Legal Framework

Legal Framework

Jamaica’s Telecommunications Regime

International Memberships

Jamaica is a member of the International Telecommunications Union as well as the Caribbean Telecommunications Union


Legislation

The principal legislation governing telecommunications in Jamaica is the Telecommunications Act, 2000. Other relevant Acts include the Radio and Telegraph Control Act, the Fair Competition Act, the Broadcasting and Radio Re-Diffusion Act and the Office of Utilities Regulation Act. The principal telecommunications regulator is the Office of Utilities Regulation (OUR).

The Spectrum Management Authority regulates the radio frequency spectrum on behalf of the Minister, while the Broadcasting Commission regulates the broadcasting and subscriber television industry primarily as a content regulator. The Government has consistently expressed an interest in creating a Super Regulator to regulate the converged sectors of telecommunications, broadcasting and spectrum management. To date no such regulator has been created nor has any legislation creating this regulator been tabled in Parliament.

However, the draft telecommunications policy (most recently update in February 2009) does make reference to a single regulator.
Please click link to download the Draft Policy.

While the Fair Trading Commission regulates competition it has tended to defer to the OUR in regulating competition in the telecommunications sector.

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Industry Profile

The Jamaican Telecommunications industry currently comprises carriers and service providers i.e. mobile carriers and mobile service providers ( which currently are the same licences,) internet service providers, data service providers, domestic carriers, domestic service providers, international voice service providers and international voice carriers.

There are 3 mobile providers: LIME formerly Cable and Wireless Jamaica, Mossel Jamaica trading as Digicel, and American Movil offering mobile service in Jamaica under the name “Claro”.

Jamaica’s first triple play telecommunications provider is Columbus Communications Limited operating Jamaica under the name “FLOW”. It offers island wide cable service, high speed internet access and telephony.

Prior to liberalization, in 2000, Jamaica’s teledensity was 17%, Cable and Wireless Jamaica, the telecommunications monopoly had 130,000 mobile subscribers and used TDMA technology. Jamaica’s teledensity is now over 100% with over 2 million mobile subscribers and the most widely used network is GSM.

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Road To Liberalization

The liberalization of the Jamaican Telecommunications market began in 1997 when Jamaica made market access commitments to the World Trade Organization in relation to basic telecommunications and value added services. In 1999 the Government tabled in Parliament a modern telecommunications policy which addressed such issues as the role of the regulator, negotiations with the public telephone company, liberalization, universal service, interconnection, and spectrum management.

On September 30, 1999, the Government of Jamaica signed a historic agreement with Cable and Wireless Jamaica, the then monopoly telecommunications provider, for the liberalization of the telecommunications sector in three phases over a three year period.

Consequent to the Agreement, the Government sought to jump start the liberalization process with the auctioning of 2 mobile telecommunications licences even before the necessary legislation was in place to grant the licences.

In December 1999, companies were invited to bid for the two licences which would be awarded as soon as the proposed Telecommunications Bill was passed. The Government determined that at least one of the licences should utilize GSM Technology. Cellular One Caribbean Limited emerged the winner of one of the licences with a bid of US$ 45 million, for the 800 Mhz band using CDMA Technology. This bid was US$5million dollars more than the Government’s reserve price. No winner was declared for the GSM licence as no bid exceeded the Government’s reserve price of US$30 Million dollars.

The Government of Jamaica then decided to hold a second auction in January 2000. Mossel Limited a start-up company owned by Irish entrepreneur Dennis O’Brian emerged the only successful bidder for the GSM licence with a bid of US$ 47.5 million dollars. This bid was US$17 million more than they had bid in December 1999.

On March 1, 2000, Jamaica’s new Telecommunications Act which repealed the Telephone Act of 1893 and sections of the Radio and Telegraph Control Act came into effect.

The liberalization of the Jamaican Telecommunications market was a 3 phase process. Phase One commenced on March 1, 2000 and was for a period of 18 months. During that time the Minister was only empowered to issue Cellular, Reseller (Data, Internet and International Voice), Free Trade Zone Service and Carrier licences.

