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Intellectual Property

South Africa

Trade Marks Act No. 194 of 1993

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A trademark is defined by the Act as a mark used or proposed in relation to goods or services for the purpose of distinguishing those goods or services from the same kind of goods or services connected in the course of trade with another. The Trade Marks Act 1993 No. 194 of 1993 and the Merchandise Marks Act 17 of 1941, as well as the Copyright Act 498 of 1978 apply to the registration of trademarks.

Important Notes from the Trade Marks Act

Infringement: Where a trade mark registered in terms of this Act has been infringed, the court may grant the proprietor the following relief, namely (a) an interdict; (b) an order for removal of the infringing mark from all material and, where the infringing mark is inseparable or incapable of being removed from the material, an order that all such material be delivered up to the proprietor; (c) damages, including those arising from acts performed after advertisement of the acceptance of an application for registration which, if performed after registration, would amount to infringement of the rights acquired by registration; (d) in lieu of damages, a reasonable royalty which would have been payable by a licensee for the use of the trade mark concerned, including any use which took place after advertisement of the acceptance of an application for registration and which, if taking place after registration, would amount to infringement of the rights acquired by registration. (4) For the purposes of determining the amount of any damages or reasonable royalty to be awarded under this section, the court may direct an enquiry to be held and may prescribe such procedures for conducting such enquiry as it may deem fit. (5) Before a person institutes proceedings in terms of this section he shall give notice in writing of his intention to do so to every user concerned whose name is recorded in the register, and any such registered user shall be entitled to intervene in such proceedings and to recover any damages he may have suffered as a result of the infringement.

Duration: The registration of a trade mark shall be for a period of 10 years, but may be renewed from time to time in accordance with the provisions of this section. (2) The registrar shall, on application made by the registered proprietor of a registered trade mark in the prescribed manner and within the prescribed period, renew the registration of the trade mark for a period of 10 years from the date of expiration of the original registration or of the last renewal of registration, as the case may be, which date is in this section referred to as “the expiration of the last registration”: Provided that, in the case of an application made in terms of section 63, the date of the original registration shall, for the purposes of this subsection, be deemed to be the date of lodgement of the application at the trade marks office.

Use of trade mark for export trade

The application of a trade mark in the Republic to goods to be exported from the Republic and any other act performed in the Republic in relation to goods to be so exported which, if performed in relation to goods to be sold or otherwise traded in within the Republic, would constitute use of a trade mark therein, shall be deemed to constitute use of the trade mark in relation to those goods for any purpose for which such use is material under this Act or at common law.

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