Three new Caribbean jurisdictions: Curaçao, St. Maarten and the BES Islands

Echoing Aruba’s breakaway from the Netherlands Antilles in 1986, Curaçao, St. Maarten, and the BES Islands were constituted as separate jurisdictions—all with provisions for the establishment of intellectual property rights.

Trademark registrations in the Netherlands Antilles were nullified while, simultaneously, all marks registered there were deemed automatically continued for the duration of their terms in both Curaçao and St. Maarten.

On the other hand, in the BES Islands, which consist of Bonaire, St. Eustatius and Saba, Netherlands Antilles registrations can be confi rmed and deemed continued in the BES, for the duration of their terms, provided applications for confi rmation are fi led before October 10, 2011.

Location and status of Curaçao, St. Maarten and the BES Islands

All three new jurisdictions are in the Caribbean. Made famous nearly half a century ago in international legal circles by its ‘Dutch Sandwich’, a tax reduction device, the Netherlands Antilles comprised five islands: Curaçao, St. Maarten, Bonaire, St. Eustatius and Saba.

Two of the islands, Curaçao and Bonaire, are located just off the coast of Venezuela, and the other three are southeast of the Virgin Islands in the northeast Caribbean. Although the BES consists collectively of Bonaire, St. Eustatius (commonly known as ‘Statia’) and Saba, Bonaire is situated more than 500 miles south of St. Eustatius and Saba, which are only 17 miles apart.

Like Aruba, Curaçao and St. Maarten became autonomous states within the Kingdom of the Netherlands, while the BES Islands reverted to becoming ‘special municipalities’ of the Netherlands. Their status will be reviewed in five years.

Trademark law and administration

Each jurisdiction will have its own trademark law, while the Netherlands Antilles statute continues to apply on a temporary basis. The administration of intellectual property has likewise been fractured and reassigned, with Curaçao now having, and St. Maarten planning to have, its own IP office.

Meanwhile, for both Curaçao and St. Maarten, the Curaçao IP office, which previously served the entire Netherlands Antilles, will continue to administer the still applicable Netherlands Antilles law—across the same desks of the same administrators, in the same office, in the same building.

BES intellectual property, on the other hand, is administered from Europe, in the Benelux Office for Intellectual Property (BOIP).

New registrations in the new jurisdictions

All new trademark applications must be filed separately in each of the three new jurisdictions. In Curaçao, new trademark applications are filed directly with the Curaçao Intellectual Property Office (Curaçao IPO). Registrations are valid for 10 years and may be renewed for further periods of 10 years.

Until St. Maarten assumes administration of its own intellectual property, new trademark applications will continue to be governed by the old Netherlands Antilles law and filed for St. Maarten at the Curaçao IPO. Registrations are likewise valid for 10 years and may be renewed for further periods of 10 years.

Applicants must file separate applications for registration in each jurisdiction and submit separate powers of attorney and fees for each jurisdiction.

For the BES Islands, new trademark applications are filed with BOIP. Registrations are likewise valid for 10 years and renewals are for further periods of 10 years.

All applications pending on October 10, 2010, will automatically be extended in Curaçao and St. Maarten or can be confirmed in the BES.

In all three jurisdictions, Paris Convention priority may be claimed, and goods and services are classified according to the Ninth Edition of the Nice Classification. The official fees to register a mark vary greatly: for up to three classes, Curaçao charges $429, St. Maarten $214, and the BES $310.

International registrations

As announced by the World Intellectual Property Organization in Information Notice No 14/2010, international registration and application designations that were filed for the Netherlands Antilles before October 10, 2010 will automatically be extended to Curaçao, St. Maarten and BES. Any international applications filed subsequently can designate any or all three of the new jurisdictions. Also, owners of existing international registrations may designate any of the three new jurisdictions.

Renewals and the recording of other transactions

Any renewal application filed after October 10, 2010 must be addressed separately to each of the three new jurisdictions—a single renewal application will not suffice—and each jurisdiction requires a separate fee and power of attorney.

To renew a registration in the BES, the mark must first be confirmed, as above, by an application filed prior to October 10, 2011. The registers of existing trademarks may be updated by the recording of changes of name and address, assignments, licences, mergers and other transactions—also by separate application to each jurisdiction.

The official fees to renew a registration also vary greatly: Curaçao charges $429, St. Maarten $214 and the BES $335.

Courts and currency

The former Joint Court of Justice of the Netherlands Antilles and Aruba has been reconstituted as the Joint Court of Justice of Aruba, Curaçao, St. Maarten and of Bonaire, St. Eustatius and Saba, and the Supreme Court of the Netherlands, sitting in The Hague, will continue to exercise ultimate jurisdiction over all of these territories.

The new Caribbean guilder will next year replace the Netherlands Antilles guilder in both Curaçao and St. Maarten, while the BES Islands have already commenced using the US dollar as their official currency—much like the nearby British Virgin Islands, a British ‘overseas territory’ that 50 years ago adopted the US dollar as its official currency.

Languages: Dutch, English and Papiamento

Multiculturalism prevails in all the new jurisdictions. In 2007, after a decades-long debate, both English and Papiamento were made official languages, alongside Dutch.

George C. J. Moore is a barrister and attorney at Caribbean Trademark Services. He can be contacted at: barrister@barrister-law.com