The Tribune

• Innovators head abroad for greater protection

• Urgent IP upgrades to halt 'worrisome' trends

• Otherwise innovation, cultural economy halts

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bahamians made 3,000 more trademark protection applications abroad than at home during the five years to 2022, it has been been revealed, with government income from the sector "stagnant" for a decade.

A presentation to the Davis administration's Cabinet, dated December 5 this year, discloses how The Bahamas' ambitions to develop an innovation-driven economy and unlock the full earning potential of its cultural and creative industries is being undermined by an outdated intellectual property rights regime not fit for the 21st century.

The 34-page document, likely put together by Ryan Pinder KC, the attorney general, and released alongside proposed legislative and regulatory reforms to overhaul The Bahamas' intellectual property rights safeguards, highlighted what it branded as "worrisome" trends in local trademark, patent and copyright registrations stemming from "a loss of competitiveness" in the sector.

When it came to trademarks, which are defined as signs or symbols that distinguish a particular company's goods or services from those of its competitors, the Cabinet presentation highlighted the growing tendency of Bahamian creators to seek protection for their products from more robust overseas intellectual property (IP) rights regimes.

"For The Bahamas with a relatively weaker legal framework for IP protection as compared to Caribbean neighbours, a much larger portion of Bahamians opt for protection of IP internationally as compared to Caribbean counterparts," it said.

"Over the period 2018 to 2022, a total of 7,275 trademark applications were made by Bahamians abroad, while only 4,205 patent applications were recorded domestically... Should the additional 3,070 applications have also been filed locally, Registrar General fees would have increased by more than $153,000 under the current fee structure.

"Notably, over the same period, regional leaders in trademark applications include the Dominican Republic (58,007); Jamaica (14,902); Cuba (12,468) and Trinidad & Tobago (8,474)."

Among the sectors identified as benefiting from the proposed trademark and other IP reforms, which have been put out to consultation until March 15, 2024, are producers of local jams, jellies and pepper sauces, plus locally produced salt, and the branding of Junkanoo products, bonefish lodges and Bahamian artists.

Pointing to increased brand recognition from labels such as 'Made in China', which has helped boost exports as well as domestic purchases, the Cabinet presentation added: "The opportunity exists to create and promote a similar 'Made in The Bahamas' collective brand, particularly to provide support to small businesses and collectives

"Such a brand may support locally manufactured and produced products such as straw bags, pepper sauces, local jams/jellies and other products with significant Bahamian content. The use of a collective trademark must be deployed in tandem with a process to monitor product quality standards to ensure the long-term viability of the trademark."

Meanwhile, The Bahamas was also witnessing similar trends with patent and copyright registration. Over the five years between 2018-2022, local patent applications had declined from a peak of around 35 per year to just over 20 in 2022. During the same period, foreign patent applications by Bahamians had risen from a low of just over 20 in 2020 to more than 50 in both 2021 and 2022.

On trademark applications, while the local variety has climbed slowly to under 1,500 by 2022, Bahamians had filed some 2,000 such submissions abroad. And, on industrial design (copyright) applications, those made by locals in foreign countries had recovered from a COVID-induced dip in 2020 to again exceed local submissions in 2022.

"Save for the spike in domestic IP registrations during the COVID-19 pandemic period, there has been a trend of low domestic IP registrations and a preference for Bahamians to register IP abroad," the Cabinet presentation said.

Patents, which are designed to protect an innovator's creativity or the 'fruits of their mind', are issued to protect inventions from being stolen, copied or pirated. They are applied to products and processes that offer "a new way of doing something" or a new solution to a long-standing problem.

"Over the period 2018 to 2022, a total of 214 patent applications were made by Bahamians abroad, 91 applications more than the 123 registered domestically during the period," the report to Cabinet said.

"Notable outliers are Antigua and Barbuda (2,207) and Barbados (3,707), who have significant patent filings by citizens/residents abroad. The new framework is hoped to reverse this trend to encourage more domestic patent applications in line with regional trends." Overseas patent applications by Bahamians thus exceeded the domestic variety by almost 74 percent over those five years.

Among the opportunities that could be stimulated by more robust Bahamian patent protection, the Cabinet presentation said, is "local, unique salt extraction and production processes". The upgrades contained in the package of proposed IP reforms, it added, could help strengthen brands and increase the value of Bahamian salt products.

"The Bahamas has operated in the niche sea salt production marketplace for generations, using creative methods to extract mineral rich salt from local salt ponds and flats, and has only entered the commercial salt market in the 1900s," the Cabinet presentation added.

"The local extraction method itself, tied to environmentally sustainable practices, itself may offer unique patent and branding opportunities in sustainable harvesting. Similarly, branded products retail for $0.25 per ounce ($4 per pound) and more, attributed to the boosted health options and high mineral content associated with the natural harvesting methods."

As for copyright, which is typically used to protect the creativity in literary and artistic works, ensuring that the creators of books, music and films receive due and appropriate compensation for use of their works, Bahamians again sought refuge abroad in greater numbers.

"Over the period 2018 to 2022, a total of 109 copyright applications were made by Bahamians abroad, while only 50 such applications were filed locally during the period," the Cabinet presentation said. "Regional leaders in this category include Jamaica (836), Belize (343) and Dominican Republic (134).

"The low level of domestic copyright applications is in stark contrast to the more then 110 musicians, performers, playwrights and registered parties who produce copyrightable material. Concurrent with growth and development of the local tourism sector is the need to expand and develop a local cultural identity to support the sector.

"Expansion of copyright protection provides the base to ensure local artisans in the sector are duly compensated for their artistic work. Based on Government data, there are more than 110 licensed performers, painters, writers and other persons engaged in the creative economy space who may potentially benefit from an expanded framework."

The Cabinet presentation suggested that the proposed upgrades would provide Bahamian artists with greater protection against the unauthorised use of their work both domestically and abroad, thus ensuring they retain the necessary rights, are able to receive the remuneration that is due to them and initiate legal action against violators.

It thus reiterated that The Bahamas' ambitions of becoming a technology hub, and realising the potential of its cultural or 'orange' economy, may never be realised without strengthening IP protections for both those industries.