Does Aruba has its own Patent Act ?
Yes, Aruba has its own Patent Act (A.B. 1997, 29) which entered into force on April 1st, 1995.
What is the procedure when filing a petition for a patent ?
To obtain registration of a patent in Aruba the applicant has to file a request in duplicate. A power of attorney signed by the applicant, should be submitted.
Applications will be considered not filed as long as the application fee has not been canceled. Said application is not reimbursable. Applications must be filled out on forms fixed by the Bureau.
For a small ( petty) patent a non-international innovation research submitted to the Bureau of Intellectual Property in Aruba must be effected.
In case of a normal patent a world innovations research must be effected which is submitted to the European Patent Office in the Netherlands.
If one of the available type of patents is obtained, the rightful owner or party entitled must pay a maintenance fee until the sixth or twentieth year.
What protection do I get ?
The registration of a patent for invention gives exclusive right of use to the titlebearer to prevent or exclude others from unauthorized making, using or selling of the patented invention within the island of Aruba and its territorial waters during the term of the patent. The registration essentially gives procedural advantages allowing for infringement control.
The rights can be enforced in court against third party infringers who practice the invention without permission of the patentee.
Anyone who wishes to exploit the invention must obtain the authorization of the owner of the patent to exploit the invention.
Anybody who exploits the patented invention without his authorization commits an illegal act. The patentee is protected against exploitation of the invention which he has not authorized.
Does Aruba effectuate an international search ?
Yes, in order to obtain a normal patent (protection for 20 years) in Aruba an international search (a world innovation search), which is submitted to the European Patent Office in the Netherlands, must be effectuated.
What kind of patent can be granted by the Bureau of Intellectual Property in Aruba ?
Two types of patent are available:
1. a small (petty) patent through a registration procedure with a protection period of 6 years, as of date of filing. No world innovation search is necessary.
2. a normal patent subject to newness search (world innovation search) based on world-documentation granted for 20 years, as of date of filing.
Protection of both types of patent is subject to the payment of annual maintenance fees until the sixth or twentieth year.
Am I protected in Aruba if I already have been granted a patent in the Netherlands Antilles or in the Netherlands ?
No, until April 1st, 1995 the Kingdom Patent Act used to handle patent affairs for the territory of the Kingdom of the Netherlands, thus including Aruba.
Since April 1st, 1995 to be protected in Aruba the applicant has to file a patent at the Bureau in Aruba. By filing the applicant will only obtain protection for the jurisdiction in Aruba and its territorial waters.
What are the minimum requirements for a patent ?
To be patentable an invention must be:
a. new (must not already been published or publicly used);
b. inventive (must not have occurred to any specialist in the particular industrial field) and
c. industrially applicable (can be industrially manufactured or used).
Does the Patent Act of Aruba recognize the priority grace period ?
The Patent Act of Aruba like most Patent Acts, recognizes the Paris Union priority grace period of twelve months to file a patent which has been filed in a PCT territory. This means that the Aruba Patent Act does recognize priority claims, if filed within the period of grace of twelve months.
What does the term “patent pending” mean?
The term “patent pending” is used for example in the US by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file at the Patent Office. The law imposes a fine on those who use this term falsely to deceive the public.
In Aruba your not obliged to use this term.
How long does it take to get a patent granted ?
Depending on the duration of the international search in case of a normal patent (protection for 20 years) which is submitted to the European Patent Office in the Netherlands between 2 months to 1,5 years.
Is a patent filed in Aruba valid in foreign countries ?
No, only in Aruba.
How can I assign or license my patent ?
A patent is a personal property and may be transferred in whole or in part to third parties.
Assignment should be done by official deed of which a certified copy should be submitted to the Bureau together with a written annotation request signed by both parties or by the party obtaining said right.
The assignee, when the patent is assigned to him, becomes the owner of the patent and has the same rights the original patentee had.
Through a license the owner of a patented invention can give a third party or legal entity the permission to perform, in the country and for a limited period of time, one or more of the acts which are covered by the exclusive rights of the owner of the invention patented in that country.
When a license is granted by the owner of the patent, the legal document which gives the permission given by the owner of the patented invention is referred to as a “license contract” or a “license”.
The Bureau records assignments and licenses, grants and similar documents sent to it for recording and the recording serves as notice.
