WORLD TRADE
ORGANIZATIONIP/N/6/ATG/1
28 November 2001
(01-6073)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
CHECKLIST OF ISSUES ON ENFORCEMENT1
Responses from Antigua and Barbuda
Introductory Remarks
As a former British Colony, Antigua and Barbuda inherited its legal system from the United
Kingdom.  Consequently, Antigua and Barbuda has a Common Law legal system as opposed to a
Civil Law legal system.
The system for the enforcement of all rights in general is provided through a combination of
legislation and the Common Law.  Intellectual prope rty rights in Antigua and Barbuda are private
rights and consequently the onus of enforcing those rights lies with the right holder.
Civil and Administrative Procedures and Remedies
(a) Civil judicial procedures and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
The Supreme Court of Judicature (comprised of  the High Court of Justice and the Courts of
Appeal) with a final appeal to the Judicial Committee of the Privy Council.
2. Which persons have standing to assert IPRs? How may they be represented? Are there
requirements for mandatory personal appearances before the court by the right holder?
Which persons have standing to assert IPRs?
The proprietor of the intellectual property right or a licensee may assert his right in the
intellectual property right through civil proceedings.  In the case of trademarks, patents, industrial
designs and layout-designs of integrated circuits, the registered proprietor of the right or the registered
licensee may assert that right.  In the case of copyright and neighbouring rights, and protection of
secret information, the proprietor of the intellectual  property right may assert the right.  There is no
system of registration of the latter category of intellectual property rights.
In relation to enforcement of copyright and neighbouring rights, proceedings may be brought
by anyone claiming to be the owner either as a result of creation, of subsequent operation of the law,
or by virtue of assignment or other transmission of the right(s).  Such enforcement proceedings can
also be brought (except against the owner) by an exclusive licensee.
                                                     
1 Document IP/C/5.IP/N/6/ATG/1
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In the case of trademarks, patents, industrial designs and integrated circuits, and plant
breeders’ rights, the proprietor of the intellectual property right must be recorded on the Register.  In
the case of geographical indications, any interested person and any interested group of producers or
consumers may institute proceedings in the court to prevent any unlawful act.
Unregistered trademarks are enforced by a passing off action under Common Law in which
the plaintiff must show that the defendant has misappropriated some part of the plaintiff’s goodwill.
How may they be represented?
Before the Supreme Court, a natural person may appear in person, but an attorney-at-law
entitled to practise in Antigua and Barbuda must represent corporate entities.
Are there any requirements for mandatory personal appearances before a court by the right
holder?
There are no such requirements.
3. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produc e evidence that lies within its control?
The Courts have the authority to order the production of documents in court by virtue of the
Rules of Court.  In Antigua and Barbuda, a party to litigation has an obligation (either automatically
or upon order of the court) to give discovery of such documents which it may have in its custody,
possession, or power which relate to the issues in the litigation proceedings.  This involves first
producing a list of such documents and then the opposing party has the power to inspect and take
copies of those documents, save where legal or professional privilege is properly claimed, forexample, in relation to communications relating to legal advice or the preparation of witness
statements.  Any breach of this discovery obligation leaves the defaulting party at risk of having his
statement of claim or defence struck out.
There is also the power of the courts to make orders at the start of proceedings for the
protection of evidence in those proceedings if there is a legitimate fear of such evidence being
destroyed.  See the answer to question 10 below, on Anton Piller Orders.
4. What means exist to identify and protect confidential information brought forward as
evidence?
There are no statutory directives given to the court regarding confidentiality and it is entirely
in the court’s discretion as to how they will deal with confidential information brought forward as
evidence.  The onus lies on the party claiming confidentiality of information to apply to the court for
directions as to confidentiality.  If in the exer cise of its discretion, the court determined that the
confidentiality of that information needed protecting, it would order terms and conditions for its
protection. It must be noted that section 34(5) of the Patent Bill states that the Court must take intoaccount the legitimate interests of the alleged infringer in not disclosing his manufacturing and
business secrets.
The courts in Antigua and Barbuda normally hold the substantive trial of litigation in a court
open to members of the public (including journalists).  However, some of the preliminary proceedingsmay be held “in chambers”, that is in a court closed to the public.  The court also has the power to sit
in camera  that is in closed session, where it is satisfied that it is necessary to do so to protect
legitimate secret information.IP/N/6/ATG/1
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5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use ;
- injunctions;
- damages, including recovery of profits, and expenses, including attorney's fees;- destruction or other disposal of infringing goods and materials/implements for
their production;
- any other remedies.
