s. 50) after the copyright owner has
requested him/her in writing to do so. Within this request, the owner must, in
accordance with TRIPS Art. 50, furnish evidence of pending or actual
importation and give security and indemnity against the Comptroller of Customs.
Further provisional measures in relation to this restriction can be made by the
Minister.
·
The Court also
has the power to order an injunction on imminent as well as actual copyright,
patent, trademark, layout design or integrated circuit infringement. This
would, in accordance with TRIPS Art. 50(1) prevent infringing goods from
entering channels of commerce. This also applies to trademark infringement as
expressly provided for in s.27.
11. In what circumstances may such measures be ordered inaudita altera parte?
Under the Civil Procedure Rules,
injunctions can be ordered without the other party being heard.
12. Describe the main procedures for the initiation, ordering and
maintenance in force of provisional measures, in particular relevant
time-limits and safeguards to protect the legitimate interests of the
defendant.
As it relates to restrictions on the
importation of copyright infringing goods at the initiation of the right
holder, the procedure is set out generally in s. 50 of the Act but specific
details such as time limits will be fleshed out in regulations which are
currently being drafted. Safeguards to protect the legitimate interests of the
defendant will also be included.
13. Describe provisions governing the length and cost of proceedings.
Provide any available data on the actual duration of proceedings and their
cost.
The answer to
question #8 is applicable under the present query as well.
(b) Administrative
measures
14. Reply to the above questions in relation to any administrative
provisional measures.
There are no further procedures
to report.
Special Requirements Related to Border
Measures
15. Indicate for which goods it is possible to apply for the suspension
by the customs authorities of the release into free circulation, in particular
whether these procedures are available also in respect of goods which involve
infringements of intellectual property rights other than counterfeit trademark
or pirated copyright goods as defined in the TRIPS Agreement (footnote to
Article 51). Specify, together with relevant criteria, any imports excluded
from the application of such procedures (such as goods from another member of a
customs union, goods in transit or de
minimis imports). Do the procedures apply to imports of goods put on
the market in another country by or with the consent of the right holder and to
goods destined for exportation?
The Customs (Control and
Management) Act lists a number of goods which are generally prohibited from
importation. Such goods can be seized and are liable to forfeiture. If the
owner of seized goods wishes to contest the seizure, there are procedures in
place to determine whether the goods should be released. The Copyright Act is
the only IP related legislation that expressly gives the customs authorities
the power to suspend the release of infringing goods but importation of
infringing goods is a criminal offence under all of the IP related legislation
which would lead to the goods being confiscated.
There are no express exclusions
as it relates to goods which the suspension procedures may apply to. There are
no exclusions for goods put on the market in another country by or with the
consent of the right holder and to goods destined for exportation.
16. Provide a description of the main elements of the procedures
relating to the suspension of the release of goods by customs authorities, in
particular the competent authorities (Article 51), the requirements for an
application (Article 52) and various requirements related to the duration of
suspension (Article 55). How have Articles 53 (security or equivalent
assurance), 56 (indemnification of the importer and of the owner of the goods)
and 57 (right of inspection and information) been implemented?
Section 50 of the Copyright Act
provides that a right holder may lodge a notice in writing to the Comptroller
of Customs requesting the Comptroller to treat infringing copies of the specified
work as prohibited goods. The right holder must
(i) Furnish evidence of importation of the goods
(ii) Pay any fees attached to the notice
(iii) Give security to in
respect of the Comptroller in respect of any liability or expense that the
Comptroller may incur in detaining the goods
(iv) Indemnify the Comptroller of Customs against
any liability or expenses.
The Government of St. Kitts and
Nevis notes the absence of provisions relating to the duration of the
suspension and indemnification of the importer and owner of the goods and the
right holder's right to inspect the goods in accordance with TRIPS Articles 54
to 57 and will address them in our legislative review.
