Trade Marks Act0001

8/9/2019 Trade Marks Act0001

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Srerurrs oF THERrpusrrc oF SourH A-rruce Perrurs, DESIGNS NDCopvnrcrrr

TRADE MARKS IIT.ISOUTH WEST AT'RICA ACTNO. 48 0F 1973

[Assrxrro ro 24 M.tY, 1973] [D,qrE oF CoMMENcEMENT: Jeuunny,1974](Unless otherwise indicated)

(English text signed by the State President)

AC T

To provide for ihe registration of trade marks end certification marks in the ierritoryof South IVest Africa end o provide or incidental matters.

I}ITR.ODUCTORY

1. Division of Act into parts.-This Act is divicied into se'renteen arts which reiateto the foilorving matters respectiveiy:

P.r.nr . Aciministration (sec:ions 5 to 9) .P.rnr II. iR.egistrabie rade Marks (sections 10 to i9).

P.rnr III. Application fo r Registration sections 0 to 2-{).

Par.r IV. Opposition (secrions 6 to 30).

P.rnr V. The Register of Tracie vlarks(sections :1 o 3O.

Prnr VI. Registration and its Eft'ects sections 37 to .12).

P.rnr VII. Infringernent (sections 13 o 46).P,rni VIII. Duration and Renewai of Registraticn (section 47).

Prnr IX. Rr'gistereC sers (section 18).Panr X. Assignment sections 9 to 51).

P,rRl Xi. Certification vlarks (section 52).P.mr XIi. Defensive Trade ivlarks (section 53).P,\RT XIII. Powers and Duties of R egistrar secticns 54 to 58).Prnr XrV. E.riciencs sections 59 to 62).P.rnr XV. Apoeeis o and Powers of ihe Court (sections 3 o 69).

P,\Rr X-/I. Oft'ences sections 0 o 7:).PlRt XUI. iVlisceilaneous sections 3 o 8.1).

2. Definitions.-{1) in this Aci. unies s he context otherwise ndicates-

"tgent" means a person who, in terns of this Act, is entitled to represent anotherperson;

ttessignmenttt means assignment by ac t of the panies ccncerned, and ttassignt' ort'assiguabiett has a corresDonding meaning;

"certification mark" means a mark registereci r Ceemed o have been egistered nciersection 52 ;

(6court" means he Sourh-West Afnca Division of the Supreme Court of South Africa;

58 1


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Sr.rrurrs oF TI{ERrpu'suc or SourH Armce - ParsNrs, DeslcNS ANDCopvmcnr

s. 2 Trade fuIarks n south west Africa Act, No. 48 of 1973 s. 2

.sdevice' means any visuai representation or illustration capable of being reproduced

upon a surface, whether by printing, embossing or by any other means;

.,legalpractitioner,' means

an attorney of the Supreme Court of South Africa or an

advocate of such Court duly instructed by an attorney or agent to appear before the

registrar or hi s dePutY:'..limitationst, means any limitations of the exclusive right to the use of a trade mark

given by the registration of"

person as proprietor thereoi inciuding limitations of that

iignt as to the iode of use, "itouse n ielaiion to goods o be sold or otherwise raded

in , or as to services o be performed, in any piace within the territotY, or as to use n

reiation to gootis o be exported o any market outside he territory;

,,mark'includes a device, brand, heading, abel, ticket, name, signature, word, letter,

numerai or any ccmbination thereof or a container or goods;

"Ministert' means he Minister of Economic Affairs;

,,permitted uset' means he permitted use eferred o in section 18 (1);

"prescribed" means prescibeci by or under this Act;

,,register', means he register of tracie marks fo r South West Africa referred to in

sect ion 1;,.registered trade mark" means a trade mark registered r deemed o be registered nder

this Act;..registered user" me3ns e person who is fo r the time being registereci s such uncier

secdon 8:,,registrar,' rneans he registrar of irade marks for South West Africa reltred to in

rection 6 (i);.tegulation" means any regulation macie and in force under this Act;

,,repealed law,t means those provisions of the Patents, Designs and Tracie v{arksproclimation, 191-?, hich relate o trade marks and which are repealeC y this Act;

"territory" ileans the territory of South West Africa;

"this Act" inciudes he reguiations;(.f,tde mark,,, other than a certification mark, means a mark usei or proposeC to

be used n reiation to goods or services or the purposes of -

(a ) ind.icating a connection n the course of trade between he goocis or services

and somJ person having the right, either as proprietor or as a registered ser'

to use he nark, rvherhJr with or without "ninciication of the identity of that

person: anci(6 ) distinguisiring he goods or services n relation to which the rrark is used or

propoieci ro b. ut.C, liom the same icindof goods or serrices connected

in the course of trade with any other person;

,.transmission" means .ransfer by operarion of iaw, devoiution on ihe executor of a

deceaseci erson an6 any other -oir of transfer no t being assignment, nd "transmit"or ttEansmissiblet' has a corresponding meaning.