Injunctions
Under their general jurisdiction and under the provisions of the various intellectual property
laws, the courts may grant relief for infringement in  the form of an interim or permanent injunction
and, at the option of the plaintiff, either damages or an account of profits.  Under their general
jurisdiction the courts have the power to order an unsuccessful party to pay the costs of the successful
party.
The courts apply the rule that they may grant an  interim injunction if the court is satisfied that
there is a serious issue to be tried, if the risk of damage to the plaintiff if the injunction is not granted
will not be compensated by an order for damages, provided that the plaintiff gives an undertaking to
compensate the defendant if the injunction is later found by the court to be unjustified.  A permanent
injunction may be granted where the plaintiff establishes infringement.
Damages, including recovery of profits, and expenses, including attorney's fees
Under their general jurisdiction and under the provisions of the various intellectual property
laws, the courts have wide powers to award damages for infringement, or if the plaintiff can beawarded damages in the case of innocent infringement but the quantum of damages will take into
account the fact that the infringement was innocent.  Damages usually include the recovery of
commercial losses associated with the infringement and an award of damages would normally be
accompanied by an order for payment of legal costs incurred by the successful party in the case.
As to the expenses and attorney’s fees, it is the practice in Antigua and Barbuda to order that
costs be taxed if not otherwise agreed.  Under such order the successful party will normally recover a
sum corresponding to the reasonable sums which were reasonably expended in the litigation
(including court costs and attorney’s fees).  If these cannot be agreed between the parties, the
Registrar assesses such costs.  However, as a party will normally spend more money on a case than
the Registrar will consider reasonable, and as the Registrar will disallow all claimed costs for which
there is not sufficient evidence of how the costs have been incurred and of receipts for expenditure, asuccessful party will, in actuality, probably recover only two-thirds of its actual costs.  Where the
court considers that litigation (or a single issue in it) was brought unreasonably, it can make an order
for the costs thereof to be assessed on an “indemn ity basis”.  Under this basis the party’s costs are
assessed as its total costs other than those which were unreasonably incurred.
Destruction or other disposal of infringing goods and materials/implements for their
production
The Courts have an inherent jurisdiction to order defendants to deliver up infringing goods
and copies as well as materials/implements for their production.  Provisions of the Copyright Billallows for the seizure of infringing goods or copies, and the equipment used for making them, and
delivery of the goods, copies or equipment to the right owner, the exclusive licensee or the performer,
or their destruction.IP/N/6/ATG/1
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Under the Copyright Act, if the court directs that copies be forfeited to the State, the copies
must be disposed of as prescribed by regulations.
For patent infringement, a court has statutory power to make an order for the infringer “to
deliver up or destroy any patented product in relation to which the patent has been infringed or anyarticle in which that product is inextricably comprised”.
For infringement of a registered trademark, the court may order the offending sign to be
erased, removed or obliterated from infringing goods, material or articles in the possession, custody or
control of the infringer;  or for such goods, materials or articles to be delivered up to the trademark
proprietor, and the courts can then order their dest ruction. This is not spelt out in the Bill, but the
court does have the power to order any such relief it deems necessary.
For infringement of copyright or neighbouring rights, the court may (as a part of its inherent
powers) similarly order delivery up of infringing works in the custody of the defendant.  In addition,
orders for delivery up and subsequent destruction of infringing goods are also available as part of the
criminal procedure for copyright infringement (see the answer to question 24 below).
The court likewise has inherent powers to ma ke order for delivery up, or destruction, of
articles coming into existence for the purposes of passing off or as a result of knowingly acting in
breach of confidence.
Any other remedies
As an alternative to an award of damages, the owner of copyright or neighbouring rights, a
patent or a new plant variety, upon a find of infrin gement of his rights, may elect to seek, instead of
damages, an account of profits.  This requires the court to assess the profits, which the infringer hasmade as a result of his infringing acts, and to pay these over to the right holder.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the
production and distribution of the goods of services found to be infringing and of their
channels of distribution?