17. Describe provisions governing the length and cost of proceedings.
Provide any available data on the actual duration of proceedings and their
cost. How long is the validity of decisions by the competent authorities for
the suspension of the release of goods into free circulation?
The answer to question #8 is
applicable under the present query as well.
18. Are competent authorities required to act upon their own initiative
and, if so, in what circumstances? Are there any special provisions applicable
to ex officio action?
The Copyright Act does not
confer an authority on the Comptroller of Customs to act on his/her initiative.
Section 141 therein however, grants the power to a police officer above the
rank of Inspector the right to authorize the following activities where there
is a reasonable cause to believe that copyright infringement is being
committed:
(a) enter and search any premises or place;
(b) stop, board and search any
vessel, other than a ship of war, or any aircraft, other than a military
aircraft; or
(c) stop and search any
vehicle, in which the constable reasonably suspects there is an infringing copy
of a work or an illicit recording or any article used or intended to be used
for making infringing copies or illicit recordings; and
(d) seize, remove or detain
(i) any article which appears to the constable
to be an infringing copy or an illicit recording or any other article which
appears to him or her to be intended for use for making such copies or
recordings; and
(ii) anything which appears to
him or her to be or to contain, or to be likely to be or to contain, evidence
of an offence under this Act.
Aggrieved parties, in all IP
cases would have to apply to the Court to activate that competent authority.
19. Describe the remedies that the competent authorities have the
authority to order and any criteria regulating their use.
The Copyright Act is the only IP
related legislation that has a competent authority outside of the High Court
i.e. the Customs authority. The Act does not give the Comptroller of Customs
any other authority outside of suspending the release of the goods. Other remedies that can be ordered by the
Court have been outlined above.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of
infringement of IPRs.
Refer to the answer to question
#1 above
21. In respect of which infringements of which intellectual property
rights are criminal procedures and penalties available?
IP
|
Offence
|
Penalty
|
Copyright
|
s. 46(1) Any
person who, at a time when copyright in a work subsists by virtue of this
Act,
(a) makes for sale or hire;
(b) in the course of a business, sells or lets
for hire, or offers or exposes for sale or hire, exhibits in public or
distributes;
(c) imports into Saint Christopher and Nevis
for purposes other than his or her private and domestic use; or
(d) distributes otherwise than in the course
of a business to such an extent as to affect prejudicially the owner of the
copyright;
any article
which he or she knows or has reason to believe is an infringing copy of that
work, commits an offence. [s. 46(1)]
|
On summary
conviction to a fine not exceeding fifty thousand dollars or imprisonment for
a term not exceeding two years or both;
(b) on conviction on indictment, to a fine not
exceeding two hundred and fifty thousand dollars or imprisonment for a term
not exceeding five years or both. [s. 46(4)]
|
|
s. 46(2) A person who, at the time when copyright
subsists in a work by virtue of this Act, makes or has in his or her
possession an article specifically designed or adapted for making copies of that
work, knowing that it is to be used for making infringing copies for sale or
hire, or for use in the course of business, commits an offence.
|
s. 46(5): (a)
on summary conviction, to a fine not exceeding twenty-five thousand dollars,
or imprisonment for a term not exceeding one year or both;
(b) on
conviction on indictment, to a fine not exceeding one hundred thousand
dollars, or imprisonment for a term not exceeding three years or both.
|
|
s. 135 (1): A
person who, without sufficient consent,
(a) makes for sale or hire;
(b) imports into Saint Christopher and Nevis
otherwise than for his or her private and domestic use;
(c) possesses in the course of a business with
a view to doing any act infringing the rights conferred by this Part; or
(d) in the course of a business
(i) sells
or lets for hire;
(ii) offers
or exposes for sale or hire; or
(iii) distributes;
a recording
which is, and which he or she knows or has reason to believe is, an illicit
recording commits an offence,
|
(a) on summary conviction, to a fine not
exceeding fifty thousand dollars or imprisonment for a term not exceeding two
years or both, or
(b) on conviction on indictment, to a fine
of two hundred and fifty thousand dollars or imprisonment for a term not
exceeding five years, or both.