Phase Two commenced September 1, 2001 and extended the Minister's power to grant licences to include domestic carrier and service provider licences as well as Internet licences for licensed cable operators.

Phase Three commenced March 1, 2003 and fully liberalized the Jamaican Telecommunications market.

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IP Regime In Jamaica

For a more detailed treatment of the intellectual property regime in Jamaica see Jamaica: Intellectual Property by Foga Daley Partner, Dianne Daley in International Encyclopaedia of Laws, Kluwer Law International, Intellectual Property - Suppl. 47 (September 2008)


COPYRIGHT LAW

History

As a former British Colony with a Common Law tradition Jamaica was governed by the Copyright Act of 1911 of the United Kingdom, the predecessor Imperial Statute which once applied in all the former Colonies of the Caribbean. Jamaica’s first local Copyright Act 1913 incorporated the UK Act of 1911 provisions on copyright offences and sanctions which otherwise would only have applied in the UK.

The UK Act of 1911 applied in Jamaica until it was repealed by the Copyright Act No. 4 of 1993.

Post independence (1962) lobby by the Jamaica Federation of Musicians and Affiliated Artistes Union, led to the tabling and passage of the 1977 Copyright Act, which was never brought into force. This Act did not grant any rights in performances or moral rights. Further lobby by the Union for a more comprehensive Law on copyright that would also address neighbouring rights led to the passage of the current principal Act of 1993. In addition to the Union, the other local copyright interest groups which lobbied for the Act were Book Publishers, Librarians and Performers.

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Current Law

The Copyright Act of 1993 was fashioned off the copyright and related rights provisions of the UK Copyright Designs and Patents Act of 1988 (CDPA).  However, the Copyright Act of 1993 incorporates of some provisions which are more akin to US Copyright Law than to British Copyright Law and has generally not followed the course of amendments to the CDPA although the Act of 1993 was amended in 1999. The Act of 1993 also stands almost on its own by not providing for statutory exceptions to the ownership of copyright in respect of works created in the course of employment.

The 1999 amendment of the Act of 1993 addressed a few deficiencies in the legislation measured against the requirements of Part II Section I of the TRIPS Agreement and implemented provisions of the Brussels Convention which was required under the Bilateral IP Agreement with the US. 

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Pending Amendments

A major development that is set to impact on the domestic copyright regime is Jamaica’s accession to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The treaties are slated to be implemented into Jamaican law by way of a Copyright (Amendment) Bill.

Jamaica’s membership to the WTO and, consequently, the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), also cemented its commitment to an international and modern standard of Copyright Protection.

Jamaica was the second English- Speaking Caribbean Country to accede to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) and is currently making revisions to its Copyright Act necessary for the implementation of these Treaties.

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Protection

The Copyright Acts of 1993 & 1999 provide the Berne and TRIPS standard of protection in terms of categories of works protected, the nature of rights, the scope of protection, the duration of rights, sanctions and penalties.

The Copyright (Amendment) Act of 1999 provides expressly for the protection of compilations of data or original databases, as mandated by the TRIPS Agreement. The 1999 Act also implemented obligations under the Jamaica/USA Bilateral IP Agreement pertaining to encrypted satellite signals by making it an offence to (without proper authorization) knowingly manufacture or trade in decoders of encrypted transmissions.

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The Government Copyright Office

The Copyright Directorate of Jamaica Intellectual Property Office (JIPO) handles policy and implementation of the Copyright Law.

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Collective Management Of Copyright In Jamaica

Copyright Tribunal

The Copyright Act of 1993 made provision for the establishment of a Copyright Tribunal.

Similar to the UK Copyright Tribunal, Jamaica’s Copyright Tribunal is designed to interface with user groups and collecting societies in the licensing of various rights. It provides a mechanism for the settlement of disputes relating to licensing schemes or licenses, which the parties have not been able to resolve otherwise.

The Copyright Tribunal may hear references concerning licensing schemes operated, or licenses granted by a licensing body in relation to the copyright in literary, dramatic, musical or artistic works or films (or film sound tracks when accompanying a film) which cover works of more than one author. Such licenses or schemes must concern the reproduction, public performance, broadcasting or cable casting of the protected work.