It is within the inherent powers of the courts of Antigua and Barbuda to make such orders,
even (in an appropriate case) prior to a finding of infringement.  The courts will routinely order an
infringer to provide information which identifies th ose who have supplied to him infringing articles,
and also those who have supplied particular means by which these have been made, provided in this
latter case that such means were supplied with knowledge, or a reasonable belief, that such would beused in infringing acts.
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?
Describe provisions relating to the indemnification of defendants wrongfully enjoined
An interim injunction will only be ordered by a court on the basis of the plaintiff giving to the
court an undertaking that will only order an interim injunction, if the defendant is subsequently foundto have been wrongfully enjoined, the plaintiff will pay damages therefore to the defendant.  The
court can require security for such an undertaking to be given, by way of a deposit of money in the
Court’s funds or by providing a guarantee from a bank or other reliable source of funds, and will
normally do so in the case of a plaintiff resident outside the jurisdiction.IP/N/6/ATG/1
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To what extent are public authorities and/or officials liable in such a situation and what
“remedial measures” are applicable to them?
The judges in the courts of Antigua and Barbuda are under the common law immune from
litigation in the even that their decisions may subsequently be overturned, either by an Appellate
Court, or by a court in another case reaching a different conclusion.
The Registrar is generally immune from liability resulting from the performance of her
statutory duties.
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Describe provisions governing the length and cost of proceedings
There are no such provisions in the laws of Antigua and Barbuda.  The Rules of Court
stipulate periods for dealing with various pre-trial matters, which periods can usually be extended by
agreement between the parties, without application to  the court.  However, at any stage, a party may
apply to the court for a specific order that the litigation against the defaulting party be dismissed or for
an order requiring the opposing party to take some step within a defined period, failing which the
litigation should automatically be determined against that party.
Before the substantive trial takes place, there will be many and varied pre-trial procedures
which the parties may be required or choose to employ.  There is first a formal exchange of pleadings,
which sets out the allegations made against a party and the defences that the opposing party proposes
to raise against these.  These pleadings do not set out to enumerate the detailed facts which will haveto be established if the time make admissions which reduces the issues in contention and there
determination of those live issues, for which see the answer to question 3 above.  When these pre-trial
procedures are judged to be complete, the case may be set down for trial.
Provide any available data on the actual duration of proceedings and their cost
There is no useful data available since the duration and cost of proceedings for enforcement
of intellectual property rights depend on the complexity of the particular case and whether (and if so
at what stage) settlement is reached before the trial of the substantive issues.
(b) Administrative procedures and remedies
9. Reply to the above questions in relation to any administrative procedures on the merits
and remedies that may result from these procedures.
Antigua and Barbuda’s intellectual property right legislation does not have provisions for
administrative procedures that deal with infringement.  Administrative determinations are related toregistration rather that infringement.IP/N/6/ATG/1
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Provisional Measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
Under the Common Law system the court has the following powers:
The High Court has power to adjudicate upon enfo rcement of intellectual property rights and
can take provisional measures before full trial on the merits of a case, including the grant of interim or
preliminary injunctions called interlocutory injunctions.
The Court may also grant relief of the type known as an Anton Piller Order after the case in
which this relief was first made.  Under this order, the defendant is required to admit to its premises,
as named in the order, persons named in the order and supervised by an independent attorney to
search for and take into custody any document and things of the type specified in the order in order topreserve such as evidence for a trial.  The defenda nt is also usually enjoined from activity likely to be
an infringement of the stated intellectual property right and is required to make an affidavit disclosing
the source of the articles which have already left the premises.
The courts can also grant what is called a Mareva injunction, again after the case in which it
was first made.  This is an order for the blocking of bank account, and other assets of the defendant
pending review of these by the court.  As with the Mareva injunction, this writ will normally only be
used when it is feared that a defendant will leave the jurisdiction of the court before damages awarded
by the court have been paid.
Yet a further provisional measure, is an application to the court for an interim award of
damages.  To obtain this, the plaintiff must show to th e court that it is likely that at full trial the court
will award substantial damages and that, pending the asse ssment of these at trial, it is just that there
should be an interim payment.  The Court may make it a condition of such payment that the defendant
will take steps to preserve the sum for reparation (with interest) should the court at trial award the
plaintiff no damages, or a lesser sum than the interim payment.
