WORLD TRADE  
ORGANIZATION   
IP/Q/CUB/1 
IP/Q2/CUB/1 IP/Q3/CUB/1 
IP/Q4/CUB/1 2 November 2012 
 
(12-6006) 
Council for Trade-Related Aspects of 
Intellectual Property Rights Original:   Spanish 
 
 
 
REVIEW OF LEGISLATION 
 
CUBA1 
 
 
 The present document reproduces the responses given by the delegation of Cuba in connection with the review of national implem enting legislation initiated at the Council's meeting 
of 27-28 November 2001.
2 
 
_______________ 
 
 I. RESPONSE TO THE QUESTION POSED BY AUSTRALIA
3 
A. PATENTS (INCLUDING PLANT VARIETY PROTECTION ) 
1. How does your country provide protection for new plant varieties as required under 
Article 27.3(b)?  If your legislation is based on the UPOV system, on which UPOV Act was 
it modelled?  Can new plant varieties be protected by patent in your country?  
  Plant varieties are protected under the regime established by Decree-Law No. 291 
of 20 November 2011 on the protection of plant varie ties, which entered into force on 2 April 2012.  
The list of species to which this regime appli es will enter into effect upon publication in the 
Official Journal ( Gaceta Official ). 
  Although Cuba is not a member of the UPOV sy stem, the legislation is based on this system, 
with regulations modelled on provisi ons from the Acts of 1978 and 1991. 
  New plant varieties cannot be protected by patents. 
 
                                                      
1 As regards laws and regulations notified by Cuba under Article 63.2 of the Agreement, reference is 
made to documents IP/N/1/CUB/1, IP/N/1/CUB/2, IP/N/1/CUB/G/1, IP/N/1/CUB/G/2, IP/N/1/CUB/T/1, 
IP/N/1/CUB/T/2, as well as the following documents to be circulated: IP/N/1/CUB/3, IP/N/1/CUB/D/1, 
IP/N/1/CUB/P/1, IP/N/1/CUB/L/1, IP /N/1/CUB/O/1 and IP/N/1/CUB/I/1. 
2 This document replaces Cuba's earlier replie s in documents IP/C/W/3 21, IP/C/W/321/Add.1, 
IP/C/W/321/Add.2, IP/C/W/321/Add.3 and IP/C/W/321Add.4. 
3 IP/C/W/328, dated 26 November 2001. IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 2 
  
  II. RESPONSES TO THE QUESTIONS POSED BY CANADA
4 
1. Please describe how the enforcement obligations (Articles 41-61 of the 
TRIPS Agreement) have been implemented. 
 
 See replies in the Checklist of I ssues on Enforcement (IP/N/6/CUB/1). 
 
2. What protection does your copyright legislation afford to "foreign works"? 
  No legislation consistent with the TRIPS Ag reement has yet been adopted in this area. 
 III. RESPONSES TO THE QUESTIONS POSED BY THE EUROPEAN UNION
5 
A. GENERAL PROVISIONS  
1. Please describe if your legislation includes measures necessary to protect public health 
and nutrition, and to promote the public int erest in sectors of vital importance to your 
socio-economic and technological development as mentioned under Article 8 of the 
TRIPS Agreement.  If yes, please explain how su ch measures are consistent with the provisions 
of the TRIPS Agreement. 
 
 Decree-Law No. 290 of 20 November 2011 on i nventions and industria l designs and models, 
which entered into force on 2 April 2012, contains  provisions to protect public health and nutrition 
and to promote the public interest in sectors of vital importance to socio-economic and technological 
development.  Consideration has been given to the flexibility provided for in Articles 7, 8, 30 and 31 
of the TRIPS Agreement, which is supported by the Doha Ministerial Declaration on the 
TRIPS Agreement and Public Health. 
 
B. COPYRIGHT AND RELATED RIGHTS  
2. Please state how your legislation provides for the protection of the exclusive rights 
of authors in relation to their literary and artistic works, as specified in Article 9 of the 
TRIPS Agreement which requires Members to comply with Articles 1-21 of the 
Berne Convention and the Appendix to the Berne Convention (1971). 
 
3. Please describe the protection accorded to  authors of computer programs, databases or 
compilations of data. 
 
4. Please state whether your legislation provides for a rental right and, if so, the works to 
which it applies. 
 
5. Please describe the rights granted to performers, producers of phonograms (sound recordings) and broadcasting organizations under your legislation. 
 
6. Please state whether your legislation provides for any limitation or exception in relation to each of the rights described above in accordance with the relevant provisions of the 
Berne and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement. 
 
                                                      
4 IP/C/W/314, dated 18 October 2001. 
5 IP/C/W/320, dated 19 November 2001.  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 3 
  
  7. Please state the terms of protection of each right described above and the work or 
subject-matter to which it applies. 
 
8. Please state how your legislation grants the retroactive protection provided pursuant to Article 18 of the Berne Convention (the obligat ion of which derives from Article 9 of the 
TRIPS Agreement) and Article 14.6 of the TRIPS Agreement.  
9. Please explain whether the droit de suite  provided for in Article 14 ter of the 
Berne Convention is protected in your legislation.  
 No replies have been received to questions 2 to  9 above.  As yet, no legislation consistent 
with the TRIPS Agreement has been adopted in this area. 
 C. T
RADEMARKS  
10. Please give the definition of a sign under your national legislation and explain under 
what conditions it is protectable. 
  Distinctive sign:  "Any sign which constitut es a trademark, a trade name, a company emblem, 
the title of an establishment or a commercial logo."  
 Trademark:  "Any sign or combination of signs that serves to distinguish products or services 
from similar products and services in the market."  
 Article 3.1 of Decree-Law No. 203 stipulates that the following may constitute trademarks: 
 
(a) Denominative signs such as letters, word s, figures and any combinations thereof; 
 (b) figurative signs such as images, figures, drawings, symbols and graphics as well as the 
colour, provided it is defined by a give n form, and combinations of colours; 
 (c) mixed signs made up of a combinati on of denominative and figurative signs; 
 
(d) three-dimensional shapes, provided they can be delimited from the product, including 
wrappers, packaging, the shape of the product or the way it is presented; 
 
(e) smells;  
(f) sounds and combinations of sounds. 
  The names of specific persons may constitute de nominative signs, subject to authorization in 
the form of a public document, and provided it does not involve deception or confusion of the public.  
 
 In principle, distinctive signs are protectable as long as they are not covered by any of the 
absolute or relative prohibitions established in Articles 16.1 and 17.1 of Decree-Law 203.  In a 
general sense, they must have  the capacity to distinguish per se  and in respect of the rights of 
third parties. 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 4 
  
  11. Please confirm whether or not services are a protectable subject-matter in your 
trademark law.  Please confirm if signs, such as  trade names, are protectable.  Please describe if 
elements such as sound, perfumes and containers are protectable.  
 
 Services can be distinguished by protectable  distinctive signs under Articles 2 and 45 of 
Decree-Law 203.   
  Trade names and three-dimensional shapes are also protectable provided they can be 
distinguished from the product:  these include wrappings, packaging, the shape of the product and the 
way it is presented as well as sound and olfactory marks (Article 3(d), (e) and (f) of Decree-law 203).  
 
