What are the causes of counterfeiting and piracy in Cuba?
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.
Which are the goods that most often face counterfeiting and piracy in Cuba?
Medicines, cigars, pirated DVDs, including TV series, films, music, and software are the goods that most often face counterfeiting and piracy in Cuba.
Does Cuba have a well-established framework for the enforcement of Intellectual Property Rights (IPRs)?
What are the specific laws/orders/rules laid down in Cuba for the enforcement of Intellectual Property Rights?
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.
What are the different types of IPRs protected by IPR enforcement in Cuba?
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.
What are the general IPR enforcement obligations in Cuba?
What are the essential to-dos before an IP rights holder initiates the enforcement proceedings?
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.
Is there any limitation period for filing an infringement action?
Yes – There is a 05 year limitation period.
Which of the following IPR enforcement channels is/are available in Cuba?
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Are civil actions available for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in civil litigation?
Which of the following types of civil remedies is/are available in Cuba?
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Are there any other civil remedies available in Cuba than the ones mentioned above? If yes, then kindly explain in brief.
Other civil remedies in Cuba include the publication of the conviction and its notification to the interested persons at the cost of the defendant.
What is the approximate timeline of civil litigation related to IPR enforcement in Cuba?
Infringement actions typically last approximately 01 year, not considering any appeals.
What happens if an IP rights holder abuses the enforcement measures in civil litigation?
Are there any disadvantages of civil litigation in Cuba? If yes, then kindly give 2-3 points?
Is criminal prosecution available in Cuba for the enforcement of IPRs?
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.
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in criminal prosecution?
Which is the responsible authority in Cuba corresponding to the types of criminal remedies available? Also, mention the imprisonment term and the monetary fine.
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.
Are there any other criminal remedies available in Cuba than the ones mentioned above? If yes, then kindly explain in brief.
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.
What happens if an IP rights holder abuses the enforcement measures in criminal prosecution?
Are there any disadvantages of criminal prosecution in Cuba? If yes, then kindly give 2-3 points?
The lack of stringent punishment and limited criminal proceedings being instituted is the biggest disadvantage of criminal prosecution.
Are there any alternative dispute resolution mechanisms which allow parties to resolve their dispute out of court?
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.
Are border control measures (customs) available in Cuba for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to the customs authority/department to support his claims of infringement against the opposing party/importer of counterfeit goods?
What are the remedies available under border control measures (customs) in Cuba?
The remedies available under border control measures (customs) in Cuba include seizure and destruction of goods.
Who must bear the costs of customs intervention during enforcement?
It is the applicant who must to bear the costs of customs intervention during enforcement.
What happens if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs?
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.
Which are the best practices for enforcement of IPRs in Cuba?
Are there any risks involved in the enforcement of IPRs in Cuba? If yes, then kindly give 2-3 points.
The lack of stringent criminal actions against acts of infringement invites the risk of subsequent infringements due to the lack of deterrent punishments.