11. In what circumstances may such measures be ordered inaudita altera  parte ?
In cases of exceptional urgency, the High Court will order an injunction on an ex parte  basis,
that is inaudita altera parte .   However, this will only be done when the court is of the opinion that an
immediate injunction is necessary because otherwise the plaintiff is likely to suffer extreme andirremediable harm.  Applications for interim injunctions without notice or ex parte  injunctions are
granted to the applicant for a matter of days only, the applicant must then return to the court at a time
when the defendant can also be present and then seek a renewal of the injunction on the grounds set
out in the answer to question 10 above.  Some of the other types of provisional relief such as
Anton Piller and Mareva Orders normally made on an ex parte  basis in order to surprise the defendant
and thereby prevent it from taking steps to evade the relief ultimately to be awarded by the court.
12. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular relevant time-limits and safeguards to protect the
legitimate interests of the defendant.
Usually the plaintiff is required to institute the action by filing a claim form before applying
for provisional measure.  In cases of extreme urgency, an interim injunction may be granted on an
application without notice by the right holder.  When an order is made in this circumstance, theIP/N/6/ATG/1
Page 7
applicant must within seven (7) days before a date is fixed for further consideration of the application,
serve the respondent personally with the application for the interim order, the evidence on an affidavit
in support of the application, any interim order made without notice, and notice of the date and time
on which the court will further consider the application.
Strict guidelines will be given by the judge granting interim injunction without notice for the
return hearing when the respondent will be afforded an opportunity to be heard.  On the return hearing
the general principles governing interim injunctions will be applied and also key measures in
affording protection to the respondent against dama ges that he may incur in the event that the
provisional measure is proved to be unjustified.  These could include undertakings by the applicant
supported by bond to secure the payment of damages or less commonly be a payment of money into
Court.
13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Describe provisions governing the length and cost of proceedings
Under the laws of Antigua and Barbuda there are no provisions that govern the length or costs
of proceedings for provisional measures.  Provided  that a request for provisional measures is made
promptly, the court will then stipulate a timetable for further procedure and a hearing date will be
fixed.
As provisional relief is usually requested because of the threat of imminent damage to the
interests of the applicant, the court will expedite the timetable in an appropriate way according to the
perceived need for immediate relief.  The appeal court will likewise act with great expedition when it
perceived that is necessary in the public interest.
The normal rules with respect to costs explained in the answer to question 5 above also apply
to applications for provisional measures.  Howeve r, the usual order for costs awarded in respect of
applications for provisional relief is that these only take effect at the end of the substantive trial,
though the court can make an order for “costs to be taxed and paid forthwith”.
Provide any available data on the actual duration of proceedings and their cost
Refer to the previous answer.(b) Administrative measures
14. Reply to the above questions in relation to any administrative provisional measures.
There are no provisions in the laws of Antigua and Barbuda whereby provisional relief can be
given by an administrative body, save as regards border measures discussed in the answers to
questions 15-19 below.IP/N/6/ATG/1
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Special Requirements Related to Border Measures
15. Indicate for which goods it is possible to apply for the suspension by the customs
authorities of the release into free circulat ion, in particular whether these procedures
are available also in respect of goods which involve infringements of intellectualproperty rights other than counterfeit trademark or pirated copyright goods as defined
in the TRIPS Agreement (footnote to Article 51).  Specify, together with relevant
criteria, any imports excluded from the application of such procedures (such as goods
from another member of a customs union, goods in transit or de minimis imports).  Do
the procedures apply to imports of goods put on the market in another country by or
with the consent of the right holder a nd to goods destined for exportation?
Indicate for which goods it is possible to appl y for the suspension by the customs authorities
of the release into free circulation, in particular whether these procedures are available also in
respect of goods which involve infringements of intellectual property rights other than
counterfeit trademark or pirated copyright goods as defined in the TRIPS Agreement
(footnote to Article 51)
Under the inherent jurisdiction of the High C ourt, under Common Law, procedures exist that
enable a right holder who has valid grounds for suspecting that the importation of goods infringe any
intellectual property right (i.e. rights in respect of copyright and related rights, trademarks,
geographical indications, industrial designs, patents and layout-designs of integrated circuits) to applyto the court for an order for the suspension by the Customs Authorities of the release into free
circulation of such goods.  The existing judicial procedures cover the evidence required to be
furnished, security or equivalent assurance, notice to all interested persons, duration of suspension,
indemnification of the importer and of the owner of the goods (and all other person entitled to
indemnification) and right of inspection and information.
