FAQ

Optimal protection of your trademark(s) involves all kinds of practical and legal issues. Several activities guarantee the protection of your trademark.

To ensure the broadest possible protection and at the same time prevent potential conflicts you will have to establish:
• which signs are suitable trademarks,
• which previous rights there are,
• how the associated risks should be assessed,
• for which goods and services the trademark is to be used and,
• how they must be described. 

These are all issues which are crucial for the successful protection of your trademark(s). The protection of trademarks and other intellectual property rights is, in short, a specialist field. A lot of companies do not have access to the necessary expertise. Seeking assistance from an expert is therefore a good idea.
 

• Visit our office
• make a(n) (virtual) appointment for more in depth information
• call our frontdesk  during office hours +1721543 35 00

There are two types of rights under copyright:

• economic rights, which allow the rights owner to derive financial reward from the use of their works by others; and
• moral rights, which protect the non-economic interests of the author.

Most copyright laws state that the rights owner has the economic right to authorize or prevent certain uses in relation to a work or, in some cases, to receive remuneration for the use of their work (such as through collective management). The economic rights owner of a work can prohibit or authorize:

• its reproduction in various forms, such as printed publication or sound recording;
• its public performance, such as in a play or musical work;
• its recording, for example, in the form of compact discs or DVDs;
• its broadcasting, by radio, cable or satellite;
• its translation into other languages; and
• its adaptation, such as a novel into a film screenplay.

Examples of widely recognized moral rights include the right to claim authorship of a work and the right to oppose changes to a work that could harm the creator's reputation. (source: WIPO)

In the majority of countries, and according to the Berne Convention, copyright protection is obtained automatically without the need for registration or other formalities.

Most countries nonetheless have a system in place to allow for the voluntary registration of works. Such voluntary registration systems can help solve disputes over ownership or creation, as well as facilitate financial transactions, sales, and the assignment and/or transfer of rights.

In Sint Maarten, it is not possible to register your Copyright. What you can do, is record your creation in an i-Envelope. While you automatically have Copyright on original creations, proving this can be challenging. The i-Envelope will help you prove that indeed you are the creator of an original work, the Copyright owner. Only the person filing the i-Envelope is privy to the content of the i-Envelope.  

What the i-Envelope aims to do, is to record the date the work was created. It does not create the Copyright, but it serves to proof it. In the event your copyright is challenged, you have a more defensible right. The work is saved in the i-Envelope, which is provided with a seal and a date stamp. That way you can prove that your idea or creation already existed on a certain date. The date stamp issued by the Bureau can be compared to the date stamp of the tax inspectorate or a notarial deed. 

In Sint Maarten, the law provides Copyright protection until 50 years after the death of the author. When a work has multiple authors, protection is until 50 years after the death of the longest living author. In principle, the exclusive right of the author to translate a work expires 10 years after the work is published or made public, notwithstanding further stipulations within the law. Copyright protection of pictures and films expires 50 years after the work is published or made public. 

The i-Envelope is a legal means of proof that issues a date stamp for your idea or creation. It allows you to prove that your idea or creation already existed on a certain date. 
The i-Envelope contains two compartments. In each compartment, place an identical document (by means of paper, CD, USB-stick or other means) that describes your idea or creation as clearly as possible. Then return both compartments to BIP SXM. At BIP SXM your i-Envelope will be dated upon receipt. Both compartments will receive a seal and date stamp. One compartment will be returned to you, and the other will be stored in our archive. You have a one-time only right to ask us to produce this second compartment as a means of evidence, for example, in the case of a dispute.
However, be aware that the i-Envelope in itself does not offer any intellectual property right. It can serve as evidence in and out of court in the event of a dispute between potential partners or even strangers.

Copyright according to the Copyright Ordinance in Sint Maarten, is the exclusive right of the creator of an original work of art, literature or science, to publish, duplicate and reproduce his work, or to allow someone else to do so, with exceptions of the limitations provided by the law. For example, if you have written a book or song, or created a work of art, you can prevent others from publishing or duplicating your work without your permission.

Ancillary rights protect performances by performing artists, producers of phonograms, first recordings of films and broadcasting organizations. Recording a Copyright for e.g. in an i-Envelope creates a clearer and, if challenged, more defensible right.

Works protected by Copyright in Sint Maarten include: Literary works such as novels, poems, reference works, newspaper articles, recipes; Musical compositions with or without lyrics; Choreography, plays; Verbal presentations; Paintings; Sculptures; Photographs; Films; Computer programs; Databases; Advertisements; Geographical maps; Technical drawings and designs, sketches or plastic works related to construction, geography, location descriptions or other sciences. 

Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for several objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.

The laws that provide Copyright and Trademark protection are very different.

A Copyright is a right that you obtain automatically by law when you create original literature or art. There are no formal requirements such as registration. It is the prerogative of the creator whether he/she records the creation, for example by means of an i-Envelope, to provide strong evidence of his/her copyright. This should be considered by every copyright owner as the burden of proof lies with the creator.

A trademark is a sign that distinguishes your goods (products) or services from those of your competitors. A trademark can be represented graphically in the form of your company’s logo or signature. To obtain Trademark protection registration is necessary. Registering your trademark in the Sint Maarten register gives you the exclusive right to use the trademark for the selected goods and services within Sint Maarten, for a(n) (extendable) period of 10 years. 

The laws that provide Copyright- and Patent rights protection are very different.

A Copyright is a right that you obtain automatically by law when you create original literature or art. There are no formal requirements such as registration. It is the prerogative of the creator whether he/she records the creation, for example by means of an i-Envelope, to provide strong evidence of his/her copyright. This should be considered by every copyright owner as the burden of proof lies with the creator.

A patent is an exclusive right granted for an invention, which can be a product as well as a process. An inventor can commercialize his or her invention without the fear of competition from others and therefore obtain all the possible benefits of the invention. To obtain the right to a Patent, technical information about the invention must be disclosed to the public in the patent application.  

Anyone can file an i-Envelope at BIP SXM. You can be an artist, a writer, a musician, a software developer, a poet, an inventor, a professional, a graphic designer, an architect, a cartoonist, a choreographer, a cinematographer, a fashion designer, a screenwriter and the list goes on.

The i-Envelope is an excellent, affordable, reliable, fast and easy method for recording your idea(s) and proving your date of creation. It can serve as evidence in and out of court in the event of a dispute between potential partners or even strangers. It is important to note that the i-Envelope in itself does not offer any intellectual property right.

You can check the online register on the BIP website for existing trademarks registered on Sint Maarten. Go to www.bip.sx:

• click on “Trademark search to perform a simple search  with a a verbal element or TM number
• click on “Advanced search to perform a search with filters, such as a verbal element, Vienna codes, Nice classes, TM holder etc.  

Optimal protection of your trademark(s) involves all kinds of practical and legal issues. Several activities guarantee the protection of your trademark.

To ensure the broadest possible protection and at the same time prevent potential conflicts you will have to establish:

• which signs are suitable trademarks,
• which previous rights there are,
• how the associated risks should be assessed,
• for which goods and services the trademark is to be used and,
• how they must be described. 

These are all issues which are crucial for the successful protection of your trademark(s). The protection of trademarks and other intellectual property rights is, in short, a specialist field. A lot of companies do not have access to the necessary expertise. Seeking assistance from an expert is therefore a good idea.

For more information visit the trademark representative page on our website.

When your application has been received, BIP SXM makes a note of the date and time of receipt, of which you will receive a confirmation. The data you have stated on the form is entered in our system.

First, a check will be carried out to see whether your application complies with the minimal requirements:

• Is the trademark clearly represented?
• Is there a reference to the name of the applicant (person or company)?
• Are the goods and services clearly described?
• In the event of a collective trademark, have regulations for use and control been included?
• Is the payment of the required fees received?

These are the minimum requirements that must be fulfilled; if they are not, your application is inadmissible. In other words, no application is deemed to have taken place.
The filing date is set at the date on which these requirements have been fulfilled. It is very important that the payment has been received at the same time of the application. Otherwise, the filing date will be postponed to the date at which we receive your payment. The filing date is important for determining priority of your trademark versus the rights of others.

Once the filing date has been determined, your application will become the responsibility of one of our members of staff. They will check whether all the requirements have been fulfilled and contact you if any additional further details are required. The goods and services referred to will then be arranged into classes in accordance with the international Nice classification.
If your application meets the various requirements, your trademark will be registered. This registration will then be published. You will receive a certificate of your registration.
To maintain this exclusive right, you must use and monitor the trademark, ensure timely renewal of your registration and keep the information up to date (if you change your logo, you must submit a new application). You are solely responsible for taking (legal) action against infringers.

The symbol ™ (trademark) is sometimes used when a trademark has been filed(applied for) but not yet registered.
As soon as the trademark has been definitively registered, the ® symbol is used. This stands for 'registered trademark'. In Sint Maarten, there is no obligation to use these signs. Neither have any rules been laid down to govern the use of these symbols. Therefore, you may use them provided they refer to a registered trademark. They must not be used in a misleading way.

