21 February 2013

Caribbean IP Part 28: Bermuda

ISO 3166 country code: BM.

Bermuda is the oldest colony of the United Kingdom being a colony of England prior to its unification with Scotland. It is now the most populous of all the British Overseas Territories, with around 65,000 people.

Despite its proximity to the United States and Canada, it remains fairly pro-British and its last independence referendum was easily defeated. However, if the referendum was repeated today the result may not be so clear cut.

The relative isolation of Bermuda means it is not strictly a part of the Caribbean although it is an associate member of the Caribbean Community (CARICOM). It is a high income island driven by the finance and tourism sectors.

As the island is non-sovereign and not independent it is not in a position to accede to International arrangements such as the Madrid Protocol without the United Kingdom legislating for them in this respect.

However, it has a local trade mark system in place. It is not a prerequisite to have a United Kingdom trade mark registration in order to register a trade mark in Bermuda, although it does have persuasive value before the local Registrar under section 18(4) of the local Trade Marks Act.

When it comes to registered designs, Bermuda also allows for local registration. With respect to UK Registered Design rights these provide for automatic protection to Bermuda. There could be a defence for infringers if they could not know of the design in Bermuda which suggests that if there is no use or disclosure of such a design in Bermuda (for example, in the UK only), then the owner of the UK design may be prevented from taking action locally in Bermuda. As the law has not been amended accordingly, it is unlikely the same protection and provisions are given for Registered Community Designs.

The Registry General administers IP rights on the island. Their website provides some general information on intellectual property specifically on how to file applications. Examination of trade mark applications is not lax and objections will be raised according to the law if the Examiner feels it is justified, yet the processing of trade mark applications is organised and timely.

As a high income society, Bermuda is a potentially lucrative market to many trade mark owners. It is important that its location means it is not inadvertently omitted from any filing programmes for the Caribbean and/or North America.