0704853 The particular purpose of this paper is to analyze the legal effect of the implementation in Jamaica of the Intellectual

Property Rights provisions of the World Trade Organization Treaty in regards to dealing with Trademarks. According to the World Intellectual Property Organization, Intellectual Property refers to creations of the mind: inventions, literary and artistic works, symbols, names, images and designs used in commerce. The World Intellectual Property Organization goes further on to state that Intellectual Property is divided into two categories: Industrial property, which includes inventions or creative ideas (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. WIPO also states that any innovation or creative expressions of indigenous and local communities are furthermore Intellectual Property, yet because they are traditional they may not be fully protected by existing IP systems. Access to, and equitable benefit-sharing in, genetic resources also raise IP questions. WIPO's intentional direction, budget and activities are determined by its Member States, who meet in the Assemblies, Committees and other decision making bodies. There are currently 185 Member States. Copyright-based industries have seen an emergence as of recent in playing a significant role as a part of Jamaicas economy and the social order, influencing and altering it as well as traditional sociology and its guiding principles. Copyright production, which has yielded both a profitable and a non-commercial implicit structure, is becoming more and more vital as both an elusive principal resource that is not squandered entirely throughout its use and as a final end user good or service. Copyright is one of seven large varieties of legal defense of intellectual property, the others being patents, trademarks and trade secrets (hidden information), geographical indications, industrial designs, and layout-designs of incorporated circuits. Copyright-based industries use the protection of unique expression provided by copyright and associated rights and, in particular, their protection by genuine enforcement or warnings for it, as the root for investment, employment, and, in the end, creation of income from sales of many different types products or services, or sale of the economic privileges themselves. The classification takes account of the function of government as a supervisory body. A great deal of the progress to date has been based mostly on the labours of private entrepreneurs, many of them in the class of micro, minute and medium-sized enterprises. In some segments, such as marketing services, free-to-air on broadcast TV and radio as well as on cable TV, considerably flourishing large-scale local and international investments, some with assistance from the government, have been taking place in the last two and a half decades in view of the fact of the start of the structural change and trade liberalization practices. Even before that, to facilitate the development of local music in the late 1960s and early 1970s, international investors began to assist the local investors with domestic capital development and implicit knowledge, to transform domestic relative advantage, to market the product locally and

globally in conditions that hoisted Bob Marley and the Wailers, in particular, and Jamaican Reggae and Dancehall, in general, to the vanguard of global music. These many successes have also reflected trends in the escalation of local and international demand for copyright input and output and for some of the profits of the speedily-varying local and global technologies. The government is now beginning to re-examine the desirability and value of adjusting its attention to policy and sustaining expenditures to optimize benefits from the industry in regards to contributions to GDP and employment as well as to trade and taxes, and, in that circumstance, to bring up to date the several modes of financing and nominal support along with the framework of public guidance and organization of the sector. Mounting acknowledgment of the importance of Intellectual Property in world manufacturing and trade, especially in the balance of the losses to piracy, has resulted in momentous developments in the international jurisdictions for regulating the usage of Intellectual Property. In particular, it has led to the conclusion, within the structure of the WTO, of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in 1995 and, within the WIPO, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both forming in 1996. The international copyright agreements set detailed principles for the protection of copyright and correlated rights that ought to be observed and applied by all WTO Member States. Jamaicas Copyright Act of 1993 shields the select rights of owners of copyright material (replication, distribution, adaptation, public performance, and broadcasting). The Act provides a broad-spectrum of exceptions to breach of copyright (reasonable production for the purposes of research, private study, reporting, and analysis). In addition to reasonable production exceptions, educational institutions are given approval for particular and specific exemptions for the exploitation of copyright material. Even though the registration of trademarks was an already well-established form of protection in Jamaica before TRIPS a number of notable changes were brought about by the ratification of the Trademark Act of 1999. This Act came into power in 2001 and repealed the Trademark Act of 1958. It executed the TRIPS Agreement and the Paris Convention for the Protection of Industrial Property. The changes incorporated an increase in the preliminary period of protection from seven to ten years, for numerous classed applications in respect of goods and services, the creation of priority claims by virtue of the Paris Convention. It also offered for the protection of well-known marks, the registration of service marks and collective marks and the likelihood of registering colour and shape marks, with some omissions. Before the implementation of the 1999 Act, an immense majority of Trademark applications were filed by foreign nationals. On the other hand Jamaican citizens are now using the system more intensively. Of the 1, 465 Trademark applications filed in 2004, only 311 were filed by inhabitants of the country. As of January to August 2006, 503 of the 1, 324 filings were made by citizens. There are a few errors in the system, but the Practice Directions and projected changes to the Trademarks Act and Rules are addressing them. The Practice Directions deal with additional allowances for time in inter-party proceedings, the submission of letters of approval regarding the parallel usage or registration of Trademarks, the registration of surnames and the issuance of dual certificates in respect of changes to submission or registration details. Proposals