In addition to the procedures mentioned and referred to above, and in the answers to
questions 5 and 10, the procedures set out below exist in Antigua and Barbuda.
Section 50 of the Copyright Bill 2001 allows the Antigua and Barbuda Customs Authorities
to seize imported copies of published copyright material if a notice of objection to importation of the
copies has been given to the Comptroller of Customs and Excise.  The material that must be subject ofsuch copies is published works of sound recordings.  Importation of any article by a person for his
private and domestic use is not prohibited under subsection (4) of section 50, which states that a
person will not be liable for any penalty under the Act other than forfeiture of the goods.
Specify, together with relevant criteria, any imports excluded from the application of such
procedures (such as goods from another member of a customs union, goods in transit or
de minimis  imports).  Do the procedures apply to the imports of goods put on the market in
another country by or with the consent of the right holder and to goods destined for
exportation?
The Copyright Bill allows for the interdiction of such goods where their importation is
prohibited by the copyright owner.  See the answer  given to question 15 above.  As to the import of
goods put on the market in another country, the Patents Bill and Industrial Designs Bill provide
expressly for national exhaustion.  The Trade Marks Bill and the Layout-Desig ns Bill do not contain
an express provision on the level of exhaustion.IP/N/6/ATG/1
Page 9
16. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirements
related to the duration of suspension (Artic le 55).  How have Articles 53 (security or
equivalent assurance), 56 (indemnification of the importer and of the owner of thegoods) and 57 (right of inspection and information) been implemented?
Section 50 of the Copyright Bill states that th e competent authority to suspend the release of
the goods is the Comptroller of Customs and Excise.
To initiate the seizure of copies or counterfeit goods, the copyright owner, exclusive licensee
or authorised user must provide a written notice of objection to importation to the Comptroller ofCustoms together with any prescribed documents.  A notice remains in force for a period not
exceeding five years from the day on which the notice is given and shall not extend beyond the end of
the period for which the copyright may subsist.  The Comptroller may not seize copies or goods
unless the copyright owner, exclusive licensee or th e trademark owner of authorised user provides a
security to cover the expense that may be incurred by the Comptroller.
Under the Copyright Act, the Comptroller may seize copies if a written notice of objection
has been given to the Comptroller, and if the copies are imported into Antigua and Barbuda for trade
or some other purpose that will prejudicially affe ct the owner of copyright or neighbouring rights.
Under the Trade Marks Bill, if goods have a trademark that is identical with, or deceptively
similar to, a notified trademark and are goods in a class for which the trademark is registered, the right
holder can obtain an order for the detention or seizure of such goods, and he will then notify the
Comptroller of Customs who will seize the infringing goods in accordance with the order.
Section 6(2) of the Bill gives this right to the right holder in this particular case.
Once goods or copies have been seized, the Comptroller must give notice of the seizure, to
the objector and the importer or owner, and th e notice must identify the copies or goods.
If an infringement action has not been started within the required time the Comptroller must
release the seized copies or goods to their importer or  designated owner.  This will be spelt out in the
Copyright Regulations.  Under the Regulations, the Comptroller will be able to release the seizedgoods to their designated owner at any time before the end of the action period, if new information
has come to hand after the seizure which demonstrates that there are no reasonable grounds for
believing that the notified trademark or pirated copies were infringed and no action for infringement
has been brought by the objector.  In addition, the Comptroller may permit the objector and the
designated owner sufficient opportunity to inspect and remove a sample of the seized copies.
In deciding the infringement case, the court may order that the seized copies of goods be
released to their importer or designated owner subjec t to conditions (if any) that the court considers fit
to impose, or it may order that the seized goods be forfeited to the State.  Under the Trade Marks Bill,
if the court decides that there was no infringement  and the designated owner, or defendant to the
infringement action, suffers loss or damage, the objector may be ordered to pay compensation.
The Customs (Management and Control) Act will be amended to incorporate the necessary
measures for the enforcement of intellectual property rights especially the enhancement of the powers
of Customs and other officials operating under this Act.IP/N/6/ATG/1
Page 10
17. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of
decisions by the competent authorities for the suspension of the release of goods into free
circulation?
