Trade Marks Act, 1981
Act 6 of 1981
- Published in Swaziland Government Gazette 100 on 22 May 1981
- Assented to on 28 April 1981
- Commenced on 1 July 1994
- [This is the version of this document at 1 December 1998.]
Part I – Preliminary
1. Short title, commencement and application
2. InterpretationIn this Act, unless the context otherwise requires—“assignment” means transfer by act of the parties concerned;“Convention” means the Paris Convention for the Protection of Industrial Property of March 20, 1883, and any revisions thereof to which the Government of Swaziland is or may become a party;“international classification” means the classification according to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Trade Marks of June 15, 1957, as revised from time to time;“limitations” means any limitations of the exclusive right to the use of a trade mark given by the registration of a person as proprietor thereof, including limitations of that right as to the mode of use, as to use in relation to goods or services to be sold or otherwise traded in any place in Swaziland or as to use in relation to goods or services to be exported to any market outside Swaziland;“Minister” means the Minister responsible for Justice;“pending trade mark” means a trade mark which is the subject of an application for registration;“Register” means the Register of Trade Marks kept under the provisions of this Act;“registered trade mark” means a trade mark which is actually on the Register;“registered user” means a person who is registered as such under section 42;“Registrar” means the Registrar of Trade Marks appointed under section 4;“Regulations” means Regulations made under section 14;“trade mark” means any visible sign used or proposed to be used upon, in connection with or in relation to goods or services for the purpose of distinguishing in the course of trade or business the goods or services of a person from those of another;“Trade Marks Office” means the Trade Marks Office established under section 3;“transmission” means transfer by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer not being an assignment;“use of a trade mark” means, subject to section 29 and 30, use thereof in relation to goods or services in a printed or other visible representation;“visible sign” means any sign which is capable of graphic reproduction including a word, name, brand, device, heading, label, ticket, signature, letter, number, relief, stamp, seal, vignette, emblem, or any combination thereof.
Part II – Administration, the Register, functions and powers of the Registrar, fees and powers of the Minister
3. Establishment of Trade Marks OfficeThere shall be established under the direction of the Minister an office to be called the Trade Marks Office.
4. OfficersThe Minister shall appoint—
5. Seal of Trade Marks OfficeThe Registrar of Trade Marks shall maintain a seal which shall be affixed to certificates and other documents as required by this Act.
6. Register of Trade Marks
8. Hearing before exercise of discretionWhere any discretionary or other power is given to the Registrar by this Act or the Regulations, he shall not exercise that power adversely to the applicant for registration, the registered proprietor of the trade mark in question or a person having given notice of opposition without (if duly requested so to do within the prescribed time) giving to the applicant or the registered proprietor or a person having given notice of opposition, as the case may be, an opportunity of being heard.
9. Proceedings before RegistrarSubject to section 10, evidence in any proceedings before the Registrar under this Act shall be given by affidavit, but the Registrar may, if he thinks fit in any particular case, take oral evidence on oath in lieu of or in addition to such evidence and may allow any witness to be cross-examined on his affidavit or oral evidence.
10. Oaths and affirmationsAny person who is required under this Act to take any oath or to swear an affidavit may, in lieu thereof, make an affirmation or declaration in accordance with the law relating to affirmations or declarations in Swaziland.
11. Power to award costsIn all proceedings before the Registrar under this Act, the Registrar shall have the power to award to any party such costs as he may consider reasonable and to direct how and by which parties they are to be paid, and any such award may be enforced in the same manner as a judgement or order of the High Court.
12. FeesWhere under this Act or the Regulations—
13. Publication in the GazetteAnything required to be published under this Act or the Regulations shall be published in the Gazette.
Part III – Acquisition of the exclusive right to a trade mark
15. Acquisition of the exclusive right
16. Classification of registrationTrade marks shall be registered in respect of particular goods or services in one or more classes of the International Classification and any question arising as to the class within which any goods or services fall shall be determined by the Registrar, whose decision shall be final and shall not be questioned in any Court.
Part IV – Requirements for registration
18. Effect of limitation or absence of colour
19. DisclaimerIf a trade mark contains matter common to the trade or otherwise of a non-distinctive character, in deciding whether the trade mark shall be registered or, if already registered, shall remain on the Register, it may be required as a condition of its being registered or remaining on the Register—
20. Prohibition of registrationThe following shall not be registrable—
Part V – Application procedure, examination, opposition and registration
21. Application for registration of trade mark
22. Priority under the Convention
23. Information as to foreign application
24. Joint proprietors
25. Registration of parts and of series of trade marks
Part VI – Duration and renewal of registration
29. Term of registration and renewal
Part VII – Effect of registration, infringement and unlawful acts
30. Unregistered trade markNo person shall be entitled to institute any proceedings to prevent, or to recover damages for, the infringement of an unregistered trade mark, but nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods or services of another person, or the remedies in respect thereof.