in favour of amending the Trademarks Act increase the grounds of revocation and offer a cooling-off period in conflicting proceedings. This would permit for the suspension of the time period within which to file the counterstatement towards resolution. The government's Chief Parliamentary Counsel is drafting the amendments. In January 2001 the Jamaica Intellectual Property Office (JIPO) was launched. JIPO gained its rank as a legislative body on February 1, 2002 and is an institute of the Ministry of Industry, Investment and Commerce. As the state Intellectual Property agency, JIPO supplies an essential focal point for the management of Intellectual Property in Jamaica and has the authorization of administering Copyright and Related Rights, Trademarks, Geographical Indications, Industrial Designs, Patents, Layout-Designs (Topographies), New Plant Varieties, Traditional Knowledge and Cultural Expressions as far as intellectual property systems in Jamaica are observed. By offering these services and carrying out these activities, JIPO is focused on enhancing the capabilities of individual creators and innovators, micro, small and medium-sized enterprises, firms and institutions, to generate wealth through the attainment and maintenance of Intellectual Property Rights. JIPO is lead by an Advisory Board selected by the supervision of the Minister. The day-to-day activities of the Office are administered by an Executive-Director with the aid of the Managers of each IP Directorate. The Trade Marks Act, 1999, defines a Trademark as any sign that is capable of being graphically represented and capable of distinguishing the goods or services of one undertaking (i.e. any person, company or business entity) from those of another undertaking A sign may comprise of a word, (as well as a personal name), design, letter, numeral, colour, combination of colours or a mixture of the previous or the form of goods or their packaging. A Trademark, hence identified as a distinguishing sign which identifies specific goods or services as those created or provided by a specific person or corporate entity, for example Pepsi. The period Trademark protection lasts as long as ten years upon registration, and this time can be changed for the foreseeable future, that is, for every ten years, subsequently. Five basic types of Trademarks are trademarks, service marks, collective marks, certification marks and well-known marks. A Trademark protects the owners right of ownership and significance to the Trademark, by guaranteeing that the owner has the exclusive right to use the it to classify his own goods and services, or to approve another entity to use it in return for payment. A registered Trademark allows an owner the assurance of quality of goods and standard of services for which it is used. Having exclusive rights of to the use of the Trademark gives the owner; guarantee that it is only used upon goods of a certain quality, or services which meet a certain standard. Where the owner gives approval to other persons using the Trademark under a license agreement, he is still able to ensure that the goods or services to which it relates, meet his standard of superiority so as to defend his standing and goodwill in the market. Trademarks also form a part of the advertising for the goods and services. It is rather frequently designed to appeal to the consumer, to create awareness and to encourage a feeling of buoyancy in the goods or services to which it relates. Trademark protection also limits the efforts of unjust competitors, such as counterfeiters, from using similar distinctive signs to advertise or promote goods or services of substandard quality, or different goods or services.

Trademark protection is enforceable in the Courts by municipal or illicit action. Trademark owners can commence action by use of civil suits against infringers as well make objections against incidents of Trademark infringement to the Intellectual Property Unit of the Organized Crime Division of the Jamaica Constabulary Force for the commencement of a criminal action. Trademark infringement attracts a fine not surpassing Jamaican one million dollars or incarceration not exceeding twelve months; or to both such fine and imprisonment that is on summary conviction before a Resident Magistrate. Trademark infringement also attracts a fine or imprisonment not exceeding five years or to both such fine and imprisonment, on conviction before the Circuit Court which comprises of the forfeiture of items or a sanction. Where the offender gained from the offence, the amount of the penalty to be determined by the court should be equivalent to the total value of the benefits derived by the offender from the offence. In accord with TRIPS, the act addresses conflicts which may arise involving geographic indications and trademarks where a unknown geographic indication forms part of an already registered or pending trademark in the country where protection is sought.