 However, as established in Article 2(a) with r espect to Article 3.1(e) and (f), the registration 
of sound and olfactory marks is subject to a ruling by the Minister of Science and Technology and the 
Environment until such time as the necessary conditions for their regist ration have been established in 
accordance with the Second Final Prov ision of the said Decree-Law.   
 
12. Please explain what the requirements of use are, if any, as a condition for a trademark 
registration.  Please explain the definition of  use and the conditions of maintenance of a 
registration in that respect.  
 There are no requirements of use as a cond ition for a trademark registration.  However, 
in order to maintain the registration of a mark and ensure that it is not revoked, ex officio or by 
petition, real and effective use is a requireme nt under Article 64, which stipulates that:  
 
 "Trademarks shall be revoked when: 
 
(a) The period of validity expires wit hout their having been renewed;  and 
 
(b) the owner has not made real or effective use of the trademark in the national territory 
during three consecutive years following the date on which it was granted and during its validity, or when such u se has been interrupted for the same amount of time prior to 
the action for revocation." 
  Article 65.1, for its part, states that "when the use of a mark begins after the period mentioned 
in indent (b) of the previous article has elapse d, such use shall only prevent the registration from 
being revoked if it has begun at least three mont hs prior to the date on which the petition for 
revocation was filed." 
 
 Similarly, Article 53.1 of Decree-Law 203 states that:  
 "The trademark shall be considered to be  in use when the products or services that it 
distinguishes have been offered for sale, through channels of distribution or commerce, or are 
available to the end user within the national te rritory under that trademark, continuously, in 
the usual quantity and form, bearing in mind the size of the market, the nature of the products 
or services concerned and the conditions under which they are marketed. 
 
 The definition of the use of a trademark shall also include:  
(a) Utilization in respect of products intended  for export from the national territory or in 
respect of services offered abroad from the national territory;  and 
  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 5 
  
  (b) utilization in advertising, even when su ch utilization precedes the introduction into the 
market of the products or services in  question, provided such introduction 
actually takes place no later than two m onths following the launching of the 
advertising campaign." 
 
 Article 54 of the said Decree-Law states that:  
  "A trademark shall be considered to be in u se when it corresponds to the trademark registered 
in the Office.  However, the use of the trademar k in a form different from that in which it was 
registered only with respect to details or features that are not essential and do not alter its identity shall not constitute grounds for revocati on of registration for non-use, nor shall it 
lessen the protection afforded". 
  Use by the licensee shall be treated in the same way as use by the owner (Article 65.3). 
 
 When the non-use of a trademark is lawfully justified in the eyes of the Office, revocation 
shall not be declared ex officio or by petition once the opinion of the owner has been 
heard (Article 66). 
 
13. Please confirm whether or not your legislation permits that the registration of 
trademarks be indefinitely renewable. 
 
 Under our legislation, the initial duration is te n years from the date of the submission of the 
application.  It is indefinitely renewable by successi ve periods of ten years at the request of the owner 
and subject to payment of the established fee (see Article 48 and 49.1 of Decree-Law 203). 
 
 The procedure for the renewal of a regist ration is regulated by Articles 81-84 of the 
Regulations to the said Decree-Law, made opera tional by Resolution No. 63 of the Ministry 
of Science, Technology and the Environment. 
 
14. Please describe the special requirements, if any, prescribed by your legislation 
concerning the use of a trademark. 
 
 Title III (Administrative Procedure before th e Office), Chapter II (Processing), Section Five 
(Procedure for the Declaration of Nullity, Cancel lation and Revocation of Registrations) of the 
Regulations to Decree-Law 203 on trademarks la ys down the rules governing this process before 
the Office. 
 
 Under Article 54 of the said Decree-Law, a trademark is considered to be in use when it corresponds to the trademark registered in the Office.   However, the article goes on to state that the 
use of a trademark in a form different from that in which it was registered only with respect to details 
or features that are not essential and do not alter its  identity shall not constitu te grounds for revocation 
of registration for non-use, nor shall it lessen the protection afforded. 
  Finally, Article 63.2 of the said Decree-Law, stipulates that: 
 
 "In a revocation procedure for non-use, it is up to the owner to prove the use of 
the trademark." 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 6 
  
  D. G
EOGRAPHICAL INDICATIONS  
15. Please explain whether or not your trademark registration authority refuses a 
trademark application if it contains a geographical indication. 
 
 The trademark registration authority, the C uban Industrial Property Office, may refuse a 
trademark application, given that the regulator y provision on this industrial property measure 
establishes, as an absolute prohibition on trademark registration, that a sign composed exclusively of 
indications used in trade to designate the geogra phical origin of a product or service may not be 
registered as a trademark. This provision also st ates, as a relative prohibition, that a sign which 
contains or consists of a geographical indication protected in Cuba, and which applies to the same 
products, different products or services, may not be registered as a trademark if its use would result in 
the likelihood of mistaken association with th e protected indication or would involve unfair 
exploitation of its re putation and renown. 
 16. Please give the definition of a geographical indication in your legislation. 
 
 The existing regulatory provision defines geographical indications as those which identify a 
good as originating in a country, region or locality  when a given quality, reputation or other 
characteristic of the good is essentially attributable to its geographical origin.  17. Please describe and explain the provisions of your legislation establishing a link, if any, between the characteristics of an i ndication and its geographical origin. 
  Cuban legislation, both in its definition of geographical indications and in the concept of 
"appellation of origin" therein, provides for the dou ble link between the geographical name used as a 
denomination and the product identified by the sign; in  this respect, it establishes that the appellation 
of origin is the geographical denomination or anot her sign relating to a coun try, region or locality 
used to designate a product which originates ther ein, when a given quality, reputation or other 
characteristic is essentially attributable to its geogr aphical origin, including natural and human factors. 
 
18. Please describe how additional protection is granted by your legislation to wines and 
spirits.  Please mention other types of products, if any, covered by this additional protection. 
 
 The regulatory provision grants the additiona l protection established in Article 23 of the 
TRIPS Agreement  for wines and spirits to all products. 
 
19. Please explain how exceptions under Articl e 24 of the TRIPS Agreement are used in 
your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of 
names considered as generic in your jurisdiction. 
  The regulatory provision incorporates the excepti ons provided for in Article 24.4 and 24.5 of 
the TRIPS Agreement. No such cases have been heard in our courts. We are unaware of the existence 
of lists containing generic names. 
 E. I
NDUSTRIAL DESIGNS  
20. Please explain whether or not your legislation extends to the protection of designs 
dictated essentially by technical or functional considerations.  Please explain how textile designs 
are protected. 
  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 7 
  
   Decree-Law No. 290 of 20 November 2011 on i nventions and industria l designs and models, 
which entered into force on 2 February 2012, re gulates the protection of industrial designs and 
models on the basis of aesthetic or ornamental co nsiderations unrelated to technical or functional 
considerations. 
 