Does the Aruba Patent Act provide an exception in which a patented invention may not be exploited ?
Yes, an exception in which a patented invention may not be exploited in spite of the patentee’s autorization is in case the exploitation is against the public interest or security of the government or country. This is in the case of patent applications of which the contents must remain secret in the interest of the defense of the Dutch Kingdom or of its allies.
The Aruba Bureau will only demand submission of a certified copy of the results of the international search.
- Annual maintenance fee for a small (petty) patent until the sixth year. And for a normal patent until the twentieth year.
Timeframe of trademark registration:
The approximate length of the procedure from the filing date to the registration of the mark is more or less four (4) months, provided that the Examiner does not issue an objection against client’s trademark and will depending on the workload of the Aruba Bureau.
What are the minimum requirements for trademark in Aruba?
A trade or service mark has to be apt for the distinguishing of the goods or services from those of others. In order for the trademark to exist it must be distinctive and use is necessary.
Trademark Filing requirements:
a) For the filing/registration, the document that is needed is a simply signed Power of Attorney (POA) and that the Original must be sent to Bureau.
b) An image (electronically) of the mark that has to be filed including description of colors if any.
What is the valid period of a registered trademark?
The duration of registration is limited to 10 years and renewable for indeterminate periods of 10 years.
What do I have to do to register my trademark?
To obtain registration of a trade or service mark in Aruba the applicant has to file a request in triplicate. Applications must be filled out on forms fixed by the Bureau (obtainable at the Bureau).
Applications will be considered not filed so long as the application fee has not been cancelled. Said application fee is not reimbursable. After the application fee has been cancelled the Bureau will effect a search.
If the search reveals no objection to registration, a notification in writing will be forwarded requesting payment of a registration fee, supplemented with the fee for each class in which the trademark is allowed to be registered. The total amount indicated by the Bureau has to be cancelled within one month as of the notification to avoid viodance by right of filing.
Upon receipt of the total registration fee the Bureau shall register the trademark within two weeks, forward proof of registration and procure the publishing thereof in the next Official Gazette (MarcAruba).
For a foreign application of a registration of a trademark, a power of attorney signed by the applicant should be submitted to the Bureau.
If search should reveal that the trade or service mark can not be registered as filed, the Bureau shall forward notification of objection(s) requesting removal thereof within one month. This period may be extended for a same length of period on a reasoned petition to that end.
Important aspect about the trdemarks registration procedure in Aruba
Under ARUBA jurisdiction an action to cancel a registration can be based on the claim that you have the exclusive right to use the trademark based on its first use in Aruba, and the fact that registration of opponent's trademark is identical or confusingly similar with your mark.
To prove first use you will have to show that you first used the trademark in Aruba to distinguish your merchandise from that of your competitors. Advertisement material and the sale of the trademarked goods to the Aruban public can be used as evidence. Please note that under Aruba law the registration of a trademark only creates a presumption of first use.
So the use of a younger trademark can be opposed if (a) the mark is wholly or mainly identical (similar) to a trademark and is used for similar goods, or (b) the younger mark is similar to a trademark in such a way that confusion might arise with the public as to the origin of the goods, irrespective of whether the younger trademark is used for similar goods.
Under established interpretation of the law, the following principles serve as a guideline when determining similarity:
(i) the trademarks have to be considered as a whole in the evaluation. The total impression is decisive; (ii) points of similarity are more important than points of difference;
(iii) as an older trademark is better to distinguish (distinctiveness) and is better known, it can claim a broader protection compared to younger trademarks;
(iv) there is question of similarity when the younger trademark resembles the older trademark, either auditively, visually, or as to its concept, in such a way that associations can be created with the public between the younger and the older trademark;
(v) in case of trademarks of consumer goods or over the counter goods, bought by the general public, similarity will sooner exist than in case of expensive and complex equipment, bought by a professional public;
(vi) also the appearance of similar products available on the market and the question whether it concerns a small or large market can make a difference; and
(vii) trademarks that can be distinguished in themselves by the public can nevertheless create the impression to be each other’s alternative, or to belong to a series of trademarks of the same trademark owner.
