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Trademark Registration in
Latin America:

Contact us:

Email: info@proxario.net, proxario@gmail.com

Head Office : Av. República de Colombia, Ciudad Real 2, M-D E-1 Office 101,
Santo Domingo 10605, Dominican Republic.

Tel: +212 (470) 8762 (English)

Curaçao

General trademark information of Curaçao

Registration is required to establish rights in a trademark; this is a "first-to-file" jurisdiction.

• Use of an unregistered mark for any goods or services is legal.

• No legislation regarding plain packaging has been enacted in this jurisdiction, and it is not under active consideration.

A. Time Frame for Obtaining Registration

• The approximate time from application to registration (for a regular prosecution, without opposition) is:

two to four months.

B. Advantages of Registration

• The benefits of registering a trademark include the following:
  • it is the sole means of obtaining rights in or title to the trademark;
  • it provides prima facie evidence of ownership and validity;
  • it provides regional, national, and/or local protection;
  • it allows the registrant access to bring actions in particular courts;
  • it helps to deter others from unlawfully using the trademark;
  • it provides a defense to infringement;
  • it confers the ability to recover maximum monetary damages for infringement.
  •  The risk of not registering a trademark is that others may register an identical or similar mark that could impede the ability to use or register the mark in Curacao.

II. Pre-Filing

A. Registrable Trademarks

• The following signs that can be reproduced graphically and are capable of distinguishing the goods or services of one person or entity from another are registrable as a trademark:
  • words;
  • names;
  • devices;
  • certain three-dimensional shapes;
  • colors;
  • slogans;
  • trade dress/get-up;
  •  letters, numbers, drawings.

• The special requirements for the registration of three-dimensional shapes are:

 The shape must be considered, in its entirety, suitable to distinguish the goods and services for which it is intended from that of others. Shapes that are determined by the nature of the goods are not considered a trademark.

• The special requirements for the registration of colors are:

 the application must be filed using color names and/or numbers.

• The special requirements for the registration of trade dress are:

 The trade dress must be considered, in its entirety, suitable to distinguish the goods and services for which it is intended from that of others.

• Marks registered in black and white or grayscale are construed broadly to protect the mark both as registered and in other color combinations.

• In addition to regular trademark registrations, the following types of trademarks are registrable:
  • collective marks;
  • well-known marks,

if registered by the rightful owner;

• service marks.

• Retail services are registrable provided that the nature of the retail services is clearly identified.

• The following are not registrable as trademarks:
  • marks contrary to moral standards or public order;
  • generic terms;
  • names, flags, or symbols of states, nations, regions, or international organizations;
  • non-distinctive trademarks, absent a showing of acquired distinctiveness (secondary meaning);
  • marks that function principally as geographic location names (but not geographical indications or appellations of origin).

• Geographical indications (GIs) are protected in this jurisdiction.

• GIs are protected by way of:
  •  through an article in the Trademark National Ordinance.

• The following products or categories are subject to GI protection in this jurisdiction:

wine and spirits.

B. Searching

• While conducting a private pre-filing search is not mandatory, it is recommended in that it can:
  • save the applicant the time, effort, and cost entailed in developing, adopting, and applying to register a trademark in which someone else has prior rights;
  •  disclose additional potentially conflicting registered trademarks.

• The national office is accessible online at the following URL:

 https://www.bip.cw/

• The official register cannot be searched online.

C. Use

• An applicant does not benefit from pre-filing use of a trademark.

 Pre-filing use is not possible.

• When a mark is not registered, use of that mark may provide the following benefits:
  • Special protection against infringement may be available for a famous and/or well-known mark that is not registered.

• Famous and/or well-known marks are protected via the following mechanism(s):
  • a determination by the court resulting from an action for infringement;
  •  Article 6bis of the Paris Convention.

D. International Treaties

• This jurisdiction is a member of the following international treaties relating to intellectual property:
  • Paris Convention;
  • Trademark Law Treaty;
  • Singapore Treaty;
  • Madrid Protocol;
  • Nice Agreement.

III. Filing

A. Requirements

• If the applicant is not domiciled in this jurisdiction, a local address for service must be provided.

• Joint applicants are permitted in this jurisdiction.

• Neither actual use nor intent to use is required for application.

• The following information is required to COMPLETE an application:
  • name and address of applicant;
  • state or country of incorporation;
  • representation of trademark (a depiction of the mark an applicant seeks to register);
  • list of goods/services;
  • power of attorney;
  • official filing fee;
  • priority claim, where priority of an earlier application is claimed;
  •  the legal form of the applicant (if the applicant is a legal entity).