 Articles 91 and 92, respectively, provide definitions for both types of creation. 
  An industrial design consists of any plane elem ent or combination of plane elements, of an 
aesthetic or ornamental nature, such as shapes, co lours, patterns or textur es, whether or not in 
relief, which, when incorporated into an industrial or artisanal product, gives that product a special 
appearance that distinguishes it from similar products  and may serve as a prototype for its industrial 
or artisanal manufacture. 
  An industrial model is any industrial or ar tisanal volumetric product, or parts thereof, 
the shape, configuration, texture or material, or  combination thereof, of which gives it a special 
appearance of an ornamental or aesthetic nature that distinguishes it from similar products and may serve as an industrial or artisanal prototype. 
 
 Textile designs are protected in the same way as industrial designs, while the aesthetic or 
ornamental aspects of textile models are protected  in the same way as those of industrial models.  
If, however, the model responds to technical or func tional considerations, it is protected in the same 
way as an invention.  21. Please explain how your legislation protects right holders of a design against importing of articles bearing embodied or copied design. 
 
 Article 108 of Decree-Law No. 290 establishes th e rights conferred by registration and the 
Industrial Design or Industrial M odel Registration Certificate. 
 
 Registration confers upon holders the right to prevent third parties not having the owner's 
consent from making, selling or importing articles be aring or embodying a design or model which is 
a copy, or substantially a copy, of the protected de sign or model, when such acts are undertaken for 
commercial purposes.  
 The right of an industrial design or model re gistration holder extends to any other design or 
model that does not give an informed  person a different general impression. 
 
 The rights conferred by registration do not exte nd (Article 109) to acts performed exclusively 
for the purposes of teaching or in a private environment and for non-commercial purposes. 
 
 The rights of the registration holder do not extend to acts performed by a third party in 
relation to the registered design or model, after th at design or model has been placed on the market in 
any territory by the holder or by another person with the consent of or with economic ties to 
that holder.  22. Please state whether or not your legislation provides for the right to issue a compulsory 
licence for industrial designs. 
  Compulsory licences are not granted for industrial designs or models. 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 8 
  
  23. Please indicate for what period of time your legislation grants protection for industrial 
designs.  
  Article 112 establishes that the registration of an industrial design is valid for ten years from 
the date when the application is filed.  Annual  payments are made to maintain the protection 
(Article 113).  The rights conferred may be exerci sed from the moment of registration (Article 117, 
Article 44).  
F. P
ATENTS  
24. Please describe how your legislation defin es the notions of:  novelty, inventiveness and 
industrial application. 
 
 Article 21.1.- An invention eligible for pate nt protection shall be understood to mean any 
technical solution, in any technological field, whic h is novel, inventive and industrially applicable. 
 
 Article 23.1.- An invention is new if, on the r ecognized priority date, it is not included in the 
prior art. 
 
 Article 23.2.- Prior art shall be understood to mean everything that is or has been made 
available to the public anywhere in the world, in  written or verbal form or through use, sale, 
marketing or display or by any other means, in cluding the traditional knowledge of indigenous or 
local communities.  
 Article 23.3.- For the purposes of determining n ovelty, the contents of a utility model patent 
or registration application pending be fore the Office and having a priori ty date earlier than the priority 
date of the patent or registration application unde r examination shall also be considered part of 
prior art, provided that the said contents have been or will be published.  
 Article 23.4.- The disclosure of an invention shall not imply the absence of novelty if it has 
taken place as an unlawful act against the applicant or owner.  
 Article 25.- An invention shall be considered industrially applicable when its subject-matter 
can be reproduced or used in any industry, industry  being understood in the broad sense of the term. 
 25. Please explain whether or not in your legislat ion, patent or otherwise, patent rights are 
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how 
these exclusions are applied in legal as well as practical terms. 
 
 Non-patentable objects of invention and objects not  considered to be inventions are listed in 
Articles 22 and 21 of the legislation, respectively. 
 
 Pursuant to Article 22, the following are not patentable: 
 
(a) Animals and animal breeds; (b) plants and plant varieties; 
(c) methods for the treatment of the human or animal body; 
(d) diagnostic, therapeutic and surgical methods  for the treatment of humans or animals; 
(e) solutions, the prevention within the country  of the commercial exploitation of which is 
necessary to protect human, animal or plant life or health or to avoid serious prejudice 
to the environment, provided that such exclusion is not made merely because the 
exploitation is prohibited by domestic legislation;  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 9 
  
  (f) solutions, the prevention within the country of the commercial exploitation of which is 
necessary to protect social interests, ordre public  and morality; 
(g) the cloning of human beings, organs and tissues, or parts and elements thereof; 
(h) processes for modifying the germinal genetic identity of human beings; 
(i) uses of human embryos for industrial or commercial purposes; 
(j) processes for modifying the genetic identity of animals which are likely to cause them 
suffering without any substantial medical bene fit to man or animal, and also animals 
resulting from such processes. 
 
 Pursuant to Article 21.3, the following are not considered to be inventions:  
(a) Plans, methods and rules for performing in tellectual, sporting, recreational, economic 
and commercial activities; 
(b) construction projects, diagrams and plans; 
(c) discoveries recognizing laws, phenomena or properties of the material universe; 
(d) material existing in nature, whether di scovered or isolated, including biological 
and genetic material, and parts, substan ces and replicas thereof, excluding the 
microorganisms defined in Article 21.4; 
(e) principles and scientific theories; (f) mathematical methods; 
(g) methods of presenting information; 
(h) layout-designs of integrated circuits; (i) computer programs, scientific, artistic and literary works and aesthetic creations; 
(j) essentially biological procedures; 
(k) the human body, at the various stages of its formation and development, the discovery 
of any of its elements or parts, and replicas, including the sequence or partial 
sequence of a gene and its genetic identity, despite having been obtained by means of a 
technical process; 
(l) patented products and pro cedures included in the prior art, merely because they have 
been put to a use different from that contemplated by the initial patent; 
(m) those contradicting the scientific pr inciples and laws governing scientifically 
established phenomena and properties; 
(n) any change in the form, dimensions, pr oportions or material of an object unless 
essentially modifying the properties thereof; 
(o) juxtapositions of known inventions and mi xtures of known products and variations in 
their use, shape, dimensions or materials,  unless they are combined or fused so that 
their characteristic qualities or functions are modified to obtain a new industrial result 
that cannot be derived from the separate a pplication of the juxtaposed inventions; 
(p) uses of products and procedures; (q) products and procedures based on use. 
 
26. Please explain whether your legislation provides for the exclusion of inventions from 
patentability based on ordre public or morality.  If so, please explain the relevant section of your 
legislation and explain its formulation.  Please al so explain if it has been applied in practice. 
  Article 22.- The following shall not be patentable: 
 
(f) solutions, the prevention within the country of the commercial exploitation of which is 
necessary to protect social interests, ordre public  and morality. 
  It has not been applied in practice. 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 10 
  
  27. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded 
from patentability in your legislation.  If  so, please explain the relevant section of your 
legislation and explain its formulation. 
 
 The following are excluded from patentability under Article 22: 
 
(d) diagnostic, therapeutic and surgical methods  for the treatment of humans or animals. 
 28. Please explain whether or not plants, an imals and essentially biological processes are 
excluded from patentability in your legislation.  If so, please explain the relevant section of your legislation and explain its formulation. 
 