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Collective Management Organisations (CMOs)

For current information on Jamaican CMOs see: Progress Despite Challenges by Dianne Daley and Nicole Foga, Managing Intellectual Property, IP Focus, Americas 4th Ed. 2008 www.managingip.com

Five indigenous CMOs have been established in Jamaica pursuant to the Copyright Act of 1993, among which only the following three are currently active.

The Jamaica Association of Composers, Authors and Publishers (JACAP)

The Jamaican Copyright Licensing Agency (JAMCOPY)

The Jamaica Music Society (JAMMS)

Each is concerned with the administration of different types of rights under the Law. JAMMS replaced the Jamaican Musical Rights Administration Society (JMRAS) and the Jamaica Performers’ Administration Society (JPAS) is currently inactive.

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JACAP

JACAP administers the public performing rights of composers, authors and publishers in their musical works film synchronization rights and recording rights granted to copyright owners under the Act and licenses those rights to users in exchange for licence fees which are in turn distributed to its members and affiliates. Incorporated in early 1998, JACAP succeeded the local agency of the PRS (UK) that operated satellite agencies in former British Colonies like Jamaica.  JACAP is a member of the international collective management organization called CISAC.

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JAMCOPY

JAMCOPY administers the reprographic rights of authors and publishers of works in print media, which concerns licensing the right to make multiple copies/photocopies of such works. The Copyright Act generally restricts copying by a reprographic process.  Although copyright in literary works is not infringed by virtue of copying for instructional purposes such copying cannot be done by a reprographic process. Institutions providing tertiary education may make reprographic copies of passages from a published work for instructional purposes without infringing copyright but are limited to five percent (5%) of any work per quarter. This allowance is however rendered inapplicable where a licensing regime exists.

JAMCOPY is a member of the International Federation of Reproduction/Reprographic Rights Organizations (IFRRO) and has foreign reciprocal agreements with several equivalent RROs including Argentina, Australia, Belgium, Brazil, Canada, Finland, Greece, Iceland, Mexico, Slovakia, Spain, United Kingdom and Zimbabwe. JAMCOPY is currently in negotiations with several other countries including the United States of America.

For more information on JAMCOPY contact This email address is being protected from spambots. You need JavaScript enabled to view it..

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JAMMS

The Jamaica Music Society (JAMMS) is the newest indigenous CMO to be formed. Established in July 2006, JAMMS administers the broadcasting and public performance rights in respect of protected sound recordings and represents local and international sound recording copyright holders including independent record labels/record producers as well as the major international label groups and artist-owned labels. JAMMS took over from the now defunct Jamaica Musical Rights Administration Society (JMRAS)

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JPAS

JPAS was established in 2000 to administer the rights of performers in their live and fixed performances as granted under the Copyright Law. Under the Copyright Act, performers are not due any royalties for the public performance or broadcast of their performances as is the case for authors and publishers. At the time of the creation of JPAS, and even up until the present, under Jamaican law performers only have non-proprietary rights with most of their entitlements being dictated by contract.

JPAS lobbied for Jamaica’s accession to the WPPT but notwithstanding Jamaica’s accession in March 2002, the treaty has not yet been implemented. Having no substantive rights to licence on behalf of performer JPAS currently is inactive.

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Copyright Registration

There is no statutory registration system in Jamaica and no requirement for registration under the Copyright Act. However there is a nationally recognized voluntary copyright registration and deposit facility provided by the Intellectual Property Service Centre (IPC) in conjunction with National Library of Jamaica that copyright owners use to establish a public record of their claims of copyright.

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About the Intellectual Property Service Centre (IPC)

The IPC is a not for profit non-governmental organization with a Board of Directors comprised of representatives of the University of the West Indies, the Government Archives, the Jamaica Intellectual Property Office, the Media Owners Association of Jamaica and the Jamaican Copyright Licensing Agency (JAMCOPY).

IPC’s voluntary copyright registration facility is one of its core activities. Although there is no mandatory requirement for registration under Jamaica’s Copyright Law, voluntary registration is still encouraged for its value as a public record of copyright. IPC is currently serviced by volunteers.

