Consequences of the dismantlement of the Netherlands Antilles for trademark registration and protect

As you may be aware, on 10 October 2010, the Netherlands Antilles, comprising the islands of Curaçao, Sint Maarten, Bonaire, Saba and Sint Eustatius (the “Islands”), has formally ceased to exist. These reforms have a major impact on local legislation, which will also affect current and future trademark holders.

VanEps Kunneman VanDoorne would like to inform you on the current and (possible) future legal and practical framework for trademark protection on the Islands formerly comprised in the Netherlands Antilles.

Please find below an overview of the headlines of the consequences of the dismantlement of the Netherlands Antilles for trademark registration and protection on the different islands.

Curaçao
• Curaçao has become an independent country within the Kingdom of the Netherlands.
• The former Netherlands Antilles trademark legislation has continued to apply with some minor amendments in connection to the dismantlement.
• The former Bureau for Intellectual Property of the Netherlands Antilles (“BIP”), located in Curaçao, continued its activities as the IP/Trademark Office for Curaçao (“BIP Curaçao”) after the dismantlement.
• All Netherlands Antilles trademarks and applications for trademarks which were filed before 10 October 2010 are automatically converted into trademarks for the territory of Curaçao without additional costs for the trademark holder.
• Applications for new trademark registrations and applications for renewal of former Netherlands Antilles trademarks will have to be filed with the BIP Curaçao against payment of fees and only grant protection on the territory of Curaçao.
• On an international level, Curaçao has become a party to all the relevant Intellectual Property treaties to which the former Netherlands Antilles were a party, including the Paris Convention for the Protection of Intellectual Property, the Madrid Protocol concerning the International Registration of Marks, the agreement on trade-related aspects of intellectual property rights (“TRIPs”) and the Singapore Treaty on the Law of Trademarks.
• VanEps Kunneman VanDoorne will be authorized to act as a trademark attorney for Curaçao.

Bonaire, Saba and Sint Eustatius
• Bonaire, Saba and Sint Eustatius, hereinafter referred to as the BES-islands, will transform into a public entity (similar to a municipality) of the country The Netherlands. However, with regard to trademark matters the BES-islands - the three islands together -  constitute one separate jurisdiction.
• New trademark legislation has been implemented based on the former Netherlands Antilles trademark legislation. An important change is that trademark applications will no longer be checked and refused on absolute grounds (such as lack of distinctive capacity, violation of the public order and misleading trademarks).
• Although the BES-islands became a municipality of the Netherlands, Benelux and/or Community trademark registrations will not be extended to the BES-islands or visa versa. The BES-islands form a separate jurisdiction and have their own trademark legislation, entitled the BES Trademark Act (‘BTA’). The BTA provides for trademark protection on the BES-islands only. In order to have your trademark protected on the BES-islands your trademark needs to be registered on the BES-islands.
• The Benelux Office for Intellectual Property (the “BOIP”) in the Hague, the Netherlands will act as the trademark office for the BES-Islands.
• Trademark holders owing former Netherlands Antilles trademark registrations need to apply for a maintenance depot with the BOIP to enjoy continued protection for their trademark registrations on the BES-islands after 10 October 2010. A maintenance depot to keep Netherlands Antilles trademarks protected on the BES-islands can be filed until 10 October 2011. After expiration of the provided term, a trademark which has not been confirmed by filing a maintenance depot has lapsed with respect to the BES-islands as per 10 October 2010.
• Applications for new trademark registrations and applications for renewal of confirmed former Netherlands Antilles trademarks will have to be filed with the BOIP against payment of fees and only grant protection on the territory of the BES-islands. An application for renewal and a maintenance depot can be filed at the same time.
• The BES-islands have become a party to all the relevant Intellectual Property treaties to which the Netherlands Antilles formerly were a party, and to some additional treaties such as the Nice Agreement for the Classification of Goods and the Madrid Agreement on Registration of International Marks to which the Netherlands is currently a party.
• VanEps Kunneman VanDoorne will be authorized to act as a trademark agent for the BES-islands.

Sint Maarten
• Sint Maarten has become an independent country within the Kingdom of the Netherlands.
• The former Netherlands Antilles trademark legislation will continue to apply with some small amendments in connection to the dismantlement.
• The former Bureau for Intellectual Property of the Netherlands Antilles, located in Curaçao and now acting as the IP/ Trademark Office for Curaçao, will also operate as the IP/ Trademark Office for Sint Maarten (‘BIP Sint Maarten’) during a transitional period of one year (until 10 October 2011).
• All Netherlands Antilles trademarks and applications for trademarks which were filed before 10 October 2010 are automatically converted into trademarks for the territory of Sint Maarten without additional costs for the trademark holder.
• Applications for new trademark registrations and applications for renewal of former Netherlands Antilles trademarks will have to be filed with the BIP Sint Maarten against payment of fees and only grant protection on the territory of Sint Maarten.
• On an international level, Sint Maarten has become a party to all the relevant Intellectual Property treaties to which the Netherlands Antilles were a party, including the Paris Convention for the Protection of Intellectual Property, the Madrid Protocol concerning the International Registration of Marks, the agreement on trade-related aspects of intellectual property rights (“TRIPs”) and the Singapore Treaty on the Law of Trademarks.
• VanEps Kunneman VanDoorne will be authorized to act as a trademark attorney for Sint Maarten.

International Registrations
• As a result of the aforementioned, international registrations which contained a designation of the Netherlands Antilles continued to have effect in the three new territorial entities, Curaçao, Sint Maarten and the BES-islands, as from 10 October 2010. Furthermore, international applications containing a designation of the Netherlands Antilles, which are pending, and which are registered with a date which is prior to 10 October 2010, will be recorded with respect to the three new territorial entities. In each case, the applicable legislation will be the corresponding legislation for the territorial entity concerned.
• In case an international registration, designing the Netherlands Antilles, has been notified prior to 10 October 2010 to the Bureau for Intellectual Property of the Netherlands Antilles, the trademark authorities of the new territories will abide by the refusal period of one year from the date of the aforementioned notification. 
• As from 10 October 2010 international applicants and holders of international registrations may individually designate, or subsequently designate, under the Madrid Protocol, the territorial entities of Curaçao, Sint Maarten and/or the BES-islands.
• International applications or subsequent designations, which include a designation of the former Netherlands Antilles, and which would result in a date of registration or recording, respectively, later than October 10, 2010, will be deemed not to have included such designation of the Netherlands Antilles, and, accordingly, the fees paid with respect to such designation will be refunded.  International applications, which exclusively designate the former Netherlands Antilles, and which would have otherwise resulted in a date of registration later than October 10, 2010, will be deemed irregular.

VanEps Kunneman VanDoorne closely monitors the developments in intellectual property legislation. Our IP attorneys are in regular contact with the relevant government authorities, the BIP Curaçao, the BOIP, other trademark attorneys and trademark holders. Our IP attorneys are members of the Netherlands Antilles Trademark Association (“NATA”).

(Source: www.ekvandoorne.com)

30 June 2011

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