 Pursuant to Article 21.3, the following are not considered to be inventions: 
 
(r) essentially biological processes. 
  Pursuant to Article 22, the following are not patentable: 
 
(c) animals and animal breeds; (d) plants and plant varieties. 
 
29. Please describe how micro-organisms , non-essentially biological processes, 
microbiological processes and plant varieties are prot ected in your legislation.  Please explain, in 
this respect, the relevant sections of your legislation.   Plant varieties are protected under the regime established by Decree-Law No. 291 
of 20 November 2011 on the protection of pl ant varieties, which entered into force 
on 2 February 2012.  The list of species to which this regime applies will enter into effect upon 
publication in the Official Journal ( Gaceta Oficial ). 
  Pursuant to Article 21.4 of Decree-Law No. 290, only micro-organisms transformed by means 
of direct human intervention in their genetic co mposition with an exogenous genetic material, which 
express a characteristic normally not attainable by the species under natural conditions, are patentable.  
Plants and animals or parts thereof are excluded. 
 
 The list of non-patentable objects of invention and objects not considered to be inventions 
does not include non-essentially biological processes or microbiological processes, which are 
patentable under the legislation if they  meet the established requirements. 
 
30. Please explain how your legislation prot ects patent right holders against the importing 
and against the offering for sale of a patented invention.   Articles 44 to 46 of Decree-Law No. 290 on inve ntions and industrial designs and models 
establish the scope and content of the rights conferre d by a patent and distinguish rights relating to 
patents on products from rights relating to patents on processes, in accordance with Article 28 of the 
TRIPS Agreement. 
  Article 46.- A patent shall confer on its owner the right to prevent third parties not having the 
owner's consent from carrying out the following acts: 
 
(a) Where the subject-matter of a patent is a produc t, the making, using, offering for sale or 
importing for these purposes that product;  and  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 11 
  
  (b) where the subject-matter of a patent is a process, the using of that process and the acts 
of using, offering for sale, selling or importing for these purposes the product obtained directly by that process. 
 
31. Please state if your legislation provides fo r patent product protect ion of pharmaceutical 
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference. 
 
 Yes, protection is granted to pharmaceutical  and agricultural chemical products.  Although 
the legislation does not state this expressly, Articles 21 and 22, which list, respectively, objects not 
considered to be inventions and non-patent able objects, do not exclude these products. 
 32. Please clarify if the patent protection of a process, as provided for in your legislation, 
covers the product obtained directly by that process. 
  Article 143.1 provides for the protection of a product where it is directly obtained by a 
patented process, provided that the product is new in accordance with Article 34(a) of the Agreement. 
 33. Please explain the additional conditions, if any, in your legislation other than the sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of 
justification for access to genetic material or prior inform consent to its use).  If such additional 
conditions exist, please point out the relevant le gislation and describe the additional conditions 
in detail. 
  Article 26 of Decree-Law No. 290 specifies the documents that are to be submitted in an 
application for an Invention Patent Cer tificate.  These documents must include: 
 
 (j) a copy of the prior and express authorization for access to biological material, issued by 
the competent authority in accordance with existing legislation, when the invention 
concerns such material, including genetic mate rial and its parts or derivatives, of which 
Cuba is the country of origin or which is present in domesticated or cultivated species in the country; 
 
 (k) a declaration stating that the biological ma terial relating to the invention has not been 
obtained in the territory of the Republic of Cuba, in which case the country of origin 
and the source of the biological material and associated traditional knowledge must be 
indicated and evidence of prior informed consent for access provided. 
 
 Articles 9 to 14 of Resolution No. 111/96 of 14 October 1996 of the Ministry of Science, 
Technology and the Environment govern the prior and express authorization for access to biological 
material, issued by the competent author ity in accordance with existing legislation.6 
 
                                                      
6 Article 9:   Any State body, agency or entity or natural or legal person, national or foreign, seeking to 
access the biological resources of the biodiversity of the co untry or to trade in these resources shall require the 
prior and express authorization of the Environmental Management and Inspection Centre or of the Provincial 
Delegations of this Ministry, as appropriate. 
Article 10:   The request for authorization referred to in the previous Article shall clearly state the 
biological resources for which access is being sought, the quantity and es timated location thereof, the time 
required to achieve this  objective, and the conditions under wh ich and the purpose for which access is 
being sought. 
The authorities referred to in Article 9 of this Resolution may also ask the applicant for any additional 
information that is necessary to ensure the proper evaluation of the requests submitted. IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 12 
  
  34. Please describe if your legislation provides for limited exceptions to the exclusive rights 
conferred by a patent.  If affirmative, pl ease make a reference to relevant legislation. 
  Yes, the legislation provides for exceptions to the rights.  See Articles 47 to 50 of 
Decree-Law No. 290. 
 
35. Please explain whether or not your legislatio n provides for compulsory licensing.  If so, 
please explain in detail the conditions under wh ich a compulsory licence may be granted.  
In particular, please explain how your national legislation considers individual merits in the 
authorization of such use. 
  Compulsory licensing is governed by the recen tly adopted legislation.  Articles 53 to 57 
establish the relevant regulations in accordance with the provisions of the TRIPS Agreement. 
 
 The Cuban Industrial Property Office, at the request of a third party and after hearing the 
opinion of the relevant body or agency of the Central State Administration, may, for reasons of public interest, without the authorization of the right holder, grant through a Resolution issued by the 
Director-General, a compulsory licence for the exploi tation of the invention in national territory and 
to prevent any abuse resulting from the exercising of th e exclusive right conferred, in particular in the 
following cases: 
 
(a) The non-exploitation or insufficient explo itation of the subject-matter of the patent, 
which has a negative impact on the market; 
(b) the setting of high or discriminatory prices wh en there are offers to supply the market at 
prices significantly lower than those offered by the patent owner for the same product; 
(c) where exploitation by the owner has been interrupted for more than one year; 
(d) where the preparation for the exploitation of the invention has not been serious or 
effective; 
(e) if the patent concerns vaccinations or  other pharmaceutical products, where these have 
been made available to the public by being put on sale or offered in insufficient amounts or where they have not been made available at all; 
(f) where a later patent cannot be exploited without infringing the rights of an earlier 
patent, provided that it has not been possible to reach agreement on a licence, subject to 
the following conditions: 
(i) the invention claimed in the later patent shall involve an important technical 
advance of considerable economic signi ficance in relation to the invention 
claimed in the earlier patent; 
(ii) the owner of the earlier patent shall be entitled to a cross-licence on reasonable 
terms to use the invention claimed in the later patent;  and 
(iii) the use authorized in respect of th e earlier patent shall be non-assignable, except 
with the assignment of the second patent. 
(g) for any act constituting the abusive exercise of the rights conferred and for any practice 
which, as a result of a judicial or admi nistrative process, has been determined 
anti-competitive;  or 
(h) where the patent owner refuses to negotiate a voluntary licence. 
 