Under the Common Law system, judicial measures may be applied in border situations and in
this regard the answer to question 8 above is applicable.
How long is the validity of decisions by the competent authorities for the suspension of the
release of goods into free circulation?
Neither the individual Bills on intellectual property nor the Customs (Control and
Management) Act of 1993 have any provision placing a time limit on the suspension of the release of
goods into free circulation.  If there is to be a time limit for a particular action to take place in order
for the Comptroller of Customs to authorise their release, then the order from the court will specify
accordingly.
18. Are competent authorities required to act upon  their own initiative and, if so, in what
circumstances?  Are there any special provisions applicable to ex officio  action?
Are competent authorities required to act upon their own initiative and, if so, in what
circumstance?
There is no provision requiring ex officio  action by Customs Authorities.  All actions must be
initiated by the copyright owner or exclusive licen see or by the owner (or in some circumstances an
authorised user of a trademark) of the industrial property right.  Under the Copyright Bill, copies may
only be seized if the copyright/neighbouring rights owner or exclusive licensee gives a notice ofobjection to the importation of the copies.
Are there any special provisions applicable to ex officio  action?
No, there are no such provisions.
19. Describe the remedies that the competent authorities have the authority to order and
any criteria regulating their use.
The Customs Authorities are not empowered to order remedies for infringement.  They can
seize infringing copies of counterfeit goods and dispose of those copies or goods if they are forfeited
by the importer (Copyright Act) or by a decision of the court.  All remedies are decided by the courts.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
The Magistrates’ Court, in respect of summary offences, the Criminal Assizes, in respect of
indictable offences and (on appeal) the Court of Appeal have jurisdiction over criminal acts of
infringement and final appeal lies to the Judicial Committee of the Privy Council.
21. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
An offence of trademark infringement is committed under section 23 of the Trade Marks Bill.
The detailed provision of this enactment can be summarised as applying when there has beenIP/N/6/ATG/1
Page 11
unauthorised use of a registered trademark (or of a mark likely to be mistaken for such a mark) by
way of application of such mark to goods or to their packaging, or by the sale, possession, custody or
control of such goods, or where such mark, or where a person has possession, custody or control of
such goods, or where such mark is applied to labelling or packaging of goods, or used in a business
paper or in advertising in relation to goods, provided  in each case that the action has been taken with a
view to gain for himself or another, or with inte nt to cause loss to another, and, anyway, without the
consent of the proprietor.
These offences are also extended to possession, custody or control of material for use in
labelling, packaging or advertising goods bearing such a mark, and to the making, possession, custody
or control of articles specifically designed or adapted for making copies of such mark, provided in
each such case that the activity has been “in the course of business”.
However, no offence is committed under these summarised provisions unless the goods in
question are goods for which the mark is registered or unless the trademark has such a reputation in
Antigua and Barbuda that its unauthorised use would take unfair advantage of, or be detrimental to,
the distinctive character or the repute of the trademark, and also where the defendant is able to showthat he believed on reasonable grounds that his actions did not involve a (civil) infringement of the
trademark registration.
An offence of infringement of copyright or neighbouring rights is committed under the
provisions of section 46 of the Copyright Bill.  Under this provision, an infringement of any right
protected under the Act for profit-making purposes committed by a defendant who “knows or has
reason to believe” that he is infringing is an offence.
Under section 21(3) of the Industrial Designs Bill the performance, intentionally, of any act
under section 9 including making, selling, importing for commercial purposes, constitutes andoffence.
Under section 15(1) of the Integrated Circuits  Topography Bill, the performance, knowingly,
of any act under section 6, including making, reproducing, importing, selling or otherwise distributing
the infringed product for commercial purposes, constitutes an offence.
Under section 34 of the Patents Bill, the performance of any act listed in section 11 without
the right holder's consent, constitutes an infringement.
22. Which public authorities are responsible fo r initiating criminal proceedings? Are they
required to do this on their own initiative and/or in response to complaints?
The Antigua and Barbuda Police are responsible for investigating suspected offences under
any legislation creating criminal offences.  This will include intellectual property legislation, whether
or not complaints have been received.  The decision on whether to prosecute for a suspected offence
is a matter for the Director of Public Prosecutions.  In practice, most police action results from
complaints and information received.  This does not preclude a private prosecution for these offences(see the answer to question 23 below).