(2) References n this Act to the use of a mark shail be construed as references o

the use'of a printed or other visuai representation f the mark, and in adciition, n th e case

of a containlr, use of such container and, in the case of a mark which is capabie of being

audibly reprociuced, he use of an auciibie eproduction of the mark.

(3) (a) Rel'erences n this Act to the use of a mark in relation to goods shall_be on-

strued as'references o the use hereof upon, or in physical or other relation o, goods.


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SrerurEs oF THE Repunrrc or Sorrrg Arruce - PerrNts, DrstcNS AND Copvrucsrss. 2-8 Tracle Marks in South West Africa Act, l'[o. 48 of 1973 ss. 2-8

(6 ) References n this Act to the use of a mark in relation to services hall beconstrued as references o the use hereof n an1' elation to the performance of such services.

3. Application of this Act to trade marks registered under he repealed aw.{l) Subjectto the ptouirioos of section 80. this Ac t shall apply to trade marks registered r deerned o

be regiitered under the repealed arv and such rade marks shail be deemed o be registeredin part A of the register.

(2 ) Subject o the provisions of subsection 1), ai l appiications and proceedingsconmend under the repealed arv shall be dealt rvith in accorciance with the provisions

of that law: Provided hat, n the case f an applictt ion fo r tire registration f a trade mark,the registrar may uDon a requesr by the applicant treat the appiication as an applicationfor registration n pa n B of the register.

{. Ac t binris Administration.-This Ac t shail bind the Administration of the territorl'.

PART I

AolulrlsrReitox

5. Estabiishment f trarie marks office.-(l) There shail be estabiished an office to

be cailei the tracie marks offi.ce or South West ,\frica.

(2 ) If rhe illinisrer cieems t expeiient, ihe said olice naay be estabiisheci utsicie hererrirnrrr rr r nlnce determined Vhim.W l r l t v r - , e L s ! r r 4 \

(3 ) Any piace ar wirich the said oltce is estabiished uncier subsection 2) shall to rthe puqtor.t of the jurisdiction conferred upon the court by this Act be deened to be

situateC within the area of jurisdicrion of the ccurt. and any offence under this Act com-

mitted ar such place or at iny other piaco outside the territory where proceeriings nder

this Ac t are hearci and determined b.v he registrar n terms of section -(4, may, notwith-stanCing he provisions of any other law, be trieci by :he nagistrate's court of the districtin which the place n question s situated.

6. Registrar of trade marks for South West Africe.-(1) There shail be an officer stlriedth e registrai of trade marks fo r South West AJrica who shail be appointed subje_ct.to ir elaws g-overning ire pubiic service and. who shall, subject o the directions of the Minister.have overall controi of th e trade marks office or South West Africa.

(2 ) There may simiiariy be appointed a deputy registrar and en assistant e-zistraror tracie marks for South West Africa, who shail. subject to the ccntrol of the registrar-have ail the powers conferred by this Act on the registrar and who shall. whene'rer heregisirar s foi any reason unabie o fulfil hi s duties. l.ct ennporariiy n his steaci.

7. Seal of trede marks office or South West Africe.-There shail be a seal of the tredemarl


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Srerurrs oF THE RrpuslIc Or SOUrn Armce- Pertxrs' DrstcNs ANDcOpvrucHr

ss. 9-12 Trade Marks iniouth West Africa Act, No.48 of 1973 ss' 9-12

g. unqualified persons not to practise as trade mark agents.-(l)No person may on

beharf of any other person perform any act-in connectionwith any registration under this

Ac t or any proceedings elating hereto, or fo r gain furnishadvice n relation o such regis-

tration or proceedings, or describe himseif as i trade markagent fo r the purposes of this

Ac t or hord himself out, or p.r-ii rri-r.lf to be describedor heid out, as a person who is

entitled to undertake the work of a trade mark agent fo rthe purposes of this Act, unless

he is a regar practitioner or a person whose name rias been enteredn th e register eferred o

in section 8 (2).