 The Office may issue a compulsory licence when the proposed user has ma de efforts to obtain 
a licence from the right holder on reasonable commercia l terms and conditions a nd such efforts have 
not been successful within a reasonable period of tim e not exceeding 90 days from the date when the 
proposed user submitted the purported licence re quest, in writing, to the right holder. 
  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 13 
  
   The above regulation does not apply to the situ ations described in paragraphs (a) and (d), 
in which the proposed user must request the compulso ry licence within four years of the date of filing 
of the patent application or three years from the gr anting of the patent, whichever period expires last. 
 
 A request for a compulsory licence is rejected if the patent owner has not obtained 
authorization from the relevant national regulator y bodies for duly substantiated reasons beyond 
its control.  
 The Decree-Law also provides for compulsory  licensing in exceptional circumstances and 
in the event of public non-commercial use of the patented invention, in which case, pursuant to 
Article 54, it is not necessary to have trie d to obtain a licence from the right holder. 
 
 In exceptional circumstances, the National Defence Council shall decide that a compulsory 
licence is to be issued, identify the producing entity and order the corresponding entity to issue, on the 
basis of agreed grounds, terms and conditions and after hearing the opini on of the relevant institution, 
the decision granting the compulsory licence.  
 It is also provided that where the public non-commercial use of the patented invention does 
not form part of exceptional circumstances, it shall fall to the Council of Ministers to exercise the powers described for exceptional circumstances and orde r the Office to issue the decision granting the 
compulsory licence. 
  In both cases, the right holder will be no tified as soon as is reasonably practicable. 
 
 In the event of serious public health problems or other circumstances of extreme urgency, 
whether in the Republic of Cuba or in other count ries, and when there is no or insufficient production 
capacity in the pharmaceutical sector, compulsory licences may be granted in accordance with the 
international commitments undertaken by the Republic  of Cuba and existing supporting legislation in 
order to: 
 
(i) Import pharmaceutical products when the competent authority determines that the 
manufacturing capacity in national territory is insufficient or non-existent;  and 
 (ii) export pharmaceutical products in order to satisfy demand in countries with no or 
insufficient capacity in this sector. 
  It is also provided that the scope and durati on of the uses authorized by a compulsory licence 
shall be limited to the purpose for which they were intended, and in the case of semi-conductor 
technology shall only be for public  non-commercial use or to reme dy a practice determined after 
administrative or judicial process to be anti-competitive (Article 55.1). 
 
 Compulsory licences shall be granted predominantly for the supply of the domestic 
market (Article 55.2). 
  Compulsory licences shall be granted on a non-exclusive basis and are non-assignable, except 
with that part of the entity or goodwill related to the exploitation of the invention (Article 55.3). 
  Article 56.1 provides that in the case of com pulsory licensing, the patent owner shall be 
entitled to adequate remuneration in the circumstan ces of each case, taking into account the economic 
value of the authorization.  Decisions relating to su ch remuneration may be subject to judicial review 
by the patent owner before the rele vant Cuban court, although this sha ll not interrupt the effects of the 
licence granted (Article 56). IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 14 
  
  36. Please explain how your legislation explic itly ensures that a proposed user has made 
efforts to obtain authorization from the ri ght holder on reasonable commercial terms and 
conditions and that such efforts have not been successful within a reasonable period of time.  
In this context, how do you define "reasonable period of time".  Please also explain how your 
legislation ensures that the use of a compulsory licence shall be authorized predominantly for 
the supply to the domestic market of the Member authorizing such use.  
 Article 53.2:  The Office shall grant a com pulsory licence when the proposed user has made 
efforts to obtain a licence from the right holde r on reasonable commercia l terms and conditions 
and such efforts have not been successful within  a reasonable period of time not exceeding 90 days 
from the date when the proposed user submitted the purported licence request, in writing, to the 
right holder. 
 
37. Please state if your legislation grants additional protection for innovations after 
the 20 years of patent protection has lapsed.  
 No, it does not grant additional protection. 
 
38. Please explain how your legislation provides for the reversal of the burden of proof in 
relation to process patents. 
 
 Article 143.1 provides that if the subject-matter of the patent is a process for obtaining a product, any identical product produced without the c onsent of the process patent owner shall, in the 
absence of proof to the contrary, be presumed to ha ve been obtained by the patented process, provided 
that the product obtained is new.  It therefore falls to the defendant to prove that the process used to 
obtain the product concerned is di fferent from the patented process. 
  Pursuant to Article 143.2, the court is require d to take the necessary measures to ensure the 
protection of the confidential inform ation provided during the proceedings. 
 G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS  
39. Please describe how your legislation protects topographies. 
 
 [No reply received.] 
 
40. Please explain what protection your national legislation grants to right holders against 
the unlawful importation, sale or distribut ion for commercial purposes of topographies 
including integrated circuits or other articles  in which a topography is incorporated in 
accordance with Article 36 of the TRIPS Agreement. 
  Article 15.1 of Decree-Law No. 292 of 20 No vember 2011 on layout-designs of integrated 
circuits, which entered into force on 2 April 2012, establishes the rights conferred by the registration 
of layout-designs of integrated circuits. 
  Pursuant to this Article, registration confers on its holder the right to prevent third parties 
from doing the following without its authorization: 
 
(a) Reproducing the full registered layout-design or any part thereof, whether through 
incorporation into an integrated circuit or otherwise, except the act of reproducing any 
part that does not comply with the requirement of originality; 
  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 15 
  
  (b) importing, selling, or otherwise distri buting for commercial purposes a registered 
layout-design, an integrated circuit in whic h a registered layout-design is incorporated, 
or a product incorporating such an integrat ed circuit only in so far as it contains an 
unlawfully reproduced layout-design. 
 
 Article 15.2 provides that the protection c onferred by registration shall cover only the 
layout-design itself and shall not extend to any idea,  process, system, technique or coded information 
incorporated into the layout-design. 
 
41. Please explain how your legislation provi des for the derogation from Article 36 as 
specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable 
grounds to know when acquiring an integrated circuit or an article incorporating such an 
integrated circuit that it contains an unlawful topography. 
  Pursuant to Article 18.2, after the time that  such a person has received substantiated notice 
that the layout-design was unlawfully reproduced, that person may continue performing these acts 
with respect to the stock on hand or ordered before that time, but may be required to pay to the holder 
a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in 
respect of such a layout-design.  42. Please state the term of protection granted by your legislation to topographies. 
 
 [No reply received.] 
 
H. P
ROTECTION OF UNDISCLOSED INFORMATION  
43. Please explain whether or not your legislation grants a defined period of time for the 
protection of undisclosed information.  If so, please give the time span. 
  A draft Decree-law on unfair industrial and trad e practices is currently being examined by the 
competent authorities.  It includes provisions on undisclosed information held by natural and legal persons and the definition thereof.  It also incl udes provisions on undisclosed information concerning 
pharmaceutical and agricultural chemical prod ucts that is provided to regulatory bodies. 
 
44. Please explain how your legislation defines "undisclosed information". 
 
 [No reply received.]  45. Please explain how your legislation defines data submitted to governments or governmental agencies. 
  [No reply received.] 
 
