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Enforcement of IPRs in Cuba


Enforcement of IPRs
The main cause of the presence of pirated and counterfeit goods is that the same are sold without being checked against by appropriate authorities due to the lack of adequate measures to ensure protection of intellectual property rights. Also, the availability of such goods at a cheaper cost acts as an incentive to promote the circulation of such goods.
Medicines, cigars, pirated DVDs, including TV series, films, music, and software are the goods that most often face counterfeiting and piracy in Cuba.
The laws include - Decree No. 343 of February 28, 2018, on the Establishment of the Industrial Property System, Decree-Law No. 337 of June 30, 2016, on the Protection Against Unfair Practices Concerning Industrial Property, Decree-Law No. 291 of November 20, 2011, on the Protection of Plant Varieties, Decree-Law No. 292 of November 20, 2011, on Layout Designs of Integrated Circuits, Decree-Law No. 290 of November 20, 2011, on Inventions and Industrial Designs, Decree-Law No. 228 of February 20, 2002, on Geographical Indications, Decree-Law No. 203 on Trademarks and other Distinctive Signs, Decree-Law No. 162 (Customs Law of The Republic of Cuba), Decree-Law No. 156 of September 28, 1994, amending Law No. 14 of December 28, 1977, on Copyright, and Decree-Law No. 68 of May 14, 1983, on Inventions, Scientific Discoveries, Industrial Designs, Trademarks, and Appellations of Origin.
Trademarks, patents, copyright, geographical indications, and appellation of origin, industrial designs, and plant varieties are the different types of IPRs protected by IPR enforcement in Cuba.
It is generally advised to register the respective trademark before seeking any enforcement of the same. The reason lies in the fact that Cuban law does not provide protection to unregistered trademarks. However, the owner of an unregistered mark that has been used at an officially sanctioned exposition can claim priority to the date of that use under certain circumstances, provided that the use was no more than 06months before the application to register the mark.
Yes – There is a 05 year limitation period.
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Other civil remedies in Cuba include the publication of the conviction and its notification to the interested persons at the cost of the defendant.
Infringement actions typically last approximately 01 year, not considering any appeals.
They are not always available.
Civil infringement actions are available. However, under certain circumstances, the prosecutor can institute criminal proceedings – namely, where there is a social or state interest.
A) Responsible Authority - Popular Provincial Court
B) Imprisonment Term - N/A
C) Monetary Fine - Trademarks: The court may order compensation for damages or monitory fine in accordance with the facts and circumstances of each case, which are calculated based on the following:
  • Loss of profits suffered by the owner of the right;
  • Benefits obtained by the infringer; and
  • The price that the infringer would have paid for the concept of a contractual license, taking into account the commercial value of the infringing right and the contractual licenses that had already been granted.
Other criminal remedies available in Cuba include the publication of the conviction and its notification to the interested persons at the cost of the defendant.
The lack of stringent punishment and limited criminal proceedings being instituted is the biggest disadvantage of criminal prosecution.
Although the Republic of Cuba has an arbitration act in place; however, much reliance is placed on conventional modes of resolving disputes like resorting to court proceedings.
The remedies available under border control measures (customs) in Cuba include seizure and destruction of goods.
It is the applicant who must to bear the costs of customs intervention during enforcement.
If an IP rights holder fails to act in accordance to the request made by the customs authority in furtherance of executing enforcement measures, the customs shall no longer be obliged to act pursuant to such a request and the goods shall ultimately be released from detention.
Court Proceedings
The lack of stringent criminal actions against acts of infringement invites the risk of subsequent infringements due to the lack of deterrent punishments.