eSwatini
Patents, Designs and Trade Marks Act, 1936
Act 72 of 1936
- Commenced on 20 November 1936
- [This is the version of this document at 1 December 1998.]
Part I – Introductory
1. Short title
This Act may be cited as the Patents, Designs and Trade Marks Act, 1936.2. Interpretation
In this Act unless the context otherwise requires:“Court” means the High Court;“Minister” means the Deputy Prime Minister;“registrar” means the public officer designated by the Deputy Prime Minister to be the registrar of patents, designs and trade marks or the assistant registrar of patents, designs and trade marks.Part II – United Kingdom patents
3. Proprietor of United Kingdom patent protected in Swaziland
Subject to this Part, the registered proprietor of a patent granted in the United Kingdom under the law there relating to patents shall enjoy in Swaziland, as from the commencement of this Act, the like privileges and rights as though the patent granted in the United Kingdom had been granted with an extension to Swaziland.4. Damages for infringement of patent
The registered proprietor of such patent shall not be entitled to recover any damages in respect of any infringement of the patent from a defendant who proves that at the date of the infringement he was not aware nor had any reasonable means of making himself aware of the existence of the patent, and the marking of an article with the word “patent” or “patented” or any word or words expressing or implying that a patent has been obtained for the article, stamped, engraved, impressed on or otherwise applied to the article, shall not be deemed to constitute notice of the existence of the patent unless such word or words are accompanied by the number of the patent:Provided that nothing in this section shall affect any proceedings for an interdict.5. Declaration that no exclusive privilege acquired
Part III – South African patents
6. Register of South African patents
The registrar shall cause a register of South African patents to be kept in which shall be entered—7. Right to registration of South African patents
8. Effect of registration
Any person registered under section 6 shall so long as the patent registration in respect of which he is registered remains in force in South Africa and so long as he is the proprietor of the patent, have and enjoy in Swaziland the same rights and privileges and be subject to the same duties, obligations and conditions as have been conferred or imposed upon him by the said patent registration within South Africa.9. Removal from register
The name of any person registered under this Part in the register of South African patents as proprietor of a patent may be removed from the register concerned by the registrar—10. Notice of assignment or other dealing with patent
Notice shall be given to the registrar of any assignment or transmission of a patent in respect of which any person is registered as proprietor under this Part, and of any amendment, prolongation, or revocation of such patent, or of any licence granted thereunder, and the registrar on being satisfied that such assignment or transmission, or such amendment, prolongation or revocation, or such licence, has been duly registered in the patents register of South Africa, and on payment of the prescribed fee, shall cause an entry to be made accordingly in the register of South African patents, kept under this Part, and in the case of assignment or transmission shall issue to the assignee or transmittee a certificate of registration as proprietor.11. Grounds of defence to action
In any action which may be brought for infringement of the rights granted in respect of a patent under this Part, any ground upon which the name of the person by whom or in whose right the action is brought could be removed from the register concerned may be applied by way of defence.12. Fees (First Schedule)
The fees set forth in the First Schedule shall be due and payable for the several acts therein specified, and such fees shall be collected by means of revenue stamps to be affixed to the document in respect of which such act may be done.13. Notification of changes
14. Saving
Part IV – United Kingdom designs
15. Privileges and rights of United Kingdom proprietors
Subject to this Part, the registered proprietor of a design registered in the United Kingdom under the law there relating to designs shall enjoy in Swaziland the like privileges and rights as though the certificate of registration in the United Kingdom was issued with an extension to Swaziland.16. Damages where registration not known
The registered proprietor of a design shall not be entitled to recover any damages in respect of any infringement of copyright in a design from any defendant who proves that at the date of the infringement he was not aware nor had any reasonable means of making himself aware of the existence of the registration of the design:Provided that nothing in this section shall affect any proceedings for an interdict.17. Jurisdiction
Part V – South African designs
18. Register of South African designs
The registrar shall cause a register of South African designs to be kept in which shall be entered—19. Right to registration of South African designs
20. Effect of registration
Any person registered under section 18 shall, so long as the design registration in respect of which he is registered remains in force in South Africa and so long as he is the proprietor of the registered design, have and enjoy in Swaziland the same rights and privileges and be subject to the same duties, obligations and conditions as have been conferred or imposed upon him by the said design registration within South Africa.21. Removal from register
The name of any person registered under this Part in the register of South African designs as proprietor of a registered design, may be removed from the register concerned by the registrar—22. Notice of assignment or other dealing with registered design