(2) Any person who contravenes he provisions of subsection1) shail be guilty of

an offence and liable on conviction o a fine no t exceeding wohundred rand'

PART II

Rrctsrnest-s Tnaoe Menrs

10. Essential particulars of trade rnarlisregistrable n part A of register'-{1) In orcier

to be registrabre n part A of tt . ,.girt.r, a tride mark(otner than a certification mark)

shall contain or consist of a distinctive mark'

(2) A mark which is reasonably equired or use n the trade shallno t be regisrrable'

(3) The name of a company, ndividual-or fi.rmno t lepresented na special or parti-

cuiar manner. a signature other than tnat of the applicant. or^regi.str3tionr of some pre-

decessor n hi s business, , "*ord being in it s otdio"ry signification e surname' sirall no t

be registered niess t is proved that it is distinctive.

(a ) No regisrrarion of a container n term.s of subsection 1) shallpre';ent he bona

.fide useUy ttrers"ot ny utilitati"n ot functionalfeature embodied n such container'

(5 )Thereg i s t r a t ionofacon ta ine r in te rmsofsubsec t ion(1 )D&Y,uponapp i i ca t ion

tothe court or , at the option of the appiicant and subject o the

provisions of seciion 69 ,

to the registrar by any person nterested, be expunged' y tne co.urt or the registiar' as thecsse may be , if ii is .siaulished that the registiati6n is or has

become ikely ro limit the

d.evelopment f xn y ai l or industry'

11. Requisites or registration of a trade mark in part B of theregister'-{1) In order

to be registrable n part B of the egister, a trade *utt shan,n reiation ro the gcods or

services n respect oi which it is proior.i to be registered, !e capableof becoming regis-

trable, through use, n part A of tl e iegister n respJct of suchgoods or services'

(2 ) A trade mark may be registered n part B of the register notrvithstandinghe

registration o iurt e of tft.i.gittttTn it . ttont. of thesame proprietor of the same rade

mark or any Part or Parts hereol'

lZ . Meaning of,,distinctive,,.-(1) For the purposes oi section 10 "distinctive"

means acapted. in reration to the goodi or servicei in - t.tp.ct of which a trade mark is

registered or proposed to U. t.gltt?ita, to distinguish goods orservices with which the

proprietor of rhe trade mark is Jr may be connectid in the courseof trade from goods or

services n the case of which no suctr connection subsists, eithergenerally or , wiere the

trad.e mark is registered or propor.J l" f. registered subjecto limitations, in reiation to

use within those imitations.

(2) In determining whether a trade mark is distinctive as aforesaid,regard may be

had to the extent to which-

(a ) rhe trade mark is inherently adapted o distinguish; and

(b) by reason of the use of the trade mark or by rgas.on f any othercircumstance'

ihe trade mark is or has become adapted to distinguish. ,


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SrerurES OF THE REpust C OF SOuTH ArruC'L- Prraxrs' DrslcNS AND CopvsrCnr

ss. 13-17 Trade Marks tn Siuth W'est Africa Act,I'{ot' 8 of 1973 ss' 1'3-17

13. Registration to be in respect_of articular goods orclasses.of goods'


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Sr.q.fltrEs OF THE RrpWrtC Or SOtmr ArmCe- PAfrUrS, DHICNS AN'DCOpvruCgr

ss. l?-20 Trade Marks rn Siuth West Africa Act, No,.48 of 1973 ss' 17-20

(2) In the case of honest concurrent use or of other special circumstanceswhich may

make it proper to Jo so, the ,rgirt*r-uv, on apptication in the prescribed manner' register,

subject to such condition, und li-itationi, if any, as he may think it right to impose, trade

marks the registration of which *ouio otherwiie be in .ootruu.ntionof the provisions of

subsection 1) .

(3) when separate lpp_lications are madeby different persons to be registered as

proprietor, ,.rp.Ji'u.iY "f,,"*marks that so reslmbie each other that the use of such

trade marks in relation to goods or seryices n respect of whichthey are respectiveiy ought

to be registered would uJtitety to deceive or cause confusion,the registrar may refuse

to register any of them until the rights of those persons have,upon application n the pre-

scribed manner, been detemined 6y him, or have been settled byagreement n a manner

approved bY him.

l s .Reg i s t r e t ionsub jec t tod i sc la imer. - I f a t r ademark-(o) contains any part no t separately egistereci y t'he proprieror as a tracie mark;

or(b) contains matter common to the trade or otherwise oi a

non-distinctive

character.