I. E
NFORCEMENT  
46. Please describe how your legislation provides for effective action against infringement of 
intellectual property rights. 
 
 Title X (Actions and Measures for Infringement of Rights), Chapter I (Judicial Proceedings), Article 126.1, states that: 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 16 
  
   "In the course of infringement proceedings, one or more of the following measures may be 
ordered by the court at the request of the claimant:  
(a) Cessation of the infringing acts; 
 
(b) compensation for material injury; 
 (c) damages; 
 
(d) seizure of the goods relating to the infringement, including containers, packaging, 
labels, printed or advertising material s and other materials resulting from the 
infringement as well as the materials and means that served principally to commit the 
infringement; 
 
(e) prohibition of the import or export of th e goods, materials or means referred to in 
indent (d); 
 
(f) transfer of ownership of the products, materi als or means referred to in indent (d), 
in which case value of the goods shall be ch arged against the amount of the damages; 
 
(g) measures necessary to prevent the con tinuation or repetition of the infringement, 
including the destruction of the goods, materi als or means referred to in indent (d); 
 
(h) moral damages; 
 
(i) publication of the judgment and notification thereof to the interested parties at the 
expense of the defendant." 
 
 Provisional measures may also be ordered, a nd implemented by the competent authorities.  
These measures are set forth in Article 131 of Decree-Law 203, and consist of: 
 
(a) Immediate cessation of the acts constituting the infringement; 
 (b) seizure or detention of the goods, packagi ng labels and other materials displaying the 
infringing sign and the means that served principally to commit the infringement; 
 (c) suspension of imports or exports of the goods, materials or means referred to in 
indent (b). 
  Persons with standing, in this case the holder of the right conferred under Decree-Law 203, as 
well as the licensee, subject to the conditions ag reed in the licence, may file a claim, under 
Article 125.1, with the competent People's Provinc ial Court against anyone who infringes that right, 
in accordance with the rules on juri sdiction and the provisions govern ing ordinary proceedings laid 
down in the Law on Civil, Administrative and Labour Procedure (Law No. 7 of 19 August 1977).  
Actions may also be brought against a person who pe rforms acts that clearly point to the preparation 
of an infringement. 
  "125.2  In the event of joint ownership of a right, any of the joint owners may initiate the 
actions without the consent of the others  being necessary, unless otherwise agreed." 
  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 17 
  
   The Decree-Law itself, in Article 87, states th at the owner of an exclusive licence may also 
initiate actions in defence of a tr ademark in the event that the owne r of the trademark has failed, upon 
request, to bring such action himself within the time-limit laid down within Article 128. 
 
 Action may also be initiated by an associa tion, federation, trade union or other entity 
representing the interested parties,  provided it is so authorized. 
  The public prosecutor may institute proceedings where the interests of society or the State 
are affected. 
  Actions for an infringement of a right conf erred by the above-mentioned Decree-Law 203 is 
barred after five years following the last infringement, pursuant to Article 128. 
 
47. Please explain whether or not your legislat ion provides for a mechanism to appeal to 
judicial bodies of final administrative decisions.  
 
 Article 124 in Title IX (Actions against Decisions of the Office) of Decree-Law 203 
states that: 
  "Administrative proceedings may be brought against the decisions of the Director-General of 
the Office before the Civil and Administrative Di vision of the People's Provincial Court of the 
City of Havana within a period of 30 days from the day following notification." 
 
 This applies to decisions issued in connection with the settlement of appeals filed against the 
final examination report issued by the Head of th e Department of Trademar ks and Other Distinctive 
Signs totally or partially refusi ng a registration, and in proceedings for nullity, cancellation or 
revocation of registrations heard at first instan ce by the administrative authority in the Cuban 
Industrial Property Office and that are not open to judicial appeal. 
 
 Administrative procedures are regulated by B ook Two (Administrative Procedure), Titles I-V 
of the Law on Civil, Administrative and Labour Procedure. 
 
48. Please describe how your legislation author izes judges to order production of evidence 
by the opposing party.  Please give precise info rmation on what measures are taken to ensure 
the protection of confidential information.  
 
 Article 42 of the Law on Civil, Administrative and Labour Procedure (LPCAL) authorizes the 
court to summon the parties to appear at any stage of the proceedings for interrogation on the facts of 
the case or to order the inspection of the objects in  dispute and the books or documents relating to the 
case, provided this is indispensable to the examin ation of the facts.  Article 126, indent 4 of 
Decree-Law 203 authorizes the courts to order th e defendant, at any time during the proceedings, 
to supply information concerning pers ons that participated in the production or marketing.  Subject to 
the above, it is important to point out  that in spite of this, Article 244 of the LPCAL leaves it up to the 
parties to prove, by such means as the Law author izes, the facts asserted by them and those adduced 
in refutation of the claims of the opposing party. 
 
As regards the protection of confidential inform ation, its inclusion is planned in the draft 
Decree-Law on Protection Against Unfair Competition, which will not be reviewed at this stage, and 
where the legitimate interests of defendants in respect of the protection of their industrial and 
commercial secrets will be taken into account.  IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 18 
  
  49. Please quote provisions of your legislation that authorize judges to order a defendant to 
desist from an infringement.  
  Article 126.1(a) of Decree-Law 203 authorizes the court to order the cessation of acts that 
constitute an infringement at th e request of the complainant. 
 
50. Please quote what provision of your legislation authorize judges to order the payment to 
the right holder of adequate damages to  compensate the injury he suffered.  
 
 Article 126(b) of Decree-Law 203 authorizes judges to order, at the request of the 
complainant, the payment of damages for material  injury.  This basically complements Articles 82 
to 88 of the Civil Code, Law 59 of 16 July 1987, wh ich regulates matters relating to responsibility for 
unlawful acts and essentially stipulates that:  
- A person that unlawfully causes injury or prejudice to another shall be liable for 
damages (Article 82 of the Civil Code). 
 
- Civil liability damages shall include, inter alia , compensation for material injury 
(Article 83(b) of the Civil Code). 
 
- Compensation for  material injury in cludes payment of the value of the good 
(Article 85 of the Civil Code). 
 
- Article 87 of the said Code lays down the rules governing compensation for 
material damage. 
 
 Article 127 of Decree-Law 203 establishes the way in which damages are calculated in 
accordance with the following criteria: 
 
(a) Loss of profits suffered by the right holder as a result of the infringement;  
(b) the amount of the profits earned by the infringer as a result of the infringing acts; 
 (c) the price that the infringer would have pa id under a contractual licence, taking into 
account the market value of the infringed right and contractual licences that have 
already been granted. 
 51. Please quote what provisions of your legislation authorize judges to order the payment of the right holder's expenses by the infringer. 
  Articles 198 to 212 of the LPCAL regulate the pr ocedure for the payment of legal expenses.  
Article 201 of the LPCAL states that in handing down their final judgement in a case, the courts shall 
make a special ruling with respect to legal expenses. 
 
52. Please explain if and how judges have the authority to order that infringing goods are 
placed outside channels of commerce or destroyed.  
 