Notice shall be given to the registrar of any assignment or transmission of a design registration in respect of which any person is registered as proprietor under this Part, or of any rectification, extension or expungement of such design registration, and of any licence granted thereunder, and the registrar on being satisfied that such assignment or transmission, or such rectification, extension or expungement, or such licence, has been duly registered in the designs register of South Africa, and on payment of the prescribed fee, shall cause an entry to be made accordingly in the register of South African designs kept under this Part, and in the case of assignment or transmission shall issue to the assignee or transmittee a certificate of registration as proprietor.23. Grounds of defence to action
In any action which may be brought for infringement of the rights granted in respect of a design under this Part, any ground upon which the name of the person by whom or in whose right the action is brought could be removed from the register concerned may be applied by way of defence.24. Fees (First Schedule)
The fees set forth in the First Schedule shall be due and payable for the several acts therein specified and such fees shall be collected by means of revenue stamps to be affixed to the document in respect of which such act may be done.25. Notification of changes
Part VI – United Kingdom trade marks
26. Application for registration
A person who—27. Documents to accompany application
An application for registration of a trade mark under this Part shall be made to the registrar and shall be accompanied by eight certified representations of the trade mark and a certificate of the Controller-General of the United Kingdom Patent Office (under his title of Registrar of Trade Marks) giving full particulars of the registration of the trade mark in the United Kingdom.28. Certificate of registration
Upon such application being lodged, together with the documents mentioned in section 27, the registrar shall enter the prescribed particulars in the register, and shall issue a certificate of registration to the applicant, who shall then be the registered proprietor in Swaziland of the trade mark in respect of the goods entered in the register kept under section 35.29. Privileges and rights of registered proprietor
Subject to this Act a registered proprietor shall have in Swaziland such privileges and rights in the use of the trade mark in respect of goods entered in the register as mutatis mutandis would be conferred on him by the law for the time being in force in the United Kingdom.30. Period for which privileges and rights granted
The privileges and rights conferred by section 29 shall date from the date of registration in the United Kingdom and shall continue in force, subject to section 37, for so long as the registration in the United Kingdom remains in force in respect of the goods for which the trade mark is registered in Swaziland:Provided that no action for infringement of the trade mark shall be entertained in respect of the use of the trade mark prior to the date of issue of the certificate of registration in Swaziland.31. Right of action for “passing off” preserved
Nothing in this Act shall affect any right of action against any person for passing off goods as those of another person or any remedy in respect thereof.32. Powers of Court on application for cancellation
The Court may upon the application of any person who alleges that his interests have been prejudicially affected by the issue of a certificate of registration declare on any of the grounds mutatis mutandis on which the United Kingdom registration might be cancelled under the law for the time being in force in the United Kingdom that the exclusive privileges and rights have not been acquired.33. Registration of assignment of privileges and rights
Subject to this Act, if a person becomes entitled by assignment or other mode of transfer to the privileges and rights conferred on a registered proprietor by this Act, the registrar shall, on application being made in the prescribed manner, and on proof of title to his satisfaction, cause such person to be entered in the register kept under section 35 as subsequent registered proprietor of the trade mark.34. Registered users
35. Keeping of register and inspection thereof
36. Notification of changes
37. Renewal or alternatively cancellation of registration
38. Cancellation and correction of entries in register
The registrar may, on request in writing made by the registered proprietor, and on payment of the prescribed fee—39. Rules and forms
Part VII – South African trade marks
40. Register of trade marks
The registrar shall cause a register of trade marks comprised of such parts as he considers necessary to be kept, in which there shall be entered the names and addresses of persons entitled to certificates under this Part, notifications of assignments and transmissions of rights granted under this Part and particulars of such other matters as he may require.41. Application for registration
A person whose name appears in the register of trade marks of the Republic of South Africa, under the law there relating to trade marks, as the proprietor of a trade mark, may on production of the certificate of registration of such trade mark, accompanied by such number of representations thereof as the registrar may require, and on payment of the prescribed fee, be registered in the register of trade marks to be kept under section 40, and a certificate of such registration shall thereupon be issued to him by the registrar.42. Rights and privileges of registered persons
Any person registered under section 40 shall, so long as the registration of the trade mark in respect of which he is registered remains in force in the Republic of South Africa, and so long as he is the proprietor thereof, have and enjoy in Swaziland the same rights and privileges, and be subject to the same duties, obligations and conditions, as have been conferred or imposed upon him by the registration of the said trade mark within the Republic of South Africa.43. Removal from register
The name of any person registered under this Act as proprietor of a trade mark may be removed from the register kept under section 40 by the registrar—44. Assignment of trade marks
