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Rights and protection
Is ownership of a trademark in your jurisdiction determined on a first-to-file or first-to-use basis?
Ownership is determined on a first-to-use basis.
What legal protections are available to unregistered trademarks?
Owners of unregistered trademarks must rely on the common law tort of passing off. The Trademarks Act (6/1906) specifically prohibits seeking injunctive relief or damages for infringement of an unregistered mark.
How are rights in unregistered marks established?
Rights in an unregistered mark are established through local use of the mark.
Are any special rights and protections afforded to owners of well-known and famous marks?
Under certain circumstances, the owner of a well-known mark may register it defensively in additional classes without using it in relation to those classes. To qualify for these defensive registrations, the mark must be an “invented word or invented words”.
To what extent are foreign trademark registrations recognised in your jurisdiction?
The Bahamas allows for applications with Paris Convention priority dates based on existing foreign rights and applications made in convention countries.
What legal rights and protections are accorded to registered trademarks?
The owner of a registered mark has the exclusive right to use it on and in connection with the goods for which it is registered.
Who may register trademarks?
Natural persons, partnerships and business entities may register trademarks.
What marks are registrable (including any non-traditional marks)?
Registerable trademarks must contain at least one of the following:
- the name of a company, individual or firm represented in a special or particular manner;
- the signature of the applicant or its predecessor in business;
- an invented word or words;
- other words that do not refer to the character or quality of goods and are not a surname or geographical name; or
- any other distinctive mark.
Numerous features are prohibited from being part of a registered mark, such as symbols, arms, crests and flags relating to a nation, international organisation or the British royal family. The registrar may also require proof of consent to use a living person’s name.
Can a mark acquire distinctiveness through use?
Yes. The Trademarks Act specifically allows the registrar to consider the extent to which an applied-for mark has acquired distinctiveness through the applicant’s use.
On what grounds will a mark be refused registration (ie, absolute and relative grounds)?
An application for the registration of a mark will be examined on both absolute and relative grounds. The registry will conduct a search of registered marks and applications to determine if the mark is similar to other registered or applied-for marks concerning the same goods.
Are collective and certification marks registrable? If so, under what conditions?
Certification marks are allowed to distinguish the “origin, material, mode of manufacture, quality, accuracy or other characteristic” of certified goods from that of uncertified goods. The applicant cannot carry on a trade in the goods concerned. The applicant must deposit approved regulations for the use of the certification mark with the Intellectual Properties Section of the Registrar General's Department. These regulations are open to public inspection. The registrar must consent to the transfer of a certification mark.
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