 Article 126.1, indents (d), (e) and (g) of  Decree-Law 203 on Trademarks and Other 
Distinctive Signs gives the courts the authority to take such measures as may be necessary to place the 
infringing goods outside channels of commerce or to destroy them, such as:   IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 19 
  
  (d) Seizure of the goods relating to the in fringement, including containers, packaging, 
labels, printed or advertising material  and other materials resulting from the 
infringement as well as the materials and means that served principally to commit 
the infringement; 
 
(e) prohibition of the import or export of the goods, materials or means referred to 
in indent (d); 
 
(g) measures necessary to prevent the con tinuation or repetition of the infringement, 
including destruction of the goods, materials or means referred to in indent (d). 
 53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in the event of abuse by the plaintiff.  
  In civil cases, this would correspond to the cl aim for damages under the already mentioned 
Articles 82 to 88 of the Civil Code.  54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.  
 
 Under Article 130.1 of Decree-Law 203 on Trademar ks and Distinctive Signs, "[t]he claimant 
may apply to the court handling the case for the in troduction of immediate provisional measures with 
a view to preventing the continuation of the in fringement, avoiding its consequences, obtaining or 
preserving evidence or ensuring th e effectiveness of the action. 
 
 Such provisional measures may be requested  before the initiation of proceedings, in 
conjunction therewith, or after their initiation.  If  the provisional measure is requested before the 
initiation of proceedings, the court, upon ordering th e measure, shall require the requesting party to 
provide a sufficient security to meet the outcome of the proceedings." 
 
 Article 131 of Decree-Law 203 states that the court may order the following provisional measures: 
 
(a) Immediate cessation of the acts constituting the infringement;  
(b) seizure or detention of the goods, packaging,  labels or other materials displaying the 
infringing sign and the means that serve principally to commit the infringement; 
 
(c) suspension of imports or exports of the goods, materials or means referred to in 
indent (b). 
 55. Please identify the competent authorities in your jurisdiction who receive requests from right holders for an application to su spend the release of counterfeit goods by the 
customs authorities.  
 Title X, Chapter III (Special Border Measures)  of Decree-Law 203 stipulates that the holder 
of a right protected thereunder who has reasonabl e grounds for supposing that goods infringing that 
right are about to be imported or exported may request the competent People's Provincial Court to order the customs authorities to detain the imported or exported goods at the time of their clearance.  
The conditions and guarantees applicable to provisional measures apply to requests of this kind and to 
the orders given.  IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 20 
  
   When ordering a border measure, the court mu st require the person requesting such measure 
to provide sufficient security to m eet the outcome of the proceedings. 
 
 When the applicable conditions and guarantees have been fulfilled, the court shall order or 
refuse the detention and notify the claimant accordingly. 
 
 Anyone requesting detention shall, subject to appropriate identificati on, provide the court 
with the necessary information and a description of th e goods that is sufficiently detailed and accurate 
for them to be easily identified and recognized by Customs.  Upon ordering the detention, the court 
shall require the requesting party to provide a secu rity to meet the outcome of the proceedings. 
 
 Once the detention has been effected, Customs shall immediately provide notification thereof 
to the importer or exporter of the goods, the part y requesting the measure and the corresponding court. 
 
 If Customs, after ten working days have elapsed  from the date of notification of the detention 
to the requesting party, has not been informed th at judicial proceedings on the merits have been 
instituted or that the court has ordered provisional measures to prolong the detention, the detention 
shall be lifted and the detained goods shall be release d.  In duly justified cases, that time-limit may be 
extended by ten working days.  
 Where the detention was ordered as a provisi onal measure, the time-limit provided for such 
measures shall apply.  
 Once the judicial proceedings on the merits ha ve been initiated, the party affected by the 
detention may appeal to the court for a review of th e detention ordered, and a reply shall be issued for 
that purpose.  The measure in question may be modified, revoked or confirmed. 
  A regulation to the same effect is provi ded for in Chapter III of Resolution No. 25 
of 24 September 2001 of the Director of the Cust oms General of the Republic (Regulations on the 
Detention of Goods for Infringement of Intellect ual Property Rights) in connection with other 
intellectual property procedures.  
 
56. Please indicate whether or not procedures  are available to suspend the exporting of 
counterfeit goods. 
 
 The process described in the previous questi on also applies to the exporting of goods.  
Article 136.5 of Decree-Law 203 stipulates that "[ o]nce the detention has been effected, Customs 
shall immediately provide notification thereof to  the importer or exporter of the goods, the party 
requesting the measure and the corresponding court."  
 Moreover, Article 137 stipulates that "[i]f Customs, after ten working days have elapsed from 
the date of notification of the detention to the re questing party, has not been informed of judicial 
proceedings on the merits have been instituted or that the court has ordered provisional measures to 
prolong the detention, the detention shall be lifted and the detained goods shall be released.  In duly 
justified cases, that time-limit may be extended by ten working days. 
 
 Where the detention was ordered as a provisi onal measure, the time-limit provided for such 
measures shall apply.   
 
 Once the judicial proceedings on the merits ha ve been initiated, the party affected by the 
detention may appeal to the court for a review of th e detention ordered, and a reply shall be issued for 
that purpose.  The measure in question may be modified, revoked or confirmed.  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 21 
  
   A regulation to the same effect is provi ded for in Chapter III of Resolution No. 25 
of 24 September 2001 of the Director of the Cust oms General of the Republic (Regulations on the 
Detention of Goods for Infringement of Intellect ual Property Rights) in connection with other 
intellectual property procedures." 
 57. Please indicate whether or not your legislation provides for a de minimis  
imports exception.  
  Article 141 of Decree-Law No. 203 on Tradem arks and Other Distinctive Signs provides 
specifically in relation to these procedures that sm all quantities of goods of a non-commercial nature 
carried by passengers or sent in small consignm ents shall be excluded from the special provisions 
relating to border measures. 
  Article 24 of Resolution No. 25 of 24 Septembe r 2001 of the Director of the Customs General 
of the Republic (Regulations on the Detentio n of Goods for Infringement of Intellectual 
Property Rights) provides that "[t]he provisions of  this Regulation shall not be applied where the 
goods allegedly infringing intellectual property rights:   
 
(a) Are goods in international transit;  
(b) are consignments of a non-commercial nature; 
 (c) form part of the personal effects of travellers." 
 
58. Please explain how your legislation implements Article 61 of the TRIPS Agreement.  
 
 Title V (Offences Against the National Economy), Chapter VIII (Deception or Prejudice to Consumers), Article 227.2 of the Criminal Code currently in force Law 62 of 27 December 1987 
amended by Decree-Law 140 of 13 August 1993, Decr ee-Law 150 of 6 June 1994, Decree-Law 175 
of 17 June 1997 and Law 87 of 26 Fe bruary 1999, stipulates that "the  same penalty custodial sentence 
of one to three years or a fine of 300 to 1,000 " cuoats " (units of account) shall be imposed on anyone 
who offers for sale, arranges to export or exports an industrial or agricultural product displaying an 
indication of quality or a trademark which do es not correspond to the product in question." 
 
