Bahamas ‘must update’ trademark law
NG Business Editor
Published: Sep 23, 2011
A former legal adviser to the Ministry of Finance says The Bahamas must come of age when it comes to trademark laws, intellectual property and the rules that govern cyberspace if it wants to establish itself as a serious global player - or risk being left behind.
Rowena Bethel, who now works as a consultant on matters concerning the Internet, e-commerce law and cross-border cooperation, said the vast majority of Bahamians don’t
understand the importance of these issues.
“The situation in The Bahamas is our trademark law is from 1906,” he told Guardian Business.
“It was drafted before people even dreamt about the Internet. Its power needs to be recognized and we must update our laws. When you live in a global environment, and you wish to take advantage of being a global citizen, you must play by global rules.”
The comment comes after Chanel, the luxury retailer, filed a legal suit against 399 websites in the U.S. this week, charging that the online retailers are infringing on its trademarks and selling counterfeit goods.
Although the suit was filed in a U.S. district court, there is one problem - lawyers contend many of these websites operate out of The Bahamas, among other “foreign jurisdictions with lax trademark enforcement systems”.
The suit also contended that the websites use search optimization strategies to dupe online consumers and lead them astray from the legitimate, mainstream vendors.
Chanel is requesting an injunction against the defendants, stopping them from infringing and counterfeiting. They also wish to seize, and perhaps disable, the domain names of the perpetrators.
Questions were submitted to a Chanel spokesperson in the U.S., but Guardian Business didn’t receive a response before press time.
Bethel said this particular case is a perfect example of the need to update trademark laws in The Bahamas.
Whenever a website is registered, she explained, you apply for a domain name and provide personal details.
“I suspect that’s how the lawyers from Chanel were able to find these websites,” she added. “They then would know who the owners are and who is registered. The fact they are in The Bahamas does not stop them from suing them in the U.S.”
With higher developed trademark and infringement laws in the U.S., Chanel is able to take legal action against Bahamas-based websites if the products are accessible to American consumers. In other words, if Americans can buy the Chanel products, U.S. courts have jurisdiction to prosecute.
Cases like these are damaging to the reputation of The Bahamas as a serious exporter / importer of goods, especially as the country seeks full privileges and membership with the World Trade Organization, she said.
Counterfeit luxury goods have been a persistent problem in The Bahamas.
In September 2010, seven Bahamian straw vendors were arrested at JFK airport in New York and charged for possession of counterfeit goods.
The arrests were a drop in the bucket in a more larger issue, Bethel said, as the sale of these products continues to be quite common on Bahamian streets - with the new downtown straw market preparing to open its doors in the coming days.
Meanwhile, in July of this year, the Customs Management Bill was passed by the government to create measures that would allow Customs to confiscate counterfeit goods at the border, or detain and dispose of them if they make it into the country and are later found.
Winston Rolle, the Chairman of the Bahamas Chamber of Commerce and Employers Confederation (BCCEC), said the fighting against intellectual property and counterfeiting is a working process and more work must be done.
“We realize there is a deficiency here,” he told Guardian Business.
“We not only need to protect Chanel, but ourselves.”
Rolle revealed that the BCCEC is currently working on a virtual platform for the handicraft industry, which will source and quality control Bahamian goods.
Incredibly, he pointed out that, on the world stage, there is very little the country can do if a foreign manufacturer claimed its merchandise was: “Made in The Bahamas.”
“We need to have strong intellectual property laws to protect our industry, from others getting their hands on it and saying products are Bahamian made,” he added.
“People need to not just see the Chanel side - it’s also to protect our own manufacturers.”
For now, as it relates to Chanel, Bethel felt the injunction will likely go in favor of the luxury brand.
She anticipated the websites will be forced to close down or cease their activities and further penalties, including fines and “handsome damages” could be down the road.