Notice shall be given to the registrar of any assignment of a trade mark in respect of which any person is registered as a proprietor under this Part, and of any amendment or extension of the period of registration of such trade mark, and the registrar on being satisfied that such assignment, amendment or extension has been duly registered in the trade marks register of the Republic of South Africa, and on payment of the prescribed fee, shall cause an entry to be made accordingly in the trade marks register kept under this Part, and in the case of assignment shall issue to the assignee a certificate of registration as proprietor.45. Registered users
46. Actions for infringement
In any action which may be brought for infringement of rights granted under this Part, any ground upon which the name of the person by whom or in whose right the action is brought could be removed from the register kept under section 40 may be applied by way of defence.47. Fees (Second Schedule)
The fees set out in the Second Schedule shall be due and payable for the several acts therein specified, and such fees shall be collected by means of revenue stamps to be affixed to the document in respect of which any such act may be done.48. Notification of changes
49. Saving
This Part of this Act shall be without prejudice to any rights lawfully acquired by a person under the Trade Marks Proclamation No. 23 of 1902 of the Transvaal as amended by the Trade Marks Registration Amendment Ordinance No. 3 of 1904 of the Transvaal and in force in Swaziland on the 20th June, 1947, and under Government Notice No. 180 of 1902 of the Transvaal as in force in Swaziland at that date.Part VIII – Subsisting registered trade marks
50. Interpretation
In this Part, unless the context otherwise requires—“assignment” means assignment by act of the parties concerned;“permitted use” has the meaning assigned to it by section 56;“registered user” means a person registered for the time being as such under section 56;“repealed legislation” means the Trade Marks Registration Proclamation (No. 23 of 1902), as amended by the Trade Marks Registration Ordinance (No. 3 of 1904), and Government Notice No. 180 of 1902 of the Transvaal, as formerly applied to Swaziland;“subsisting registered mark” means a trade mark in respect of which rights were lawfully acquired under the repealed legislation, and in respect of which rights are subsistent under and by virtue of section 49;“transmission” means transfer by operation of law, devolution on the executor of a deceased person, and any other mode of transfer not being assignment.51. Keeping of register
52. Powers of, and restrictions on, assignment and transmission
53. Certain trade marks to be assignable and transmissible as a whole only
54. Power of registered proprietor to assign and give receipts
Subject to this Act, the person for the time being entered in the register as proprietor of a subsisting registered mark shall, subject to any rights appearing from the register to be vested in any other person, have power to assign the subsisting registered mark, and to give effectual receipts for any consideration for an assignment thereof.55. Registration of assignments and transmissions
56. Registered users
57. General power to rectify entries in register
58. Power to expunge or vary registration for breach of condition
On application by any person aggrieved to the Court, or on application by the registrar to the Court, the Court may make such order as it may think fit for expunging or varying the registration of a subsisting registered mark on the ground of any contravention of, or failure to observe, a condition entered on the register in relation thereto.59. Amendment of register by proprietor or registered user
60. Notification of changes
61. Alteration of subsisting registered mark
62. Requirement of renewal of subsisting registered mark
63. Change of form of trade relationship
The use of a subsisting registered mark upon or in connection with goods between which and the person using it any form of relationship in the course of trade subsists shall not be deemed to be likely to cause deception or confusion on the ground only that the trade mark has been, or is, used upon or in connection with goods between which and that person or a predecessor in title of his a different form of relationship in the course of trade subsisted or subsists.64. Registration to be prima facie evidence of validity
In all legal proceedings relating to a subsisting registered mark (including applications under section 9) the fact that the subsisting registered mark is entered in the register in the name of a person as proprietor, shall be prima facie evidence of the validity of the original registration and of all subsequent assignments and transmissions thereof.65. Court’s power to review registrar’s decision
The Court may in dealing with any question of the rectification of the register (including applications under section 9) review any decision of the registrar relating to the entry in question or the correction sought to be made.66. Discretion of Court in appeals
In an appeal from a decision of the registrar to the Court under this Act, the Court shall have and exercise the same discretionary powers as under this Act are conferred upon the registrar.67. Evidence of entries in register
68. Evidence of things done by registrar
A certificate purporting to be under the hand of the registrar as to any entry, matter or thing that he is authorised by this Act or the Regulations to make or do shall be prima facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or not done.69. Offences
If any person makes or causes to be made a false entry in the register, or a writing falsely purporting to be a copy of an entry in the register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, he shall be guilty of an offence, and liable on conviction to a fine not exceeding two hundred emalangeni, or in default of payment thereof to imprisonment not exceeding six months, or to such imprisonment without the option of a fine.70. Power to make Regulations
Subject to this Act, the registrar may make such Regulations and do such things as he may think expedient, for regulating procedure under this Act, and generally for prescribing such things, other than fees, as may be prescribed.71. Fees
History of this document
01 December 1998 this version
Consolidation
20 November 1936
Commenced