 Title V (Offences Against the National Ec onomy), Chapter XII (Contraband), Article 234 
stipulates, that:  
 "Anyone that is regularly engaged in the purchase, concealment or exchange of objects 
or goods which by their nature or owing to th e circumstances of the transaction make it clear 
or make it reasonable to assume that they were  introduced into the country in violation of 
the law, or that is involved in any way in the disposal or sale of such objects or goods, shall 
be liable to a custodial sentence ranging from six months to two years or a fine of 200 
to 500 ' cuoats'  or both." 
  At the same time, Title VII (Offences agains t Public Confidence), Section Ten (Manufacture, 
Introduction or Possession of Implements Intende d for Counterfeiting) of Law 62 stipulates in 
Article 259.1 that:  
 "Anyone who manufacturers or introduces into the country stamps, presses, marks or other 
implements or tools intended for counterfeiting as defined in the preceding sections shall be 
liable for a custodial sentence of two to five years." 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
Page 22 
  
   Similarly, Chapter III (Transmission, Illega l Possession of Cultural Assets and Counterfeiting 
of Works of Art), Article 246, of Law No. 87 of 26 February 1999 amending the Criminal Code, 
provides as follows: 
 
 "A custodial sentence of one to three years or a fine of 300 to 1,000 ' cuoats'  or both shall be 
imposed on anyone who, to the detriment of its creator or of the cultura l heritage, counterfeits 
or traffics a work of art", and goes on to state that  "if serious injury is caused as a result of the 
offences provided for in the preceding indent, the penalty shall be a custodial sentence of two 
to five years." 
  However, it should be emphasized that a draft Decree-Law on Industrial Property Offences is 
currently under consideration, as is a draft Decr ee-Law on Copyright, and that both of these include 
provisions complimentary to Cuba's obligations in this field.  IV. RESPONSE TO THE QUESTION POSED BY JAPAN7 
A. C
OPYRIGHT AND RELATED RIGHTS  
 Please explain exceptions or exemptio ns of the National Treatment and 
Most-Favoured-Nation Treatment under the Copyrigh t and Neighbouring Rights Law, if any, 
as permitted in Articles 3 and 4 of the TRIPS Agreement.  
  No reply received.  As yet, no legislation consistent with the TRIPS Agreement has been 
adopted in this area.  
V. RESPONSES TO THE QUESTIONS POSED BY SWITZERLAND
8 
A. PATENTS  
1. Does your legislation grant patent protectio n for inventions relating to products and 
processes in all fields of technology?  Are there an y exceptions?  If so, please explain what these 
exceptions are and how they comply wi th Article 27 of the TRIPS Agreement. 
 
 Decree-Law No. 290 of 20 November 2011 on i nventions and industria l designs and models, 
which entered into force on 2 April 2012, grants  protection to inventions based on products and 
processes in all fields of technology. 
  Articles 21 and 22 of the legislation list, respectively, the types of subject-matter not 
considered to be an invention and non-patentable subject-matter. 
 
2. Please explain how your law implements Ar ticle 28.1(b) of the TRIPS Agreement and 
indicate in particular how products obtained  directly by a process patent are protected.  
Please cite the relevant provisions of the law.  
  Articles 44 to 46 establish the scope and conten t of the rights conferred by the patent and 
distinguish rights relating to patents on products  from rights relating to patents on processes, 
in accordance with Article 28 of the TRIPS Agreement. 
 
                                                      
7 IP/C/W/322, dated 21 November 2001. 
8 IP/C/W/315, dated 5 November 2001.  IP/Q/CUB/1, IP/Q2/CUB/1,  
 IP/Q3/CUB/1, IP/Q4/CUB/1 
 Page 23 
  
   Article 46.- A patent shall confer on its owner the right to prevent third parties not having the 
owner's consent from carrying out the following acts:  
(a) Where the subject-matter of a patent is a pr oduct, the making, using, offering for sale or 
importing for these purposes that product;  and 
 
(b) where the subject-matter of a patent is a process, the using of that process and the acts 
of using, offering for sale, selling or importing for these purposes the product obtained 
directly by that process. 
  Article 143.1 provides for the protection of a product where it is directly obtained by 
a patented process, provided that the product is  new in accordance with Article 34.1(a) of 
the Agreement.  3. Does your legislation, in accordance with Ar ticle 27.1 in combination with Article 31 of 
the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude 
compulsory licensing, if a product is being imported)? 
 
 Importation is a form of working a patent, but does not preclude the granting of compulsory licences in certain circumstances consider ed in the legislation, such as: 
 
(a) The non-exploitation or insufficient explo itation of the subject-matter of the patent, 
which has a negative impact on the market; 
(b) the setting of high or discriminatory prices wh en there are offers to supply the market at 
prices significantly lower than those offered by the patent owner for the same product; 
(c) where exploitation by the owner has been interrupted for more than one year; 
(e) if the patent concerns vaccinations or  other pharmaceutical products, where these have 
been made available to the public by being put on sale or offered in insufficient 
amounts or where they have not been made available at all; 
(g) for any act constituting the abusive exercise of the rights conferred and for any practice 
which, as a result of a judicial or admi nistrative process, has been determined 
anti-competitive. 
 
4. Does your legislation make the granting of a compulsory license subject to all the 
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant 
provisions of law. 
  Articles 53 to 57 establish regulations in  accordance with the TRIPS Agreement. 
 
5. Please indicate the term of protection gr anted to patents according to your law. 
 
 Article 42.  Patents shall be valid for a period of 20 years from the date of filing of 
the application. 
 
6. Does your legislation provide for the principle of the reversal of burden of proof in a 
process patent litigation?  Please cite the relevant provisions of law.  
 Yes, this principle is provided for in Article 143.1 and 143.2. 
 IP/Q/CUB/1, IP/Q2/CUB/1,  
IP/Q3/CUB/1, IP/Q4/CUB/1 
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  B. P
ROTECTION OF UNDISCLOSED INFORMATION  
7. Please explain in detail if your legislatio n ensures that undisclosed test or other data 
submitted by an applicant to the responsible State agency in the procedure for market 
authorization of a pharmaceutical or of an agr icultural chemical product is protected against 
disclosure and against unfair commercial use by a competitor, for example by prohibiting a 
second applicant from relying on, or from referring to the original data of the first applicant, 
when applying subsequently for market authorization for a similar product.  Does your legislation provide for exceptions to this?  If yes, under what conditions would such 
exceptions apply?  Does your legislation set a specific term of protection for undisclosed test or 
other data of the first applicant? 
  A draft Decree-law on unfair industrial and trad e practices is currently being examined by the 
competent authorities.  It includes provisions on undisclosed information held by natural and legal persons and the definition thereof.  It also includes provisions on undisclosed information 
concerning pharmaceutical and agricultural chemical  products that is provided to regulatory bodies. 
 C. E
NFORCEMENT  
8. Please indicate remedies provided by your  legislation which constitute effective 
deterrents to infringements of intellectual property rights.  
9. Please describe any new initiatives that  are planned to improve enforcement of 
intellectual property rights in your country, pa rticularly initiatives related to criminal 
enforcement. 
 
 [No replies received to questions 8 and 9.] 
 
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