|
|
s. 135(2): A
person who causes a recording of a performance made without sufficient
consent to be shown or played in public, or to be broadcast or included in a
cable programme service so as to infringe any of the rights conferred by this
Part, if he or she knows or has reason to believe that those rights are
infringed commits an offence, and shall be liable
|
(a) on summary conviction, to a fine not
exceeding fifty thousand dollars or imprisonment for a term not exceeding two
years, or both;
(b) on conviction on indictment, to a fine of
two hundred and fifty thousand dollars or imprisonment for a term not
exceeding five years, or both [s. 135(2)]
|
|
s. 137(1): A
person who makes a false representation that he or she is authorised by any
person to give consent for the purposes of this Part 8 (Rights in
Performances) in relation to a performance commits an offence, unless he or
she believes, on reasonable grounds, that he or she is so authorised.
|
s. 137(2): on
summary conviction, to a fine not exceeding five thousand dollars or
imprisonment for a term not exceeding six months, or both.
|
|
s. 143(1):
Without prejudice to any other written law, any person who
(a) wilfully obstructs a police officer in the
exercise of his or her powers or the performance of his or her duties under
this Act;
(b) wilfully fails to comply with any
requirement properly made to him or her by the police officer; or
(c) without reasonable excuse, fails to give
the police officer any other assistance which he or she may reasonably
require to be performing his or her duties under this Act;
commits an
offence, and shall be liable,
|
on summary
conviction, to a fine not exceeding ten thousand dollars or imprisonment for
a term not exceeding one year, or both [s. 143(1)]
|
|
s. 143(2): A
person who, when required to give information to a police officer in the
exercise of his or her powers or the performance of his or her duties under
this Act, gives false or misleading information to the officer commits an
offence and shall be liable
|
On summary
conviction, to a fine not exceeding five thousand dollars or imprisonment for
a term not exceeding six months, or both. [s.143(2)]
|
Trademarks
|
s. 27: An
infringement shall consist of the performance, in Saint Christopher and Nevis,
of any act referred to in
section 9 of this Act by a person, other than the owner of the title of
protection, and without the agreement of the latter.
s. 9(1) No
person shall use a registered mark in relation to any goods or services for
which it is registered unless he or she has the authorisation of the owner to
do so.
s. 17(3): The
use of any trade name by a third party, whether as a trade name or a mark or
collective mark, or the use of a similar trade name or mark, that is likely
to mislead the public, is unlawful.
|
S. 28(1): Any
person who performs an act which constitutes an infringement as defined in
section 27 of this Act or an unlawful act as defined in section 17 (3) of
this Act commits an offence and is liable, on conviction, to a fine of not
less than ten thousand dollars and not exceeding thirty thousand dollars, or
imprisonment for a term of not less than three years and not exceeding ten
years, or both.
