Gustavo Frazao / Shutterstock.com
Businesses considering relocating to the Caribbean island of Barbados need to do their IP homework first, explains Rosalind Smith Millar of Clarke Gittens Farmer.
Barbados is the easternmost Caribbean island, a tropical paradise which has a mild climate all year round and few natural hazards. With 166 square miles of land area and 60 miles of coastline, the island’s local population is only about 285,000.
Barbados welcomes more than one million visitors annually; about half are stayover visitors (who spend one or more nights) and the other half arrive on cruise ships (who do not usually stay the night). There is a strong offshore business sector, as Barbados is the business destination of choice for investors seeking a stable political and regulatory environment, tax incentives, a solid legal system with an independent judiciary, sound physical infrastructure and telecommunications systems, established air and sea connections to major international hubs, a well-educated labour force, highly trained professional service providers, and modern, reliable healthcare facilities and professionals.
Why should companies obtain IP protection in Barbados?
Visitors and ex-pats living in Barbados have grown accustomed to finding their familiar brands while visiting or working in Barbados, from luxury goods to food and beverages and basic necessities. Local consumers have also developed a taste for foreign goods and foods, and most consumer goods and food items are imported; the value of imports is more than three times that of exports.
About 1,500 trademark applications are filed in Barbados annually, but fewer than 10% of these are from local applicants, and this gives a good indication of the prevalence of foreign imports from all over the world into the island. That means fierce competition among brand owners for a share of the action.
The internet is a feature of daily life across the island, so there is widespread access to goods and services online. Internet-based commerce is common. Intellectual property rights owners are therefore well advised to protect their brands, technologies and other IP rights from piracy and infringement.
What are the major IP considerations for companies looking to relocate to Barbados?
Before relocating to Barbados, the business owner should ensure that all IP rights to be exploited by the new Barbados entity are properly registered both in the country of origin as well as in Barbados. These will include primarily trademarks, patents and industrial designs.
Depending on the nature of the business, the IP rights to be used may include geographical indications (GIs), integrated circuits and plant varieties. If the purpose of the new entity is to use trade secrets, the proper agreements and safeguards must also be put in place.
The relocating business must also ensure that it is properly constituted and authorised to do business in Barbados. One cannot just arrive on an aeroplane and set up shop.
What advice do you have for anyone looking to secure IP protection?
Before relocating to Barbados, the prudent business owner should seek advice about a range of issues that will affect the ease of relocation, from legal and tax issues to more practical personal issues such as immigration rules, availability of housing and schooling.
The legal issues will, of course, include consideration of protection for IP rights, competition issues, and ease of access through the internet and physical travel to and from the island. It is far better to secure IP rights ahead of relocation than to arrive just in time to realise that there are prior local rights in place, or to engage in a fight against piracy or counterfeiting.
Contact a local IP specialist for specific advice, and make this advice part of the decision-making and budgeting process.
What are the common IP mistakes that companies make when relocating?
Like anywhere else in the world, most people are good law-abiding folk, but there are also a few bad apples in the mix. The so-called bad apples may be deliberately bad, or they may just be ignorant of the fact that they are doing something wrong in using someone’s IP rights. It is naïve to think that, because one is moving to paradise, one can be careless with one’s property, whether tangible or intangible.
Just as anyone would protect and secure his or her physical person and property, one should protect and secure IP. Leaving IP protection as an afterthought can be a costly mistake to make.
For example, you decide to relocate to Barbados with a view to marketing your super-special product or service on arrival. As a natural growth strategy for the business, it is important to think ahead and extend the business plan into the future as well as physically outward into neighbouring potential markets.
Some people think—mistakenly—that the Caribbean is a single legal jurisdiction. It definitely is not, but there are strong cultural and trade relationships within the region. Care should therefore be taken to consider those relationships and the effect they may have on your business plan. You should clear prior rights in the major potential regional markets before committing to a business plan for relocation.
How robust is the nation’s IP framework?
Barbados has a robust IP framework in terms of good legislation, a solid regulatory environment, and an honest legal system with an independent judiciary. However, in reality, the size of the jurisdiction and the fact that most consumer goods and services are imported mean that many IP disputes are settled abroad and what reaches us is the net result of overseas negotiations, settlements and court decisions. Our ability to develop a solid body of local jurisprudence in the area of IP is therefore somewhat limited.
Local IP laws are compliant with the TRIPS Agreement (and some TRIPS-plus) requirements, and provide protection for trademarks, patents, industrial designs, integrated circuits, GIs, new plant varieties, trade secrets and unfair competition.
Barbados is party to several international treaties that require a robust system of protection for the rights of IP owners.
Are there any nuances to the IP system that rights owners should be wary of? What other IP complications might there be for companies that are relocating?
Some economic factors slow the pace of registering trademarks and processing other applications at the Corporate Affairs and Intellectual Property Office. This is frustrating for IP rights owners and the practitioners who assist them through the process. For this reason, a relocating business should start the process of obtaining registration as early as possible.
What help is available to IP owners?
Clarke Gittens Farmer (CGF) is a full-service commercial law firm which can provide sound legal advice on corporate structuring, commercial transactions, IP protection and, if all else fails, litigation matters in Barbados. As the exclusive Barbados member of Lex Mundi, the world’s leading network of 160 premier independent law firms with in-depth experience in more than 100 countries, CGF can provide indigenous insight, innovative solutions and cross-border connectivity to achieve an integrated relocation strategy.
Rosalind Smith Millar heads the IP department of Clarke Gittens Farmer, and specialises in IP law and real property law. She holds a master’s in IP law, and has been a member of the local IP advisory committee for many years. She can be contacted at: email@example.com
Rosalind Smith Millar, Clarke Gittens Farmer, brands, IP, patent, trademark, copyright, GIs, TRIPS Agreement, unfair competition, trade secrets,