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
Yes, any person or body having sufficient personal or public reason for seeking enforcement
of the criminal law can bring a prosecution.  However, a fiat to prosecute must be obtained from the
Director of Public Prosecutions.IP/N/6/ATG/1
Page 12
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- imprisonment;
- monetary fines;- seizure, forfeiture and destruction of infringing goods and materials and
implements for their production;
- other.
Copyright
Under section 46 of the Copyright Bill, the penalty for infringement for profit-making
purposes by a person knowing or having reason to believe that he is committing an
infringement, in summary conviction is a fine between $5000.00 EC and $10,000.00 EC and
to two or three years imprisonment, depending on the type of infringement.
Where there has been no decision on such remedies in civil proceedings, the magistrate has
the authority to order the impounding of suspected copies of works on sound recordings, as
well as the packaging of the implements that could be used for the making of, and the
documents, accounts or business papers referring to such copies;  to order the forfeiture and
seizure of all copies of works or sound recordings manufactured, reproduced, distributed, sold
or otherwise used, intended for use or possessed with intent to use in contravention of therights of the owner and all plates, moulds, masters, tapes, film negatives or other articles by
means of which such copies of works or sound recordings may be reproduced and all
electronic, mechanical or other devices for manufacturing, reproducing or assembling such
copies of works or sound recordings;  to order the destruction or other reasonable disposition
of infringing copies and their packaging outside the channels of commerce;  where there isdanger that implements may be used to commit or continue to commit acts of infringements,
to order their destruction or reasonable disposition outside the channels of commerce.
Where an offence under section 46 committed by a body corporate is proved to have been
committed with the consent or connivance or attributable to neglect on the part of any
director, manager, secretary or person purporting to act in any such capacity, he as well as the
body corporate is guilty and liable to the above penalties.
Trademarks
Under section 23 of the Trade Marks Bill, it is an offence for a person to apply to goods or
their packaging a mark identical to, or likely to be mistaken for, a registered trademark, sell orlet for hire, offer or expose for sale or hire or distribute goods which bear or the packaging of
which bears such a mark, has in his possession, custody or control in the course of a business
any such goods with a view to the doing of anything by himself or another which would be an
offence as mentioned above.  The penalty on summary conviction is a fine of $100,000 and
imprisonment for five (5) years.
.
Patents
Under section 34 of the Patent Bill, it is an offence for a person to knowingly and wilfully
make, import, offer for sale, sell, use the product, or the stocking of the product for sale oruse, or the use of the process patented without the consent of owner or the licensee of.  The
penalty on summary conviction is a fine of $100,000 and imprisonment for three (3) years.IP/N/6/ATG/1
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Industrial designs
Section 21 provides that any person who k nowingly makes, sells, or imports articles
incorporating the industrial design without the consent of the right holder commits an offence.
The penalty on summary conviction is a fine of $50,000 and imprisonment for three (3) years.
Integrated circuits and topography bill
Under section 15 it is an offence to perform any of the acts listed in section 6 without the
authorisation of the right holder.  These acts include the reproduction of the protected layout-
design in its entirety or any part thereof, importing, selling, or otherwise distributing for
commercial purposes the protected design or integrated circuit incorporating the layout-design.  The penalty on summary conviction is a fine of $10,000.00 and imprisonment for
five (5) years, and the court may also order the seizure, forfeiture and destruction of the
layout-designs, integrated circuits or articles concerned and of any materials or implements,
the predominant use of which has been in the commission of the offence.
Geographical indications
Section 7 provides that any person who knowin gly and with intent to deceive, performs any
act of the acts referred to in section 3, such as the means in the designation or presentation of
a good in question originates in a geographical area other than the true place of origin,commits an offence.  Any use constituting an  unfair competition within the meaning of
Article 10 bis of the Paris Convention, and the use of a geographical indication identifying
wines or spirits not originating in the place indicated, are also offences.  The penalty on
summary conviction is a fine of $50,000 and imprisonment for three (3) years.
25. Describe provisions governing the length and any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
There are no provisions governing the length and cost of proceedings.  See the answer to
question 8 above.
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