The World Intellectual Property Organization (WIPO) states that intellectual property (IP) is, “a powerful tool for growth and sustainable development, and acts as a catalyst for job creation, economic development and social vibrancy.”[1]
IP was brought to the forefront at the Uruguay Round, launched in 1986, to address issues which were not substantially covered by the 1947 General Agreement on Tariffs and Trade (GATT). On 15th April, 1994, parties signed the Final Act of the Uruguay Round and the Marrakesh Agreement establishing the World Trade Organization (WTO).
The WTO defines IP rights (IPRs) as “the rights given to persons over the creations of their minds.”[2] IPRs comprise industrial property and copyright and neighbouring rights. Industrial property includes patents for inventions, industrial designs for aesthetic creations or the appearance of products, trade marks for signs and logos which are capable of graphic representation, protection of new plant varieties for plant breeder’s rights, geographical indications for goods originating from a specific region or country that gives the goods a known quality, reputation or characteristic, integrated circuits for the arrangement of components on a semi-conductor and trade secrets for undisclosed information of commercial value.
Copyright subsists in literary and artistic works that are original intellectual creations whilst neighbouring rights subsist for performers, broadcasting organizations and producers of sound recordings.
Trinidad and Tobago, and several other Caribbean countries, are compliant with The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), having enacted a suite of IP legislation to fulfil its obligations (http://ipo.gov.tt/general/all-ipo-laws/). TRIPS constitutes one of the Annexes to the WTO Agreement regarding trade-related matters and is administered by the WTO. While the WTO Agreement provides the foundation for trade relations among members, as well as waivers to be taken in exceptional circumstances, TRIPS is a comprehensive multilateral agreement on IP which establishes minimum standards for the protection and enforcement of IP rights. Of particular significance is the obligation imposed by the most-favoured-nation principle, to treat the nationals of all members in an equal manner.
The importance of IP and its relationship with international trade was brought to the forefront during the COVID-19 Pandemic. Countries sought to address the IP challenges associated with research and development, as well as the cross-border impediments related to the movement of medical supplies and equipment.[3]
IP supports several components of our thriving Carnival industry which contributes to tourism and facilitates the export of our talent to the world. According to WIPO’s article, “IP value capture: fostering trade by capturing the value of creative industries in developing countries,”[4] Carnival attracts up to 15% of tourist arrivals and, “…has also been instrumental in fostering the country’s creative sector as well as its music and masquerade design exports.”[5]
Concerted efforts were made by Trinidad and Tobago to increase regulatory functions for enforcement bodies and border enforcement protection against counterfeit trade mark goods. By repealing the Trade Marks Act, Chap. 82:81 and proclaiming the Trade Marks Act No. 8 of 2015 with accompanying regulations, protection has been increased for trade marks and collective marks, among other things. In this regard, “Combatting Counterfeiting – An overview of Border Enforcement Measures for 2021,” reports, “During 2021, there have been quite a number of seizure actions conducted by Customs & Excise, primarily in the retail sector. These have led to the destruction of approximately over 16,600 counterfeit items over the period. These actions have also resulted in a number of ongoing trade mark infringement matters currently before the courts.”[6]
Trinidad and Tobago acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) which facilitates the filing of a trade mark in multiple countries which are party to the Protocol through one application in one language and in one currency. As such, the Madrid Protocol makes the management of brand protection in trade much easier (http://ipo.gov.tt/related-links-tm/madrid-protocol/). Notably, the National Export Facilitation Organization of Trinidad and Tobago (ExporTT) provides financing facilities to exporters who wish to file through the Madrid Protocol (https://exportt.co.tt/financing-facilities/). Other Caribbean Countries which are party to the Madrid Protocol include Antigua and Barbuda, Belize, Cuba and Jamaica.
The fight against the proliferation of counterfeit goods is ongoing. To this end, an Anti-Illicit Trade Task Force was constituted on May 17th 2021 in Trinidad and Tobago to achieve a number of objectives, including the strengthening of the legal framework to combat illicit trade, identifying and recommending legislation for review to ensure that illicit trade activities are effectively defined and addressed and bolstering the capacity of Ministries and enforcement agencies to combat illicit trade. The Trinidad and Tobago Intellectual Property Office (TTIPO), Office of the Attorney General and Ministry of Legal Affairs was mandated to develop a Customs Recordal System for IP rights, create an IP Enforcement Unit within the Trinidad and Tobago Police Service (TTPS) and conduct training sessions on IP enforcement and prosecution with the Customs and Excise Division and the TTPS. These undertakings will bolster the support for protection of IP works, not just in the creative industries, but throughout different sectors in our economy.
In addition to the foregoing, IP and trade obligations also underpin the EU-CARIFORUM Economic Partnership Agreement (https://trade.ec.europa.eu/access-to-markets/en/content/eu-cariforum-economic-partnership-agreement) and Partial Scope Agreements (https://tradeind.gov.tt/trade-negotiations/) which Trinidad and Tobago is a party to. In this respect, it is important to continue to include IP provisions in such agreements going forward as bilateral cooperation in the area of IP increases through Memorandums of Understanding (MOUs) between Trinidad and Tobago and other countries. For instance, there is great co-operation with the Instituto Nacional de Propiedad Industrial (INAPI) of Chile.
The National Intellectual Property Training Centre (NIPTC) of the TTIPO continues to provide educational services in relation to IP for the private and public sector in Trinidad and Tobago.
Trinidad and Tobago, through the TTIPO has made significant strides to modernise the services which it provides by providing a range of online services which are available online at http://ipo.gov.tt/general/online-services/. Of equal importance is the customisation of the WIPO IP Diagnostic Tool (https://www.wipo.int/ipdiagnostics/en/) which assists users, inclusive of small to medium enterprises, to identify their IP assets and provides them with a report with basic information on the management of such assets.[7]
The nexus between IP and international trade will continue to evolve as the landscape encounters new and emerging areas in IP.
Contributors:
Mr. Regan Asgarali, S.C. Controller, Trinidad and Tobago Intellectual Property Office, Ministry of Legal Affairs
Mrs. Lyrinda Persaud, Legal Officer II, Trinidad and Tobago Intellectual Property Office, Ministry of Legal Affairs
Graphic created by Mr. Nicholas Gayahpersad, Technical Examiner, Trinidad and Tobago Intellectual Property Office, Ministry of Legal Affairs
[1] https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1050_2021-chapter5.pdf
[2] https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm
[3] https://www.wipo.int/wipo_magazine/en/2020/02/article_0002.html
[4] https://www.wipo.int/wipo_magazine/en/2018/si/article_0001.html
[5] https://www.wipo.int/wipo_magazine/en/2018/si/article_0001.html
[6] https://trinidadlaw.com/combatting-counterfeiting-an-overview-of-border-enforcement-measures-for-2021/