As far as creating a legal framework to protect the fruits of their endeavors, it may appear sufficient to have the local notary do tradename search, incorporate a private limited company and file for a domain name reflecting the enterprise’s name. But this leaves the entrepreneur exposed to losing the rewards of his skill, foresight and industry, once his business truly takes off. Trademarks present an indispensable additional tool to retain this business value. And it’s “first come-first served”, so the first-mover is likely the only shaker.
Admittedly, “intellectual property” does not have a particularly appealing ring to the hands-on business person. Most entrepreneurs would gladly spend some time on additional marketing research or product development and defer walking the maze of legal concepts surrounding the protection of their brands.
So: let’s keep it down to a minimum and deal only with what needs dealing with. We will disregard unfair competition, patents, copyrights and the specific protection of drawings or models, for now.
Tradenames are not brands
Every business aims to present its value proposition under a gripping brand or logo to distinguish it from others and build its goodwill through its quality rendering. Let’s first get one misunderstanding out-of-the-way: tradenames are not brands. Doing a tradename search only gives a rough idea whether a name (or something looking or sounding like it) is currently registered at the trade-register. The search grants no legal protection and it does not give an indication whether the name is actually used in the market you are interested in. And yet, it is this usage that grants the user some legal remedies. So, if you file at the trade register, do also file your trade-names, and, moreover, start using them. But don’t expect much from the Courts if others start or continue doing the same: the BES-Islands have not adopted particular tradename-protection legislation. As a result, actions will have to be based in general tort-law, and their outcome will highly unpredictable. Finally, the trade-name only protects the name of the business-enterprise, not of its products.
Make your mark with your brand
This situation brings brand-protection all the more to the forefront. If cleverly done, one may even protect the tradename by protecting brands through trademarks. So, what are these? Trademarks are distinguishing traits of goods or services and can be registered. They can be either individual or collective (but we’ll skip the latter, here) and they can be words, logo’s and labels (often referred to as “devices”) and in some cases even shapes, colors and sounds. Primarily, to be registered, they need to be distinctive, but deceptive nor objectionable. This should not be an issue in most cases, as entrepreneurs should try to devise unique brands anyway in order to separate their proposition from that of their competitors, to assure its quality and as a means to advertise. Being deceptive or objectionable is never a good long-term strategy. Together with a tradename filing and a domain-name application, trademarks can go a long way in protecting or leveraging the value of your business. Registration creates an exclusive right to use the mark within a certain territory. This means that it can be protected against unauthorized use and, conversely, that use may be licensed for a fee (or that damages may be claimed if its use is not licensed). This may be another cash-flow stream to support your business model.
When and where
Trademarks provide protection as from their filing, so filing early is clearly an advantage. Filings are governed by the “Wet Merken BES”. For the BES-Islands, this Act replaced the “Merkenlandsverordening” in 2010. For the BES-Islands, registration can be made at the Benelux Office for Intellectual Property (BOIP), through the website www.caribie.nl. There, you can check whether the trademark is already taken. Many use a trademark specialist to do this and to make the actual registration, in order to avoid overlooking anything major and assure that the right product- and geographical markets are protected. There is a (modest, but non-refundable) registration- and maintenance fee to be considered. Having said all that, the registration process at BOIP is fairly straightforward and should not thwart anyone from registering. The registration at BOIP secures a registration in the Caribbean Netherlands. This registration can be extended to an international registration through the World Intellectual Property Organization (WIPO).