• While ALL of the items noted in the list immediately above are required to COMPLETE an application, ONLY THE FOLLOWING ITEMS from that list are required in order to SECURE A FILING DATE:
  • name and address of applicant;
  • state or country of incorporation;
  • representation of trademark (a depiction of the mark an applicant seeks to register);
  • list of goods/services;
  • power of attorney

(desirable to determine whether the applicant's name and address are the same as the name and address registered. Otherwise, the Bureau of Intellectual Property will raise objections.);

• official filing fee;
• priority claim, where priority of an earlier application is claimed;
•  the legal form of the applicant (if the applicant is a legal entity).

• The list of goods and services in this jurisdiction may specify:
  • the relevant class heading;
  • a list of names commonly used in the trade for the specific goods or services of interest;
  • the relevant entire (long) alphabetical class listing

(only relevant goods and services described as much as possible by using the wording of the International Classification and in alphabetical order).

• The relevant entire (long) alphabetical class listing is appropriate to use in applications for:
  • goods and/or services.

• The following number of copies of the trademark must be submitted:

five of the representation of the mark plus the application in threefold.

• In this jurisdiction, the following types of registration are available:
  • national;
  • international.

• This jurisdiction is a party to the Madrid Protocol but not the Madrid Agreement and may be designated in international applications.

• This country is not a member of the European Union; a European Union Trade Mark registration is not effective in this jurisdiction.

• No (other) multinational regional registrations are available in this jurisdiction.

• An international application is subject to the same registrability requirements and examination procedure as a locally filed application. (See the entry for the Madrid System.)

Please note that the requirements of the Madrid Protocol are the same; however, compared to the Madrid Agreement, the registration charges to be paid differ (the application fee is made in local currency, while the international fee, supplementary fee, and complementary fee are made in CHF).

• Applications cannot be filed online.

• The official file cannot be accessed online.

• Applications are not officially searched as to prior trademarks.

B. Priority

• If an applicant's home country is a signatory to the Paris Convention, the filing date of its home application can be claimed as the filing date in this jurisdiction, provided that its home application was filed within the fixed period of six months preceding the application in this jurisdiction.
• An International Registration can be based on a national application or registration in this jurisdiction.

 An International Registration elsewhere can be based on a national application or registration in the jurisdiction of Curacao.

C. Classification

• This jurisdiction uses the Nice Classification System.

• If a trademark covers more than one class of goods and/or services, one application can cover multiple classes of goods or services.

• For a multi-class application, the applicant must pay additional class fees if the goods/services fall into more than the following number of classes:

 three.

D. Representation

• An application to register a trademark may be filed directly in this jurisdiction by:
  • the applicant, but only if a citizen of or domiciled in the jurisdiction;
  • a trademark representative/attorney/agent, but only if a citizen of or domiciled in the jurisdiction.

IV. Application

A. Publication

• The filing particulars of an application are not made available to the public.

B. Examination

• Applications are examined in respect of:
  • formalities: i.e., for compliance with the filing requirements;
  • classification: i.e., to ensure that the goods or services fall within the class(es) listed in the application;
  • clarity: i.e., that descriptions are clear and understandable;
  • descriptiveness: i.e., to check whether a trademark functions solely to provide information about the goods and services affiliated with the trademark;
  • distinctiveness: i.e., to ensure that trademarks are capable of being represented graphically and of distinguishing the goods or services of one individual or organization from those of other individuals or organizations;
  • deceptiveness: i.e., to check whether a trademark is of such a nature as to deceive the public (for instance, as to the nature, quality, or geographic origin of the goods or services).
  •  The Bureau of Intellectual Property can refuse a mark only on absolute grounds. It cannot object to the registration of a trademark based on older identical or similar registered trademarks.

• This jurisdiction has disclaimer practice (i.e., a practice whereby the applicant must disclaim any exclusive right to an element of a trademark that is not distinctive).

• The order of the application process is as follows:
  • examination, registration, publication.

C. Prosecution

• Accelerated examination may be requested.

• A reason for acceleration is not required.

• A fee for acceleration is required.

• The following rights are established by a pending application:
  • the filing date of the application establishes a home filing date for purposes of priority;
  • the pending application can be cited in official examination against a subsequent (later-filed) conflicting application;
  • the pending application establishes prima facie proof of ownership of a trademark.
  •  The rights above will lapse if any stipulations of the national decree containing general measures have not been met within the period of time prescribed for this.

D. Opposition

• Opposition is not available.

E. Proof of Use

• Proof of use is not required prior to the issuance of a registration or the issuance of a notice of allowance/acceptance.

V. Assignment, Licensing, and Other Changes to Trademark Records

A. Assignment

• An application cannot be assigned.

• A registration can be assigned.

• An assignment of a registration must be for the entire territory covered by the registration.

• An assignment of a registration can be for some or all of the goods or services listed in the registration.

• Goodwill need not be included in an assignment of a registration.

