Multi-class applications are not supported by Bahamian trade mark law outside of specific circumstances. Due to dissimilar practices and confusion in the application of the law, the Registry has confirmed that there is no legal support to register multi-class applications for trade marks unless the mark is related to standardisation of goods.
Value Added Tax was implemented in The Bahamas as of 1st January 2015 with the standard tax rate of 7.5%. The introduction of this tax impacts Intellectual Property services supplied in The Bahamas. Where rights are to be enforced inside The Bahamas, the legal fees will be subject to VAT at 7.5 % unless holders of rights or assets want to select The Bahamas as the governing law jurisdiction. The nature of the system is far-reaching. Unlike other jurisdictions, such as the EU, where goods and services sold to customers outside of the EU are normally not subject to VAT, VAT does apply to IP services sold to customers outside of The Bahamas. For more information, see here.
The IP Committee, formed in November 2013 and co-chaired by Katina Mosko, has been holding meetings to address members’ concerns over the wide ranging requests for disclaimers that issued from the IP Registry. Speaking to the issues, the executive members met with the Registrar and the Deputy Registrar to understand the exercise of this discretionary power – especially in applications which had been unconditionally approved and published as well as those requested on renewals. In response, the Deputy Registrar has explained that the files are undergoing a second review as some of the requests for disclaimers may have been sent in error. This meeting demonstrates a collaborative relationship between industry and the IP Registry.
The Bahamian Registry made headway in modernising its system by starting to make the advertisements of accepted trade mark applications for registration electronically available. (April, May and June of this year are available online.) Since April, the format of the Gazette changed from the Official Gazette Bahamas (Supplement Part III) to the Bahama Journal newspaper.
Previously when applications for the registration of trade mark, patent and design copyright applications were accepted by the Registrar, they were advertised in the Official Gazette Bahamas (Supplement Part III) which, among other areas, provides booklet editions dedicated solely to IP publications. The format and medium regarding trade marks has changed as publications of this information will now appear in the Bahama Journal newspaper. The archival durability and quality are not of the same standard that practitioners had become accustomed to. Based on this, the electronic availability of the Gazette is of importance.
The Registry has begun to issue a considerable number of disclaimer requests in relation to trade mark applications for registration as well as registrations applied for renewal. The Registrar’s discretionary power is being applied in such an extensive way that the common law tort of passing off may prove to be a more authoritative and effective legal remedy than trade mark registration. This much is apparent for trade mark registrations that disclaim the entire mark or elements of the mark that are neither descriptive nor generic and are not devoid of distinctiveness. The choice of certain wording in the Trade Marks Bill of 2013 concerning when disclaimers may apply is unlikely to clarify the situation.
Along with other areas of IP, the legislation on trade marks will be updated. The Trade Marks Bill of 2013 (which will replace the Trade Marks Act of 1906) makes provision for service marks as well as accommodating the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957 as revised. These amendments will avoid having to shoehorn goods and services into outdated classes. The new Classification will be far more expansive and advance trade mark registrations in The Bahamas by adopting a classification system which corresponds with the 21st century.