|
|
s. 28(2): Any
person who
(a) forges a mark or collective mark;
(b) makes any die, block, machine or other
instrument for the purposes of forgoing or of being used for forgoing a mark
or collective mark;
(c) disposes of, or has, in his or her
possession, any such die, block, machine or other instrument;
|
On
conviction, to a fine of not less than fifteen thousand dollars and not
exceeding forty thousand dollars, or imprisonment for a term of not less than
five years and not exceeding twelve years, or both. [s.28(2)]
|
|
(d) sells, or has, in his or her possession
for sale, any goods to which is affixed a forged mark or collective mark;
(e) imports, into Saint Christopher and Nevis
(i) any
product or article bearing a forged mark or collective mark; or
(ii) any
other infringing product or article;
commits an
offence, and shall be liable
|
|
|
s. 28(3): Any
person who, knowing the same to be false,
(a) makes or causes to be made a false entry
in the Register;
(b) makes or causes to be made any document
falsely purporting to be a copy of an entry in the Register; or
(c) produces, tenders or causes to be produced
in evidence any such entry or copy thereof;
commits an
offence, and shall be liable
|
On
conviction, to a fine of not less than ten thousand dollars and not exceeding
thirty thousand dollars, or to imprisonment for a term of not less than three
years and not exceeding ten years, or both. [s. 28(3)]
|
|
s. 28(4): Any
person who, for the purpose of
(a) deceiving the Registrar or any other
officer in the execution of his or her duties under this Act; or
(b) procuring or influencing the doing or
omission of any act under this Act;
makes a false
statement or representation knowing the same to be false, commits an offence,
and shall be liable
|
On
conviction, to a fine of not less than five thousand dollars and not
exceeding twenty thousand dollars, or imprisonment for a term of not less
than two years and not exceeding five years, or both. [s. 28(4)]
|
Patents
|
s. 62(1) Any
person who intentionally or wilfully performs an act which constitutes an
infringement as defined under section 40 of this Act commits an offence
|
He/she is
liable to a fine of not less than fifteen thousand dollars and not more than
forty thousand dollars, or to imprisonment for a term of not less than five
years and not more than twelve years, or both. [s. 62(1)]
|
|
s. 40(1) The
patentee shall, in addition to any other right, remedy or action available to
him or her, have the right, subject to sections 33.(4), 35, 38 and 42 of
this Act, to institute Court proceedings against any person who infringes the
patent by performing, without his or her authorisation, any of the acts
referred to in section 33(2) of this Act or who performs acts which make it
likely that infringement will occur.
s.33(2) The rights
referred to in subsection (1) shall be the following, namely,
(a) to continue to do or, as the case may be,
to do that act himself or herself;
(b) if the act was done or preparations had
been made to do it in the course of a business,
(i) to
assign the right referred to in paragraph (a) of this subsection;
(ii) to
transmit the right referred to in paragraph (a) of this subsection to his or
her heirs upon his or her death or, in the case of a body corporate, on its
dissolution, to any person who acquires that part of the business in the
course of which the act was done or preparations had been made to do it;
(iii) to
authorise the act to be done by any partners of his or her for the time being
in that business; and
the doing of
that act by virtue of the provisions of this subsection shall not amount to an
infringement of the patent concerned.
|
|
|
S. 62(2) Any
person who, knowing the same to be false,
(a) makes or causes to be made a false entry
in the Register;
(b) makes or causes to be made any document
falsely purporting to be a copy of an entry in the Register; or
(c) produces, tenders or causes to be produced
or tendered as evidence any such entry or copy thereof,
commits an
offence
|
Liable to a
fine of not less than ten thousand dollars and not more than thirty thousand
dollars, or to imprisonment for a term of not less than three years and not
more than ten years, or both. [s.62(2)]
|
|
s. 62(3) Any
person who, knowing the same to be false, makes a false statement or
representation that
(a) a patent or utility model certificate has
been granted to him or her or to any other person in respect of any
invention; or
(b) he or she has been granted an exclusive or
non-voluntary licence to use any patent or utility model certificate;
which
statement or representation induces another person to act thereon, commits an
offence
|
Liable to a
fine of not less than five thousand dollars and not more than twenty thousand
dollars, or imprisonment for a term of not less than two years and not more
than five years, or both. [s.62(3)]
|
|
s. 62(4) Any
person who falsely represents that anything disposed of by him or her for
value is patented product or process
|
Liable to a
fine of not less than four thousand dollars and no more than ten thousand
dollars [s. 62(4)]
|
|
s. 62(8) Any
person who represents that a patent has been applied for in respect of any
article disposed of for value by him or her,
(a) and no such application has been made; or
(b) the application has been refused or
withdrawn;
commits an
offence
|
Liable to a
fine of not less than four thousand dollars and not more than ten thousand
dollars.
