In Barbados, the protection of signs which ought to remain available for public use can be found under statute (Trade Marks Act) or by the office practice of the Corporate Affairs & Intellectual Property Office (CAIPO). There are many signs which ought to remain available for use by all persons. Some include signs such as lottery, ‘bajan’, candy, insurance, international, designs of drops or splashes of liquid, a beam of light, etc. These signs are fee for use by all business entities.
Under the Trade Marks Act, Cap 319 of the Laws of Barbados, section 9 (1)(c) provides ‘… any mark that exclusively consists of a sign that has become, in current language or in the bona fide, and established practices of the trade or business in Barbados, a customary designation of the goods or services which the mark relates, the mark may not be registered.
Office Practice Protection
Signs not included in the above section, or which are beyond the scope of the section, are afforded protection through the use of disclaimers. The Registry may request that an applicant disclaim the exclusive right to the use of any sign, composing a mark, which ought to remain public for use.
The inclusion of signs, in a trademark, which ought to remain public domain signs may not immediately render a mark unregistrable but marks including such signs would have a hurdle to go over in order to be registered.
Section 9 (2) makes provision for a trademark to be registered which consists of public domain sign, where it can be shown that the sign has been in use for a lengthy period of time in Barbados or any other country and where the mark/sign has been held to be distinctive in any other country.
The entering of a disclaimer for a mark is generally always a disclaimer of the public sign apart from the mark as a whole/alone. Thus, the public domain sign together with the remainder of the mark and its ‘get-up’ remains in tack. The disclaimer simply prohibits the applicant for the mark from holding rights to the exclusion of all other to the use of the public domain sign. The submitting of a disclaimer would therefore allow the mark to be registered.
The registration of a mark which includes a public domain sign may therefore be possible where:
- the trademark is not made up exclusively of the public domain sign; and
- it can be shown that use of the public domain sign has been lengthy in Barbados or elsewhere and/or distinctiveness through use in any other country.
It should be noted that the entering of a disclaimer may be a stand-alone form of protection or it may be used in conjunction with the statute. Thus, the applicant for a mark which is not exclusively be made up of the public domain sign, has been used for a lengthy period of time and/or has acquired distinctiveness through use, may still be required to be submitted a disclaimer for the public domain sign apart from the mark as a whole.
The protection of public domain signs is important to the enabling of creativity and continuity of new businesses.