The likelihood of confusion encompasses the following situations:
(i) the likelihood of the consumer confusing the younger and the older trademark (direct likelihood of confusion);
(ii) the likelihood that the consumer, despite being able to distinguish the younger and older trademark, still believes on account of the similarity between the trademarks that there is a connection between the trademarks in the sense that (a) it believes that the products for which the younger and older trademark are used come from the same manufacturer; or (b) it believes that there is a legal or economic link between these manufacturers, for instance a license relationship, a franchise agreement, or another form of association or affiliation (indirect likelihood of confusion); and
(iii) the likelihood that, notwithstanding the absence of direct or indirect likelihood of confusion on account of the similarity between the younger and older trademark, the younger trademark still unconsciously creates associations with the older trademark (likelihood of association).
As to the Paris convention:
A trademark owner in principle can claim priority in Aruba under the Paris Union Convention rules within 6 months after filing a mark in another Union-member countries. The foreign application or a certified copy should be submitted at the TM Bureau in Aruba within 2 months of the filing of a new application as well as an English translation. There is no fee involved to claim priority.
What objections can the Bureau raise to the registration of a trademark?
A trademark cannot be registered if it constitutes the reproduction, in whole or in part, the imitation or the translation, liable to mislead the public of a well-known mark to the extent that confusion is permitted.
According to the Aruba Trademarks Act the Bureau can raise objections to the registration of a mark if it concurs fully or generally or in such a way with an existent mark, registered by a third party or of which a third party has earlier filed an application for registration or is known in Aruba as belonging to a third party or being the commercial name of a third party, that public confusion to the origin of the goods or services may arise.
This means that in our law the possibility to raise objections to registrations can only be made after registration of a mark. This is a significant difference compared to other legislations, like for example the U.S. and British legislations where opposition can only be made prior registration.
Can I register a slogan as a trademark?
Yes, a slogan can be registered as a trademark as well as mottos, logos and names.
Can I register my tradename as a trademark?
Yes, a tradename can be registered as a trademark.There is a significant distinction between tradenames and trade or service marks. A tradename identifies the enterprise, while a trademark distinguishes its goods of those from a third party.
There are a lot of enterprises, which use their tradename also as a trademark.
A tradename of an enterprise, or a name or designation so resembling with as to mislead the public, may not be used by another enterprise as a tradename, nor as a trade or service mark.
The use of a tradename resembling or identical to a (well) known or registered mark infringes the exclusive right of the mark, against which legal actions can be taken.
When does a registration nullify?
A. by cancellation requested by the registered owner;
B. by a lapse of 10 years as of the filing-date of the application for registration and expiration of the grace period without been request the renewal.
What is the effective date of a registration?
Registered trademarks are effective as of the date of filing.
Does my application get a number?
Yes, only upon receipt of the filing fee shall the Aruba Bureau provide the petition with an entry number, date and hour.
Is there a period restriction in the Aruba Trademarks Act regarding opposition?
Yes, opposition is only permissible within 6 months after publication of registration.
Can the Aruba Bureau give me information about the owner and about the importer of the products of a specific trademark ?
Upon a written request and against payment of an official fee information in writing can be given by the Bureau about the owner of a trademark. The Bureau does not have a file of importers of products of specific trademarks.
What do I have to do if I no longer want my trademark to be protected ?
The trademark owner has to file a petition that he does no longer want protection of its trademark. A proof of cancellation of the registration is provided by the Aruba Bureau and duly announcement is made in the Official Gazette.
How can I assign or license my trademark ?
Assignment should be done by official deed of which a certified copy should be submitted to the Aruba Bureau together with a written annotation request signed by both parties or by the party obtaining said right. By licensing a trademark owner can give permission to a third party to use a trademark. The use of a trademark by an authorized party is considered as use by the rightful owner.
License can be granted in full or in part for either all or part of the goods and services in respect of which the mark is registered. To be valid against third parties it should be annotated.
Licensee having a licensing annotation is protected against unfair withdrawal by licensor before its duly expiration.
What will the new Trademarks Act contain ?
The Aruba Bureau new Trademarks Act which grants exclusive rights by registration only. The new Act, however, shall differ from other legislations (e.g. the extant Benelux Trademarks Act and the Netherlands Trademarks Act), in that it will uphold grounds on which the Bureau may raise objections to or deny registrations, next to the possibility of opposition in court by third parties.
The new Act shall attend to international registration; first registration is first use; provide for registration of collective trademarks and will establish usage requirements.