rhe registrar or the court, inrennain on the register, maythe register-

(i ) that the propietor shail disciaim any rightpart oi ti e tlacie mark. or to the exciusiveiuch matter as aforesaid, o the exciusivecourt hoids him not io be entirled: or

io the exciusive use of anY suchuse of al l or anY Portion of anY

us e of whicn th e legistrar or th e

decicing whether the trade mark shall be entered or shall

resuire, as a ccndirion of it s being enterecl or rertainingon

(ii) that the proprietor shail make such other ciisciaimer or Inentorandumas

registrar or the court ma)/ consider necessary or the pumose of ciefiningrights uncier he registration:

thehis

provided that no disciaimer or menorandum on the register shail. effecteny ights of the

proprietor of a trade mark except such es arise ou t of the registrationoi ihe irade inark in

iespect of which th e disclaimer s made'

19. Requirenents n regard o blank spaces.-If a trade mark containsany blank space

or spaces pparently ntended or adcied niatter, the registrar may'in ciecioing vhether he

trade mark shail be entered on the iegister, require. as a condition.of rt s being entered on

the register, ha t the blank space ;;;;;; shali,. n use, be occupieooniy by matter of a

wholiy ciescriptiv"or n"n-disiinctive character or by a trade marklegisterecin the name of

the same proprietor in respect of th ! t"-. good.s i Uy a traci-e narkof which he s a regis-

tered user in respeci of the same goo,i, *Itn the ccnsent of ihepropietor of such trade

mark. provid.ed hat, in both caser]ur. cf such trade mark is no t likeiy to cieceive r causeccnfusion.

PART II I

APPricerroN FoR Rlclsrn-trroN

20. Application for registration.-{1) Any person ciaiming to bethe proprietor of a

trade mark used or proposed o be used by him and who is deslrousof registering t, shall

appiy to the registrar n the prescribed .nn., fo r registration, andthe appiication shail be

"i-o-p"ttiedby the fee prescribed'

(2) Subject to the provisions of this Act, the registrar may-refuse heapplication or

may accept it absoiuteiy or s.ttbje.t o such amendments, modifications'conditions or

limitations (i f any) as he may deem it '

(Issue No. 7) 5 9 i


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t Fnt x.*g'-:.:Lt a;: t : - - - .: LL : ' i''

Srlrurls oF THE Rrpusrrc or SourH Armc,c. - P.qrrNts, DrstcNs AND Coprmcrrr

ss.Z0-?A Trade h{arks in South'14/est frica Act, No.48 of 1973 ss.2A-A

(3) In the case of an appiication for registration of a trade mark (other than a certifi-

cation mark) in part A of the register, the r.gistru. ffity, if the applicant agrees' nstead of

refusing he'appiication, reat it;s an appiication fo r registration n part B of the register

and deal with the application accordingly.

(a ) In the casc of a refusal or conditional acceptance f the appiication, he regrstrar

shall, on application by the appiicant n the prescribed manner and on payment of the pre-

scribed ee , tate in wriiing th i grounds or his decision and the data used by him in arriving

thereat, and th e decision hallbe subject o appeai o the court.

(g The provisions of section 63 shall rnutatis mutandis apply to an appeal under this

section, ana onitre appeal he court shall, f so required, hear he applicant and the registrar,

and shall make"n

ord.t determining whether and, if so , subject to what amendments,

modifications, conditions or limitations (i f an-v-)he appiication s to be accepted.

(6 ) Appeals under this section shall be hearci on the data so stated by the registrar,

and such further data as may have been aid before him by the appiicant, and no further

grounds of objection to the acceptance f the application shail be allowed to be taken byihe registrar. other than those so stated by him, except by leave of the court hearing he

upp."[ and where any further grounds of objection are so taken, the applicant shaii be

.niitt.j, on giving nori.. as prescribed, o rvithdrarv hi s appeai without payment of costs.

(7) The registrar or the court, as the case may be , may at any time. whether before

or afteracceptanc"e f the application, conect any error in or in connection with the applica-

tion, or mafpermit the uppii""trt r"oamend hi s appiication upon such erms as he registrar

or the court, as he cese may be , may think frt.