A trademark representative in Sint Maarten is:

1. an attorney at law or notary practicing in Sint Maarten; 
2. a professional in the field of trademarks established in Sint Maarten and registered as such at the Chamber of Commerce Sint Maarten; 
3. employed by a company established in Sint Maarten that specializes in trademarks and the registration thereof and registered as such at the Chamber of Commerce Sint Maarten.

These representatives are thoroughly familiar with the relevant legislation, related case law and literature, which means they can help you plan how best to acquire protection and carry out all the administrative tasks on your behalf. They can also administer your trademarks portfolio and assist you in any disputes that might arise. For trademarks representatives registered with BIP SXM click this link.

A trademark is a sign that distinguishes your products or services from those of others. Registering your trademark gives you the exclusive right to use it for certain goods (products) and services within Sint Maarten, and can protect your brand by restricting others from using it. A strong trademark can give your business a great, marketable value.

Signs that can be protected as trademarks include word marks (names, slogans) and figurative marks (logos, images), but also shapes (bottles, packaging), colors and sounds. When filing a national trademark registration, the protection only stretches to Sint Maarten (Dutch side), as Sint Maarten it has its own jurisdiction. 

The laws that provide Copyright and Trademark protection are very different.

A Copyright is a right that you obtain automatically by law when you create original literature or art. There are no formal requirements such as registration. It is the prerogative of the creator whether he/she records the creation, for example by means of an i-Envelope, to provide strong evidence of his/her copyright. This should be considered by every copyright owner as the burden of proof lies with the creator.

A trademark is a sign that distinguishes your goods (products) or services from those of your competitors. A trademark can be represented graphically in the form of your company’s logo or signature. To obtain Trademark protection registration is necessary. Registering your trademark in the Sint Maarten register gives you the exclusive right to use the trademark for the selected goods and services within Sint Maarten, for a(n) (extendable) period of 10 years. 

The registration of your trade name with the Chamber of Commerce is different from the registration of your trademark with BIP. The main objective of the Chamber of Commerce is to register your company, whereas the main objective with BIP is to register your trade name, under which you wish to provide certain goods and/or services. The protection of your trade name, when not being registered as a trademark, falls under the general scope of the unlawful act, meaning that when your trade name is infringed upon, the infringement has to be proven based on an unlawful act. When the trade name is registered as a trademark, the scope of protection extends to trademark law, which gives you a wider protection in the event of infringement. Taken into consideration the burden of proof is lower for the trademark holder and grounds for infringement are more extensive. This gives the trademark holder a stronger right to enforce his trade name.

Considering the Bureau has no authority or legal instruments to conduct any procedures in case of infringement, a law suit will have to be filed with the civil court by the owner of the intellectual property rights. Before going to court, however, the owner may try to settle or negotiate with the party that is suspected of infringing on the intellectual property rights. If that does not resolve matters, the case can be brought before the Court of First Instance to obtain a ruling. In any case, it is highly recommended to consult with a lawyer prior to taking legal action. 

There are several legal reasons why a sign cannot be a trademark. The court can decide that a trademark is not valid for any one of these reasons and declare it to be null and void. The following is an explanation of the main reasons for nullification, the so-called grounds for exclusion.

• The sign is not distinctive. This is the most common ground for exclusion. A trademark is a sign which distinguishes company's goods or services. For example: Don’t register Orange to sell Oranges. More information on a Lack of distinctive character here.
• The sign is deceptive: A logo showing, for example, coffee cannot be registered and used for something else (such as tea or juice) because this could then deceive or mislead the public.
• There are several specific grounds for exclusion apply to shape marks. These are intended to avoid any overlapping with other intellectual property rights (such as design- and patent law). 
• The filed trademark consists of flags, arms and other official emblems of states or international organizations which are registered in accordance with Article 6 of the Paris Convention. This type of trademark can only be registered after permission has been granted by the state or organization in question.
• The trademark is contrary to public policy or accepted principles of morality. In practice this is very rare.

In accordance with the trademark law of Sint Maarten, these marks must be rejected for registration by BIP SXM or can be contested in court after it has been registered.

When you are filling in the application form to register a trademark for Sint Maarten, you are requested (under 10) to provide a list of goods and/or services. The form gives you space to write down the class number(s) and the description. This list of goods and/or services is based on the Nice Classification, which is established by the Nice Agreement of 1957. This system classifies goods and services for the purpose of registering trademarks. The system groups products into 45 classes (classes 1-34 pertain to goods and classes 35-45 to services) and allows users seeking to trademark a good or service to choose from these classes as appropriate. The system makes applying for trademarks internationally a more streamlined process and is specified by the World Intellectual Property Organization (WIPO). (See also: http://www.wipo.int/classifications/nice/en/).