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IPC Registration Procedures

The Copyright Claimant is required to fill out a voluntary declaration of the claim to ownership of copyright, containing a brief description of the work and the date and place of creation or first publication. The Declaration must be witnessed by a Justice of the Peace or in the case of a foreign applicant by a Notary Public.

The Claimant is also required to complete an IPC Copyright Claimant Form providing further details of the claim. A copy or true representation of the work must be provided to the IPC for deposit in the National Library.

The IPC makes a publication of the claim in the Jamaica Gazette, issues a certificate of registration and is available to support the certificate in evidence in the event such proof is needed by the copyright claimant in Jamaica.

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For Gazetted Copyright Claims in Jamaica
click on the year — 2008, 2009

For more information about Copyright Registration procedures and fees and to obtain the relevant forms contact the IPC at This email address is being protected from spambots. You need JavaScript enabled to view it.

Tel: 876 927 4376
Fax: 876 978 2338

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INDUSTRIAL DESIGNS LAW

For more details on industrial designs law in Jamaica see Design and Copyright Protection of Products World Law and Practice, Thomson, Sweet & Maxwell, 2005 and Jamaica: Intellectual Property by Dianne Daley, International Encyclopaedia of Laws, Kluwer Law International, Intellectual Property - Suppl. 47 (September 2008)

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Existing Legislation On Registered Designs

The Designs Act No. 32, July 1937,
The Designs (Amendment Act) No. 9-75, March 1975,
The Designs Rules, September 1937
The Designs (Amendment) Rules No. 171, December 1983

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Qualification for Protection

An industrial design as defined by the Designs Act is any design that can be applied to an article of manufacture or any natural or artificial substance, whether the design is applicable for the pattern, or the ornament thereof.

The Designs Act protects designs which are original and novel in Jamaica through a system of registration. Applications for registration can be made in respect of any of 16 classes of designs, with one application being made per class.

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Rights

The owner of a protected industrial design has the right to prevent third parties, not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy or substantially a copy of the protected design, when such acts are undertaken for commercial purposes.

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Duration

A registered proprietor of a design has copyright in the design for fifteen (15) years from the registration of the design.  There are no renewal periods or annuities for designs.

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International Compliance

The Designs Act of 1937 falls below the standards set by the TRIPS Agreement and the Paris Convention. Foreign applicants have not yet been able to take advantage of priority filings notwithstanding Jamaica’s accession to the Paris Convention. Although the Designs Act of 1937 was amended in 1975 those amendments merely transferred the administration of the registration system from the Registrar General to the Registrar of Companies. Designs are registered under an old system of classification with only 16 classes.

Similar to the Patents Legislation, the Draft Bill on Patents and Designs will repeal the existing Designs Legislation and incorporate provisions for compliance with the TRIPS Agreement.

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The Government Designs Office

The Designs Law is administered by the Trade Marks and Designs Directorate of Jamaica Intellectual Property Office (JIPO). This email address is being protected from spambots. You need JavaScript enabled to view it.

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LAYOUT-DESIGNS

For a more detailed treatment of layout-designs law in Jamaica see Jamaica: Intellectual Property by Dianne Daley, International Encyclopaedia of Laws, Kluwer Law International, Intellectual Property - Suppl. 47 (September 2008).

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Legislation

The Layout-Designs (Topographies) Act No. 30 of 1999 came into force on September 3, 1999. The Act was passed in fulfilment of Jamaica’s obligations under Section 6 of the TRIPS Agreement which obliges Members to provide protection to the layout-designs (topographies) of integrated circuits in accordance with particular articles of the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty) and to comply with additional standards of protection for layout-designs as outlined in Articles 36-38 of the TRIPS Agreement.

A layout-design (also described as topography) is the design element of a semiconductor chip or integrated circuit, several of which are used in the creation of computers and other electronic devices. There is no layout-design or semiconductor chip manufacturing industry in Jamaica and prior to 1999 there was no domestic legislation designed specifically to protect this form of design. No regulations have been promulgated under the Act.