|
Topographies
|
s. 25 (1) Any
person who performs an act which is unlawful under section 6 commits an
offence
s. 6(2):
Subject to subsection (3) and to section 17, the effect of the protection of
a layout-design under this Act shall be to make the following acts unlawful
if performed without the authorisation of the right holder:
(a) the reproduction, whether by incorporation
in an integrated circuit or otherwise, of the protected layout-design in its
entirety or any part thereof, except the reproduction of any part that does
not comply with the requirement of originality defined in section 4;
|
Liable upon
conviction to a fine of not less than fifteen thousand dollars, but not more
than forty thousand dollars, or to imprisonment for a term of not less than
five years, but not more than ten years, or to both such fine and such
imprisonment. [s. 25(1)]
|
|
(b) the importation, sale or other
distribution, for commercial purposes, of the protected layout-design, an
integrated circuit in which the protected layout-design is incorporated, or
an article incorporating such an integrated circuit in so far as it continues
to contain an unlawfully reproduced layout-design.
|
|
|
s. 25(2) Any
person who, knowing the same to be false
(a) makes or causes to be made a false entry
in the Register.
(b) makes or causes to be made any document
falsely purporting to be a copy of an entry in the Register; or
(c) produces, tenders or causes to be produced
in evidence any such entry or copy thereof,
commits an
offence
|
Liable, upon
conviction to a fine of not less than ten thousand dollars, but not more than
thirty thousand dollars, or to imprisonment for a term of not less than three
years, but not more than ten years, or to both such fine and such
imprisonment. [s. 25(2)]
|
Geographical
Indications
|
s. 23(1) Any
person who knowingly performs any act referred to in section 13 commits an
offence
s. 13 (1) Any
interested person or group of persons may institute proceedings in the Court
to prevent, in respect of any geographical indication,
(a) the use of any means in the designation or
presentation of any goods, which indicates or suggests that the goods in
question originate in a geographical area other than the true place of origin
in a manner which misleads the public as to the geographical origin of the
goods;
(b) any use which constitutes an act of unfair
competition within the meaning of Article 10bis
of the Paris Convention;
(c) the use of a geographical indication
identifying wines for wines not originating in the place indicated by the
geographical indication in question, or identifying spirits for spirits not
originating in the place indicated by the geographical indication in
question, 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.
|
Liable on
conviction, to a fine not exceeding forty thousand dollars, or to
imprisonment for a term not exceeding twelve years, or to both such fine and
such imprisonment. [s. 23(1)]
|
22. Which public authorities are responsible for initiating criminal
proceedings? Are they required to do this on their own initiative and/or in
response to complaints?
The Commissioner of Police
initiates proceedings in the Magistrates' Court and the Director of Public
Prosecutions initiates proceedings in the High Court.
23. Do private persons have standing to initiate criminal proceedings
and, if so, who?
In St. Kitts
and Nevis private persons can initiate criminal proceedings only at the
Magisterial level. Section 31(1) of the Magistrate's Code of Procedure outlines
that "any person" may make a complaint against any person committing
an offence punishable on summary conviction unless it appears from the
enactment on which the complaint is founded that any complaint for such offence
shall be made only by a particular person or class of persons. None of the IP
laws restrict the initiation of criminal proceedings to public authorities.
24. Specify, by category of IPR and type of infringement where
necessary, the penalties and other remedies that may be imposed:
- imprisonment;
- monetary fines;
- seizure, forfeiture and destruction of
infringing goods and materials and implements for their production;
- other.
See answer to question #21
above.
25. Describe provisions governing the length and any cost of
proceedings. Provide any available data on the actual duration of proceedings
and their cost, if any.
See answer to question #8 above.
_________
[1] Document IP/C/5
"_https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@SymbolMatch="IP/C/5"+OR+"IP/C/5/*"&Language=English&Context=ScriptedSearches&languageUIChanged=true#".