South Africa: Dissolution Of The Netherlands Antilles – Impact On Intellectual Property Rights

Last Updated: 20 July 2011
Article by Spoor & Fisher

The Netherlands Antilles, an autonomous Caribbean country within the Kingdom of the Netherlands, was dissolved on 10 October 2010.

After dissolution, Curaçao and 1St Maarten (see footnote below) became constituent countries within the Kingdom of the Netherlands - along the lines of Aruba, which had separated from the Netherlands Antilles in 1986. However, the BES islands (an acronym of Bonaire, Saba, and St Eustatius) became special municipalities of the Netherlands.

As a result, Intellectual Property ("IP") legislation in Curaçao, St Maarten and the BES islands has changed. Below is a summary of the situation:

Trade Marks

Curaçao and St Maarten

On 10 October 2010, under the provisions of Art.1 of the National Decree Transitional Provisions of Legislation & Administration, the National Trademark Act 1995 and the National Trademark Decree 2000 of the Netherlands Antilles became the trade mark legislation of Curaçao (CW) and the Dutch portion of St. Maarten (MN).

Contrary to earlier indications, it will not be necessary to reconfirm existing Netherlands Antilles registrations in these two islands. Those registrations will remain in effect until their next renewal, at which time renewal applications will have to be filed in Curaçao and/or St Maarten.

The Curaçao legislation now comprises The Curaçao Trademark Act and The Curaçao Trademark Decree. Existing Netherlands Antilles registrations will retain their registration numbers and will be automatically converted to Curaçao registrations. The former Netherlands Antilles IP Office is now the Curaçao Bureau of Intellectual Property.

The St Maarten legislation now comprises The St Maarten Trademark Act and The St Maarten Trademark Decree. Existing Netherlands Antilles registrations will retain their registration numbers and will be automatically converted to St Maarten registrations. The St Maarten IP Office has not yet been set up, and for a transitional one-year period, the Curaçao Bureau of Intellectual Property will manage the Register for St Maarten as well.

It is now possible to file new trade mark applications in Curaçao and/or St. Maarten.

The BES islands (also known as Caribbean Netherlands)

On 10 October 2010, new trade mark legislation, The BES Trademark Act ("Wet Merken BES, WMB") came into effect in the BES islands (BQ). It is closely modelled on the former legislation (the National Trademark Act 1995) of the Netherlands Antilles.

The Trademarks Office is managed by the Benelux Office for Intellectual Property, and both the Madrid Agreement and Protocol apply to the islands.

All existing Netherlands Antilles registrations must be reconfirmed before 10 October 2011 in order to remain in force in the BES islands. Simultaneous applications for renewal may be filed if appropriate.

International Registrations

Contrary to earlier indications, Netherlands Antilles (AN) designations filed or registered with the World Intellectual Property Office ("WIPO") before 10 October 2010 will automatically have effect in Curaçao, St Maarten and the BES islands. Going forward, new applications for IRs must individually designate the three new jurisdictions (CW, MN, BQ).

Patents

For the time being, Dutch patents are not affected by the changes, and no special measures are required. A Dutch patent, in the form of either a national application or a European patent designating the Netherlands will cover the Netherlands itself (now including the BES islands) as well as Curaçao and St Maarten. Aruba remains a separate entity for patent protection.

Summary

Former Netherlands Antilles trade mark registrations will be converted to Curaçao and St Maarten registrations automatically; and will retain their registration numbers. However, if Netherlands Antilles registrations are to be maintained in the BES islands, they will have to be reconfirmed before 10 October 2011 in order to remain in force.

International designations of the Netherlands Antilles filed or registered with WIPO before 10 October 2010 will be automatically transferred to Curaçao, St Maarten and the BES islands.

Currently, Dutch patents are not affected by the changes and no special measures are required.

Footnote

1 Please note that the French portion of St Martin is unaffected and remains a commune of Guadeloupe which is an overseas department of France.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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