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Qualification for Protection

In order to be protected under the Act the layout-design must be original in that it must result from the creator’s intellectual effort and must not be commonplace in the layout-design or integrated circuit industry at the time of its creation. Layout-designs which comprise a combination of elements and interconnections that are commonplace, can only be protected under the Layout-Designs Act “if the combination taken as a whole is original” in the sense outlined above.

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Rights

The rights in a protected layout-design comprise the exclusive right on the part of the owner to, and to authorize another person to, (a) reproduce the whole or part of the layout-design by any means, whether by its embodiment in an integrated circuit or otherwise, except to the extent that the layout-design is not regarded as original pursuant to section 4 (2) and (b) import, distribute or otherwise commercially exploit the layout-design or the integrated circuit in which it is embodied. Distribution includes selling, leasing, to bail or otherwise transfer or to offer to sell, lease, bail or otherwise transfer the layout-design or the integrated circuit in which it is embodied.

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Duration of Protection

Section 7 of the Layout-Designs Act provides that the layout-design right shall subsist for ten years from the date on which the layout-design is first commercially exploited. The period of protection ends at the end of the calendar year in which the right expires.

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No Registration

Under the Act there are no requirements for registration or other formalities. Once the qualifications for protection are met (i.e. the owner, or in the case of joint ownership, one of the owners is a Jamaican citizen or habitual resident of Jamaica or a citizen or habitual resident of a specified country) and the layout-design is original as outlined in section 4(2) and was not commercially exploited before the appointed day of the Act, protection is automatic.

With no registration system it has been difficult to ascertain whether this law is being utilized. No civil action has been brought in Jamaica under this Act.

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PATENT LAW

For a more detailed treatment of patent law in Jamaica see Jamaica: Intellectual Property by Dianne Daley, International Encyclopaedia of Laws, Kluwer Law International, Intellectual Property - Suppl. 47 (September 2008)

Existing Legislation On Patent Law

  • The Patent Act No. 30 of 1857,
  • The Patent (Amendment) Act No. 42-74, October 1974
  • The Patent (Amendment) Act No. 8-75, March 1975.

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Brief Background

The Patent Act of 1857 is the oldest domestic statute conferring intellectual property rights which is still in operation in Jamaica.

Under the Patent Act, Letters Patent are granted by the Queen of England, Queen Elizabeth the Second through Her representative the Governor General of Jamaica. In case of doubts with regard to its construction, the Patent Act may be construed by analogy to the laws in force in England relating to the granting of Letters Patent for inventions, in so far as the provisions of such laws are applicable.

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Qualification for Protection

Patentable subject matter includes an invention, discovery or improvements of some new and useful art, machine, manufacture or composition of matter. The person applying for a patent (The Petitioner) must declare that the invention, discovery or improvement has not been known or used in the Island before to the best of his/her knowledge, information and belief. Therefore the requirement that the patentable subject matter must be novel is restricted to local novelty as opposed to universal novelty.

Where products have already been patented in a foreign country they can still be patented in Jamaica so long as the period of patent protection in the foreign country has not expired. In this case the Jamaican Patent would last as long as the foreign Patent remains valid.

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Rights

The Patent Law grants the Patent Holder the full and exclusive right and liberty to make, construct, use and sell the new invention, discovery or improvement. These rights extend to the inventor or assignee, his executors and administrators. During the term of the patent no person shall without the consent, licence or agreement, of the patentee within Jamaica “directly or indirectly make use of or put in practice the said invention, or any part of the same or in anywise imitate the same, or make or cause to be made any addition thereto or subtraction therefrom whereby to pretend themselves the inventors thereof.”

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Duration of Protection

Letters Patent are granted for a period of 14 years. An extended term of a further 7 years may be granted.  There are no renewal periods or annuities for patents.

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International Compliance

Since its enactment the Act has only had administrative amendments in 1974 and 1975. The scope and nature of protection provided to the patent holder falls below the minimum requirements of the TRIPS Agreement.

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Priority Claims

The current Act does not recognize priority claims notwithstanding Jamaica’s membership to the Paris Convention. Hence all Patent Applications are assigned the Jamaican filing date and not the first filing date elsewhere.