• An assignment document for a registration requires:
  • name of assignor;
  • address of assignor;
  • name of assignee;
  • address of assignee;
  • details of the trademark being assigned;
  • goods and services being assigned;
  • effective date of the assignment;
  • signature by assignor;
  • signature by assignee.

• Legal verification of a written assignment document of a registration is not required.

• An assignment of a registration need not be recorded, but if it is not recorded the assignment may not be effective against a subsequently dated but recorded assignment

and/or be used against a third party.

B. Licensing

• Use of a mark that is the subject of an application cannot be licensed.

• Use of a registered mark can be licensed.

• In this jurisdiction, registered trademark users (as opposed to licensees) cannot be recorded.

• A license of a registration must be for the entire territory covered by the registration.

• A license of a registration can be for some or all of the goods or services listed in the registration.

• A license of a registration can be non-exclusive (multiple licensees and the owner).

• The following requirements relate to the use by a related company of a registered mark:

 The related company or trademark holder can only invoke the trademark rights against a third party if the related company is registered as a licensee; thus, use of a related company is considered use by the trademark owner.

• A license of a registration must be made with a time limitation (i.e., it cannot be perpetual).

• A license document for a registration requires:
  • name of licensor;
  • address of licensor;
  • name of licensee;
  • address of licensee;
  • details of the trademark to be licensed;
  • goods and services being licensed;
  • commencement date of the license;
  • term of the license;
  • territory of the license

(The territory must always be Curacao for national marks.);

• simple signature by licensor (see below for execution requirements);
• simple signature by licensee (see below for execution requirements).

• A license of a registration must be recorded to maintain the validity of the registration if it is used under license.
• A license of a registration need not be recorded, but recordation could help in enforcement, to demonstrate use of the mark.

• The license for a renewed registration must be re-recorded.

• Legal verification of a written agreement to license a registration is not required.

C. Other Changes to Trademark Records

• The requirements for the recordal of name changes, mergers, and other important corporate updates on trademark records are as follows:
  • power of attorney, without further formalities;
  • deed of assignment, without further formalities

(original authenticated copy);

• certificate of merger, without further formalities

(original authenticated copy).

• The requirements regarding the recordal of updated addresses on trademark records are as follows:

file a request to record a change of name and/or address through an authorized person/agent.

• The requirements for recording liens against trademark records, such as security interests, are as follows:

 a power of attorney if the representative is not already representative, a supporting document in which the lien is granted, signed by both parties, payment of official fees.

VI. Registration

A. Requirements

• A fee is not required for issuance of the registration.

• The following documentation is required for issuance of the registration:
  • none.

B. Rights

• The following rights are established by registration:
  • the exclusive right to use the registered trademark;
  • the right to bring a cancellation action against a subsequent conflicting registration;
  • the right to sue for infringement against confusingly similar third-party trademark use;
  • the right to license third parties to use the trademark;
  • the right to obtain damages for infringement;
  •  
    • the right to file a claim for the payment of any profit earned as a consequence of infringement;
    • the right to claim the ownership of movable property with which its rights have been violated or demand that such property be destroyed or rendered unusable;
    • the right to claim the ownership of property used for the production of infringed goods or demand that such property be destroyed or rendered unusable.

• The Roman alphabet is used to represent the official language(s) of this jurisdiction.

• A trademark becomes incontestable, that is, the validity of the registration cannot be challenged, after the following time period:
  • never.

• The territorial limit of registration is:

the territory of Curacao.

C. Term

• The initial term of a registration is:
  • 10 years

• The beginning of the term of a registration is calculated from:
  • the application date.

D. Marking Requirements

• Marking is not compulsory for registered trademarks, but is advisable because:

 third parties are informed and warned of the mark's registration.

• Any marking should be in the form(s) mentioned below. Please consult a local trademark attorney in case of doubt.
  •  Marking is not compulsory, but a registrant may, as a precaution, use the marking ®. The use of the marking ® cannot, however, serve as proof of registration in any court proceedings.

• The use of ® is not legally recognized, but it is recognized in practice.

• The legal consequences of false or misleading marking are:

 none.

VII. Post-Registration

A. Use Requirements

• Attack on the ground of non-use is available.

• To avoid being attacked on the ground of non-use, a trademark must be used within the following period of time:

 a continuous period of five years of use of the trademark in Curacao for the goods and services for which the mark is registered.

• To satisfy the use requirement, the amount of use:
  •  "normal use," which means that the use of the trademark should be commercially suitable to gain or maintain market share in order to comply with the requirement of use.

• Use of the trademark must occur in:
  • this jurisdiction

(for national registrations).

• The consequences of a trademark's not being used are as follows:

open to cancellation actions based on non-use.

• Periodic statements of use or other mandatory filings by the trademark owner setting forth use of the trademark are not required.