31. Exclusive rightSubject to this Act and any limitations or conditions entered in the Register, the registration of a trade mark shall, if valid, give or be deemed to have given the registered proprietor thereof the exclusive right to the use of the trade mark in relation to the goods or services in respect of which it is registered, including sale, importation and offer for sale or importation.
33. Right to continue useNothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it, in relation to goods or services, in relation to which that person or his predecessor in title has continuously used that trade mark from a date anterior—
34. Bona fide use of name or description and removal on grounds of non-use
35. Power of Registrar to permit amendment of application, etc.
36. Alteration of registered trade mark
37. RectificationAny person aggrieved by the non-insertion in or omission from the Register of an entry, or by any entry made in the Register without sufficient cause, or by any entry wrongly remaining on the Register, or by any error or defect in any entry in the Register, may apply to the Registrar, and the Registrar may make such order for making, expunging or varying the entry as he may determine.
38. Fraud in the registration, renewal, assignment or transmissionIn case of fraud in the registration, renewal, assignment or transmission of a registered trade mark, the Registrar may himself rectify the Register as he may determine.
39. Breach of conditionThe Registrar may make such order as he may think fit for expunging or varying the registration of a trade mark on the ground of any contravention of or failure to observe a condition entered on the Register in relation thereto.
40. Correction of the register
Part VIII – Assignments and transmissions
41. Assignments and transmissions
Part IX – Registered users
42. Registered users
43. Registration of registered user
44. Guarantee of control
45. Approval of licence contractsThe Minister may, taking into account the national needs of Swaziland, its economic development and any other relevant factors by order, provide that, on pain of invalidity, licence contracts or any categories of them, and amendments or renewal of such contracts, shall require his approval.
46. Variation and cancellationWithout prejudice to section 37, the registration of a person as a registered user—
47. Prohibition of assignments and sub-licencesA licence shall not be assignable to a third party and the registered user shall not be entitled to grant sub-licences.
Part X – Appeals and legal proceedings
48. AppealsExcept as otherwise provided in this Act, a person aggrieved by the decision of the Registrar may appeal therefrom to the High Court (hereinafter referred to as “the Court”) and the High Court Rules shall apply to such appeal.
49. Reference to the High Court by RegistrarWhen any matter to be decided by the Registrar under this Act appears to him to involve a point of law or to be of unusual importance or complexity, he may, after giving notice to the persons concerned, refer such matter to the High Court for a decision and shall thereafter, in relation to such matter, act in accordance with the decision of the Court.
50. Validity of registrationIn all legal proceedings relating to a registered trade mark (including applications under section 37), the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the validity of the original registration of the mark and of all subsequent assignments and transmissions thereof.
51. Certification of validityIn any legal proceedings in which the validity of the registration of a registered trade mark comes into question and is decided in favour of the proprietor of the trade mark the Court may certify to that effect.
52. Registrar’s right to appear
53. Court’s power of reviewThe Court, in dealing with any question of the rectification of the Register (including all applications under section 37), shall have power to review any decision of the Registrar relating to the entry in question or the correction sought to be made.
54. Court’s discretionIn any appeal from a decision of the Registrar to the Court, the Court shall have and exercise the same discretionary powers as under this Act are conferred upon the Registrar.
Part XI – Offences and penalties
55. Falsification of entries on RegisterAny person who 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 who produces or tenders in evidence any such writing, knowing the entry or writing to be false, shall be guilty of an offence.
56. Falsely representing a trade mark as registered
57. Deceiving the Registrar or other officer
58. PenaltiesAny person who is convicted of an offence under this Act shall be liable to a fine of E2000 or to imprisonment for six months or both.
Part XII – Transitional and other provisions
59. Reclassification of existing trade marksEvery trade mark which, on the commencement of this Act, is registered and classified under a classification other than the International Classification shall, upon application for the renewal thereof under section 29, be reclassified in accordance with the International Classification.
60. Validity of existing registration
61. Pending applications, proceedings, etc.All applications for registration of trade marks and all other matters relating to trade marks which, on the commencement of this Act, are pending shall be governed by this Act and as if they had been made or arisen, as the case may be under this Act.
62. Registration of Trade Marks Agents
63. Disapplication of Patents, Designs and Trade Marks Act, 1936The Patents, Designs and Trade Marks Act, 1936, shall, upon the commencement of this Act, cease to apply to trade marks.
History of this document
01 December 1998 this version
01 July 1994
22 May 1981
28 April 1981