A Draft Bill on Patents and Designs currently under consideration will repeal the existing Patent Legislation and will incorporate provisions for compliance with the TRIPS Agreement. It is also expected to provide for the implementation of the Patent Corporation Treaty.

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The Government Patent Office

The Patent Law is administered by the Patent Directorate of The Jamaica Intellectual Property Office (JIPO).

This email address is being protected from spambots. You need JavaScript enabled to view it.

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TRADEMARK LAW

For a more detailed treatment of trademark law in Jamaica see Jamaica: Intellectual Property by Dianne Daley, International Encyclopaedia of Laws, Kluwer Law International, Intellectual Property - Suppl. 47 (September 2008).

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Existing Legislation On Trademarks

Trade Marks Act of 1999 and Act of 2001

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Trademarks Rules of 2001

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Brief Background To The Trade Marks Law

The prevailing legislation on the registration of trade marks in Jamaica is the Trade Marks Act No. 32 of 1999 which came into force on September 3, 2001 and Act No. 25 of 2001 which introduced amendments by way of the JIPO Act Schedule 3. The Trade Marks Act of 1999 repealed the Trade Marks Act of 1958. Trade Marks Rules of 2001 replaced the Trade Marks Rules, 1958. The Trade Marks Act is similar to the UK Trade Marks Act of 1994.

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Qualification for Protection as a Registered Trademark

For a trademark to be registrable it has to meet the definition of a trade mark outlined in section 2 of the Act

Section 2 defines a trade mark as a sign “including a word (including a personal name), design, letter, numeral, colour, combination of colours or a combination of the foregoing or the shape of goods or their packaging that is capable of being graphically represented and capable of distinguishing the goods and services of one undertaking from those of another undertaking”.

Trade marks also include Collective Marks and Certification Marks. Collective Marks are trade marks that are owned by an association and which comport with special requirements laid down by that association. Certification Marks are trade marks which are to be used exclusively on products which meet certain requirements and possess the characteristics which qualify them for certification by the owner of the mark.

Well-known marks and Emblems of international organization are also protected under the Law.

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Classification System

Trademarks can be registered in respect of both goods and services based on the 45 classes outlined in the 8th edition of the International Classification of Goods and Services (Nice Classification) which extends to services in several fields including financial, business, law, construction and repair, transportation, education, telecommunications, entertainment, hotel, food, insurance, advertising and travel.

An applicant for a registered trademark can apply for the registration of one mark in several classes under a single application, with a reduced fee for the additional classes.

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Rights

The Trade Marks Act grants the proprietor of a registered trademark, exclusive rights in the trademark and any use of the mark in Jamaica without the proprietor’s consent constitute an infringement.

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Duration of Registration

A trademark is registered for an initial period of 10 years and can be renewed for successive ten-year periods upon the application of the proprietor and payment of the requisite renewal fees.

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Timeframes

On average the registration process takes 12-18 months. In the event of actions by the Registrar or Oppositions by third parties this period may be delayed.

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Priority Claims

The Act recognizes the right of priority in respect of trademark applications from nationals of members of the Paris Convention and allows for registration in electronic form. The right of priority allows an applicant for a registered trademark who intends to file applications in different Paris Convention countries to claim the date on which the first application was filed as the effective filing date in the subsequent applications in other countries. All subsequent applications have to be made within 6 months of the first filing date in order to claim priority.

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Enforcement

The Act provides a number of remedies to infringement of a registered trademark including an order for forfeiture of infringing items, destruction of infringing items, damages, injunctions, and account of profits.

The Act also empowers the Commissioner of Customs on the notice and request of a Trade Mark proprietor or licensee to prohibit the import of goods, which infringe a registered Trademark and further to this the goods may be forfeited.

The Merchandise Marks Act (1888) in conjunction with the Customs Act has been utilized to impose sanctions on certain actions in connection with Trademarks such as forgery of trademarks and false description of goods. The Merchandise Marks Act provides for fines and forfeiture of counterfeit goods.