When registering a trademark, you must specify the class numbers as well as describe the specific goods and services within the relevant class. You can do so in two ways:
1. Use the standard class numbers and standard description, as specified in the appendix. Example: Cl 35 Advertising; management of commercial affairs; business administration; administrative services.
2. Use the standard class numbers and provide your own description of the specific goods and services in question.

Example: Cl 35 Advertising and advertising consultancy; advertisement design; technical consulting services for advertising campaigns; the management of commercial affairs; market research and consultancy; marketing and marketing consultancy services; the development, elaboration and implementation of advertising campaigns and other promotional activities and projects. If your goods and/or services are classified under more than three classes, you will be required to pay an additional fee for each additional class.

When your application has been received, BIP SXM makes a note of the date and time of receipt, of which you will receive a confirmation. The data you have stated on the form is entered in our system.

First, a check will be carried out to see whether your application complies with the minimal requirements:
• Is the trademark clearly represented?
• Is there a reference to the name of the applicant (person or company)?
• Are the goods and services clearly described?
• In the event of a collective trademark, have regulations for use and control been included?
• Is the payment of the required fees received?

These are the minimum requirements that must be fulfilled; if they are not, your application is inadmissible. In other words, no application is deemed to have taken place.
The filing date is set at the date on which these requirements have been fulfilled. It is very important that the payment has been received at the same time of the application. Otherwise, the filing date will be postponed to the date at which we receive your payment. The filing date is important for determining priority of your trademark versus the rights of others.

Once the filing date has been determined, your application will become the responsibility of one of our members of staff. They will check whether all the requirements have been fulfilled and contact you if any additional further details are required. The goods and services referred to will then be arranged into classes in accordance with the international Nice classification.
If your application meets the various requirements, your trademark will be registered. This registration will then be published. You will receive a certificate of your registration.
To maintain this exclusive right, you must use and monitor the trademark, ensure timely renewal of your registration and keep the information up to date (if you change your logo, you must submit a new application). You are solely responsible for taking (legal) action against infringers.

A trademark representative in Sint Maarten is:

1. an attorney at law or notary practicing in Sint Maarten; 
2. a professional in the field of trademarks established in Sint Maarten and registered as such at the Chamber of Commerce Sint Maarten; 
3. employed by a company established in Sint Maarten that specializes in trademarks and the registration thereof and registered as such at the Chamber of Commerce Sint Maarten.

These representatives are thoroughly familiar with the relevant legislation, related case law and literature, which means they can help you plan how best to acquire protection and carry out all the administrative tasks on your behalf. They can also administer your trademarks portfolio and assist you in any disputes that might arise. For trademarks representatives registered with BIP SXM click this link.

Considering the Bureau has no authority or legal instruments to conduct any procedures in case of infringement, a law suit will have to be filed with the civil court by the owner of the intellectual property rights. Before going to court, however, the owner may try to settle or negotiate with the party that is suspected of infringing on the intellectual property rights. If that does not resolve matters, the case can be brought before the Court of First Instance to obtain a ruling. In any case, it is highly recommended to consult with a lawyer prior to taking legal action. 

Trademark registration is territorial. Therefore, if a trademark has been registered in one country, protection is only granted for that country. In Sint Maarten registering your Trademark at BIP SXM gives you the exclusive right to use the trademark for certain goods (products) and services within Sint Maarten, for a(n) (extendable) period of 10 years. It is possible to gain International Trademark protection, via a single application, in countries that are member of the Madrid Protocol. This international agreement allows you to obtain protection in a large number of countries which is efficient and cost effective. An International Trademark should be viewed as a package of national trademarks, obtained all at once and at a considerably lower price than if you were to file applications at each individual office.

An International trademark is registered by the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. However, an International application must always be based on a basic application (for example a Sint Maarten trademark), and is therefore always handled by the office of origin.

If a Sint Maarten trademark is used as the basic application, the office of origin will then be BIP SXM. The Bureau will verify whether your International application is in order, and whether it is identical to your Sint Maarten basic registration. The Bureau will then forward your International application to WIPO. Once you have completed the necessary forms, you can send or email them to our office. The fees payable are partly determined by the number of countries for which you would like to obtain protection. 

When filing a national trademark registration, the protection only stretches to Sint Maarten (Dutch side). Sint Maarten is an autonomous country in the Kingdom of the Netherlands and has her own jurisdiction for intellectual property rights. Therefore, to obtain protection internationally, an application for an international trademark registration must be filed. Your Sint Maarten trademark can be used as your base application for your international trademark.