RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/325/Add.1
26 November 2001
(01-6029)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Barbados to questions posed by Switzerland
Addendum
By means of a communication from the Permanent Mission of Barbados dated
23 November 2001, the Secretariat has received the following responses to questions posed by
Canada, as circulated in document IP/C/W/315.
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A. TRADEMARKS
1. Please explain how your legislation implements  Article 62.2 of the TRIPS Agreement.  Please
indicate how long it takes on average to register a trademark.  Please cite the relevant provisions of
your law.
Under the provisions of section 19 of the Trade Marks Act Cap. 319 of the Laws of Barbados,
the grant and registration of the rights of the holder of the Mark are to be registered, once the
requirements of the Act are satisfied.  The relevant section reads:
"After all requirements of this Act governing the registration of a mark have been complied
with in the case of an application, the appli cant is entitled, on payment of the prescribed fee,
to have the mark registered under this Act."
Provided that the application is in order in all respects, and there are no oppositions to the
application, a trademark is registered, on average, approximately seven (7) months after the date ofreceipt of the application, inclusive of publication in the Official Gazette of the mark.  Both the Trade
Marks Act and the Trade Marks (Amendment) Act 2001, have been notified to the World Trade
Organization.
B. 
PATENTS
2. Does your legislation grant patent protection for inventions relating to products and
processes in all fields of technology?  Are there any exceptions?  If so, please explain what these
exceptions are and how they comply with Article 27 of the TRIPS Agreement.
The Patents Act 2001 does not grant patent protection in all technological fields. For instance,
the protection of plant varieties as contemplated in Article 27.3 is not considered under the Patents
Act, but instead under the provisions of the Protection of New Plant Varieties Act 2001.  Section 11
of the Patents Act provides that:
"(1) Whether or not they constitute an inve ntion within the meaning of this Act, the
following are not patentable under this Act, namely,
(a) discoveries, scientific theories and mathematical methods;IP/C/W/325/Add.1
Page 2
(b) schemes, rules or methods for
(i) the carrying on of business;(ii) the performing of acts of a mental nature only; or(iii) the playing of games.
(c) methods for treatment of human beings or animals by surgery or therapy;(d) diagnostic methods practised on human beings or animals;
(e) plant varieties, animal varieties and essentially biological processed for the
production of plants other than microbiological processes and the products of
those processes; or
(f) an invention, the commercial exploitation of which would be contrary to
public order or morality or which is prejudicial to human or animal health or
to plant life or the environment.
(2) Paragraphs (c) and (d) of subsection (1) do not extend to products invented for use in
the methods referred to in those paragraphs."
The exceptions contained in paragraphs (a) and (b) do not fall within the definition of
patentable development as set out in Article 27.1 of the TRIPS Agreement.  Paragraphs (c) to (f) were
drafted in accordance with the provisions of Article 27.3 of the TRIPS Agreement.  The Patents Act
2001 has been notified to the World Trade Organization.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
No.  Please refer to our answer to question 4.
4. Does your legislation make the granting of a compulsory licence subject to all the conditions
enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of law.
The Patent Act 2001 makes provision in section 49 for the issuing of compulsory licences in
accordance with Article 31 as follows:
"(1) Where:
(a) the exploitation within Barbados of an invention protected by patent is, in the
opinion of the Minister, necessary
(i) in the interests of national security;(ii) in the interests of national health;
(iii) in the interests of national nutrition;
(iv) in the interests of the development of an essential sector of the
economy of Barbados; orIP/C/W/325/Add.1
Page 3
(v) for other public interests;
(b) the High Court has determined that the manner of exploitation by the owner
of a patent or his licensee is anti-competitive,
the Minister may, without the consent of the owner of patent, but subject to the
payment of a reasonable amount for the exploitation, authorize by order the
exploitation of the invention in Barbados by the Crown, by a government agency or
by any person named in the order."
The section goes on to set out in exact detail the process by which such authorization will be
made, and these provisions are similar to the provisions of Article 31 in terms of the payment of the"reasonable amount" the minister is to take into account the economic value of the patent and the need
to correct anti-competitive practices.
As a safeguard to the owner's interests, any requ est to the Minister for a grant of a compulsory
licence must be accompanied by evidence that a request for a contractual licence was made to theowner, but the requesting party is unable to obtain the licence on reasonable commercial terms and in
a reasonable time.  The jurisdiction for the review of  the grant of the licence is vested in the High
Court.  All other provisions are in accordance with Article 31 in full.  This Act has been notified to
the World Trade Organization.
5. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
There is no reversal of the burden of proof before the High Court under these circumstances.
C. 
PROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market authorisation of
a pharmaceutical or of an agricultural chemical product is protected against disclosure and against
unfair commercial use by a competitor, for example by prohibiting a second applicant from relying
on, or from referring to the original data of the first applicant, when applying subsequently for market
authorisation for a similar product.  Does your legislation provide for exceptions to this?  If yes,under what conditions would such exceptions apply?  Does your legislation set a specific term of
protection for undisclosed test or other data of the first applicant?
Section 4(1)(b)(ii) of the Protection Against Unfair Competition Act 1998 makes explicit
provision for the definition of acts of this nature as "unfair competition".  The relevant section reads:
"The following acts are acts of unfair competition:(b) any act or other conduct that consists of or results in an unfair commercial use:
(i) by a competent authority, or
(ii) by other persons as a result of the improper disclosure by a competent
authority,
of secret tests or other data concerning pharmaceutical or agricultural chemical products that
utilise new chemical entities the origination of which requires considerable effort and which
data have been submitted to the competent auth ority for the purpose of obtaining approval for
the marketing of such products."IP/C/W/325/Add.1
Page 4
The Act does not make any exceptions to this rule, nor does the Act contain any specified
duration of protection for undisclosed test or other data.
D. ENFORCEMENT
7. Please indicate remedies provided by your legislation which constitute effective deterrents to
infringements of intellectual property rights.
Please see our responses to the Checklist of Issues on Enforcement1 for answers in relation to
the Trade Marks Act and the Copyright Act respectively.
In terms of the Protection Against Unfair Competition Act, section 4(3) provides that:"Any officer of the competent authority who contravenes subsection (2) is guilty of an
offence and is liable on summary conviction to a fine of $10,000.00 or to imprisonment for a
term of 2 years or to both such fine and imprisonment."
Civil remedies are dealt with in detail in the responses to the Checklist of Issues on
Enforcement.
1
8. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.
In the past year, the Government of Barbados has undertaken several training programmes to
sensitise its enforcement personnel on matters concerning the enforcement of intellectual property
laws.  In particular, assistance from the World Intellectual Property Organization (WIPO), the World
Customs Organization (WCO) and the Business Soft ware Alliance (BSA), has made it possible for
local officials to receive training in product identification, evidence gathering, drafting of criminal
charges, search and seizure techniques, and future trends in intellectual property law and enforcement.
This training has enabled the Customs Department and the Royal Barbados Police Force to
detect, investigate, and prosecute several cases relating to infringement of intellectual property rights.
In addition, a programme of public education has made the populace of Barbados more aware of the
need to respect and protect these rights, as well as knowledge of basic notions of intellectual propertythat is intended to allow the ordinary citizen to be able to inform the police and customs officials of
the existence of infringing articles within the community.
Future programmes include the intensive training of local enforcement officers by way of
study visits to other forces and departments, along with the development of closer ties withnon-governmental organizations and Government  departments in other countries with more
experience of detection and prevention of organised infringement and piracy. The public education
will be continued indefinitely, in order to further enlighten the population about intellectual property.
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1 Document IP/N/6/BRB/1.