• An action for non-use of a trademark can be brought by:
  • any interested third party.

• Non-use can be excused under the following circumstances:
  •  It is determined on a case-by-case basis, depending on the facts.

• Resumption of use of a trademark prior to the filing of an action to revoke or cancel that trademark may cure non-use if preparation for the resumption of use began before the registrant was aware that an action had been or was about to be filed.

• Use of a registered trademark in a modified form would not affect the enforceability of a registration and is allowed if the difference is slight and provided that the modification does not materially alter the distinctive character of the trademark. Consult a local trademark attorney.

• Amendment of a registration to conform to a modified form of the trademark is not possible. Depending on the circumstances, a new application to register the modified trademark might be necessary. Consult a local trademark attorney.

B. Cancellation

• Cancellation is available.

 Cancellation is available against registrations through court proceedings.

• The following can be grounds for cancellation:
  • proprietary rights, such as an earlier conflicting registration;
  • the mark is descriptive, i.e., it consists of a sign or indication that may serve in trade to designate the kind, quality, quantity, intended purpose, or value of goods or of rendering of services, or other characteristics of goods or services;
  • the mark is misleading, deceptive, or disparaging;
  • rights in a personal name

(only if the name is registered);

• the mark is generic, i.e., the mark consists exclusively of signs or indications that have become customary in the current language or in the bona fide and established practices of the trade;
• the mark consists of a geographical indication

(with regards to wines and spirits that are not of such geographical origin);

• the mark is against public policy or principles of morality;
• the mark includes a badge or emblem of particular public interest;
• the mark is used in a misleading manner;
• the application for or registration of the mark was made in bad faith.

• There is no deadline for bringing a cancellation action; a cancellation action can be brought at any time.

• The following parties may bring a cancellation action:
  • any interested party;
  • the owner of an earlier right;
  • a licensee

(provided that the license is recorded and if cancellation proceedings were initiated by the trademark owner);

•  Public Prosecutor.

• Cancellation actions cannot be filed online.

C. Renewal

• The following documentation is required for renewal:
  • power of attorney

(The name and address should be identical to the name and address on the renewal form.);

•  
  • two filled-in application forms, signed by a local resident or an agent;
  • if a design mark, copies of the design in JPEG format (Five copies of the design mark are required: one for the application form and four extra.).

• The first renewal date of a registration is:
  • 10 years from the application filing date.

• Subsequent renewals last for the following period of time:
  • 10 years from the renewal date of the registration.

• The renewal pre-payment period is:
  • no more than the following number of months before the renewal date:

 six months.

• There is a grace period for renewing registrations once the renewal date has expired.

• The grace period after the renewal date has expired is:
  • 6 months.

• The penalty for late renewal is:
  • a fine.

• Renewal cannot be effected online.

• At the completion of renewal, a new registration number is not issued.

VIII. Customs Recordation

A. Customs Recordation

• There is no mechanism for recording trademarks that are registered in this jurisdiction with the customs authority.

IX. Domain Names

A. Domain Names

• Any domain name may be protected as a trademark.

• The following approved registrars can register a domain name in this jurisdiction:

a special department at the University of Curacao (https://www.uoc.cw/domain-registration).

• Availability of domain names in this jurisdiction can be searched through the following website(s):

https://www.uoc.cw/domain-registration/cw-registered-domains

• The Country Code Top-Level Domain (ccTLD) for this jurisdiction is:

.cw

• To obtain a domain name under the ccTLD in this jurisdiction, the following is required:
  •  a local presence is required.

• Domain name registrations cannot be assigned.

• Domain name registrations can be licensed.

• A domain name registration may be contested in this jurisdiction through the following mechanisms:
  • a Uniform Domain-Name Dispute-Resolution Policy (UDRP) proceeding, filed through an ICANN-approved domain-name dispute resolution service provider (see http://www.icann.org/en/help/dndr/udrp).

• One may institute a UDRP proceeding with the following ICANN-approved domain-name dispute resolution service providers to contest a domain name registration in this jurisdiction:
  • World Intellectual Property Organization (WIPO).

• If a registration lapses as a result of failure to renew, it can be revived or restored in the following way:

 payment within 60 days of expiration of the payment due date. If payment is not received, the domain name will become available to applicants other than the first registrant.

• The application to register a domain name as a trademark will be examined for conflicts with prior trademarks.

• An earlier-filed domain name registration cannot create rights effective against a later-filed trademark application filed by another.

Curacao has the first-to-file system. Rights to a trademark are only valid when filed with the Bureau of Intellectual Property of Curacao. The .cw or other combination domain names will not be made available if it is similar or the same as a registered trademark or otherwise infringes any rights of another.

• In general, the courts apply the same principles to domain name disputes as are applied to trademark disputes.

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