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International Compliance

The Trade Marks Act complies with Jamaica’s obligations under the TRIPS Agreement and the Paris Convention. The Act conforms to obligations under the WTO-TRIPS Agreement as well as obligations under the USA/Jamaica Bilateral Agreement on Intellectual Property Rights.

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Proposed Amendments

Amendments to the Trade Marks Act together with the Rules promulgated there-under (the Trade Marks Rules 2001) have been proposed to address some of the deficiencies in the administration of the registration system as well as to introduce a few substantive changes.
This email address is being protected from spambots. You need JavaScript enabled to view it.

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The Government Trademark Office

The Trade Mark Law is administered by the Trade Marks & Designs Directorate of JIPO. This Directorate is the successor to the Intellectual Property Department of the Office of the Registrar of Companies.

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GEOGRAPHICAL INDICATIONS LAW

For a more detailed treatment of geographical indications law in Jamaica see Jamaica: Intellectual Property by Dianne Daley, International Encyclopaedia of Laws, Kluwer 2008

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Brief Background To The Geographical Indications Law

The Protection of Geographical Indications Act No. 5 of 2004 provides special protection to geographical indications in Jamaica. The Act comports with requirements of Articles 22 and 23 of the TRIPS Agreement giving geographical indications for wines and spirits greater protection than that which applies to geographical indications for other goods, leaving important local GIs with only minimal protection.

Under the Geographical Indications Act of 2004,  whereas geographical indications for all products are protected against false and misleading uses, geographical indications for wines and spirits are also protected against uses on a wine or a spirit not originating in the place denoted by the geographical indication even where the use is not misleading.  The legislation is not yet operational.  A number of procedural matters have to be prescribed by regulations which have not yet been promulgated.

Prior to the GI Act there was no separate statutory protection for geographical indications in Jamaica. Some protection is available for geographical indications and trade names though a combination of trade marks law, consumer protection laws, and the Fair Competition Act and at common law.  In respect of common law protection against misleading uses of a trade name or a geographical indication has primarily been afforded through the tort of passing off.

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Protection for Geographical Indications

A geographical indication (GI) is defined as:
“an indication which identifies a good as originating in the territory of a country, or a region or locality in that territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin” (Section 2).

‘Good’ means “any natural or agricultural product or any product of industry or handicraft” (Section 2).

Under the Act any interested party may apply to the Court to prevent the use of GIs:

  • on goods in a manner that misleads the public as to the true geographical origin of the goods
  • which amounts to unfair competition
  • identifying wines and spirits that do not actually originate in the place indicated by the GI even where the true place of origin is indicated and even where used in conjunction with “kind” “style” “imitation” “type” “comparable to” or other similar expressions.

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Offences and Sanctions

Misleading use of a geographical indication which is deliberate constitutes a criminal offence punishable in a lower court (Resident Magistrate’s Court) by a fine not exceeding one million Jamaica dollars and/or by imprisonment of a term not exceeding 12 months. If the matter is addressed in a higher court (Circuit Court) the fine is unlimited and the maximum term of imprisonment is 5 years. In addition either court may impose a pecuniary penalty where the court is satisfied that benefits were derived by or accruing to the offender from the commission of the offence.

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Registration

The Act protects unregistered geographical indications but also provides for a registration system to serve as prime facie evidence that a particular GI properly falls under the Act.

Any producer or group of producers may apply to register a geographical indication once they are carrying on an activity in the specified geographical area in relation to the goods specified in the application.

Producer” means:

  • producers of agricultural products
  • manufacturers of products of industry or handicraft
  • persons who exploit natural products and
  • persons dealing or trading in such products

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Exclusions

The Act excludes certain types of indications from protection and allows for exceptions in relation to indications that were in continuous use prior to a specified date. Trademarks containing or consisting of misleading geographical indications may be disallowed registration and, where already registered, may be revoked.

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Regulations

The Act provides for the promulgation of Regulations for the proper implementation of the provisions thereof including the procedures for registration of geographical indications.

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The Government Geographical Indications Office

The Geographical Indications Law is administered by the Trade Marks & Designs & Geographical Indications Directorate of JIPO. 

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