Zl. Advertisement of accepted appiication.-When an application for registration of

a trade mark has been accepted, whether absoiuteiy or subject o conditions or limitations.

the applicant shail, as soon as may be after acceptance, ause he application-as accepted

to be acivertised n itre prescribed urrn.r, anci he advertisement shail set orth all conditionsand limitations subjeci o which the appiication has been accepted: Provided ha t the regis-

trar inay require an appiication to be dveniseci in the prescribed manner before accept-

ance f it relates o a mark in respect of wirich proof that it is distinctive s required n terms

of section 10 (3), or in any othei case where t apoears o him that it is expedient by reason

of any excepti,onai ircumstances o to do , and where an application has been so advertised

the registr"i -"y, if he thinks fit, require it to be advertised again rvhen t has been accepted.

22. Registration of parts of trade mark.-Where the proprietor of a trade mark claims

to be entitied to the exciusive use of any part thereof separateiy, e may apply to registerthe whole and any such part as separate rade rnarks.

23. Rights in relation to parts of trade msrk.-Each separate rade mark referred to

in section 22 shall comply with ai l the conditions of an indepencient rade mark and shall,

subject o the provisions of sections 38 (4) anci 39 (2), have al l the rights attached o an

independent rade mark.

U. Proposed use of trade mark by body corporate to be constituted.-(1) No applica-

tion fo r the registration of a trade mark in respect of any goods or services hall be refused,nor shall periission for such registration be withheld, on the ground only that it appearsthat the applicant Coes no t use or propose o use he trade mark-

(o) if the registrar is satisfied hat a body corpo.laje is about to be constituted,and thatlhe applicant intends to assign he tfade mark to the body corporate


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Sr.q.rlrrEs oF THE Rrplreuc or Sounr A-r'nrca - P.r.rrxts, DesrcNS AND CoprancHrs.7{-77 Trade fuIarks n South West Africa Act, No. 48 of 1973 s. V1-27

with a view to the use hereof in relation to those goods or services y thebody corporete: Provided that the trade mark shall not be registered nless

and untii the registrar has been piaced in a position to register he assign-ment in terms of section 5 simultaneously vith registration of the rade mark;or

(b ) if the apoiication is accompanied by an application for the registration ofa person as a registereci ser of the trade mark, and the registrar s satisfiedthat the prooietor intends t to be used by that peison n reiation o those-goocis r services nd the registrar is also satisfied hat that person will beregistereC s a registereci ser hereof mmediateiy atler the registration of thetracie mark.

(2) Th e provisions f section 16 hail have effect. n reiation o a trade mark registeredunder the power ccnferreci by subsection 1) of this section, as if for the rei-erence n sub-section 1) (a) of that sectiJn o an ntention on th e part of an aoplicant or iegistration ha ta trade mark shouid be useC by him, there were substitutei a iei-erence o 3n intention onhi s part that it shouici e useci y rhe bociy orporete or registerei user ccncernei.

(3 ) The registrar may, as a conciirion of the exercise of tire power conicrred by sub-section 1) in favour of an appiicant wh o ieiies on an intention io assign o e body cor-porate as aforesaici, equire him ro give securitl, or the costs of any proceeciings eiative oany opposition or apoeai by him, anc. in ceiauit oi sucn security being duiy given, may treatthe appiication s abandonei.

?5. Non-compieted opiicstions.-'.1) If , by ieeson oi tiefauit on rhe pan of the appii-narlt ofto' ".^ontancg of the apolication. he iegistration of a tracie mark has nct beee com-g u r t s l ! v ^ $ v v g v Lpieted within six nonths iionr the date of suchicceptance, he iegistrar shail 3ive aotice ofthe non-conrpletion o the apclicant. anci. f at the exoiretion of thiny days rom that notice

or of such runher tine as ihe legistrar may allorv. ihe registration s not compiered, heappiication shail be deened to have been abanConei.

(2 ) If ihe eppiication s not accepteC nci he aopiicanr, having ceen rdvisei cf :heregistrar's objections o the aooiication. aiis to take any aciion within three nonths of thedate of such advice. he eppiication shail re cieemec o have been abancioneci.

PAR.T IV

Cppcsirlox

26 . Opposition o regist1x1i6a.--r, ) An-v rerscn .hereinaiter eferieri o as he objectcr.:ray, witirin iwo nonths lrom ihe ciate of the adver:isemenr f the eppiicarion n terms cf

section 21 , or within such urther peiod es:he lesisrrar nayr ailow. ser'/e n ihe apoiicantat hi s adiress fur serzice anci ocige et the iiade inarks office a notice of opposi tion to theregistration of ihe ;racie mart(. setting cut the grcuncis on rvhicn he reiies o supDon nisnotice, anci proot of servic e o the satist-action f tne registrar shail be furnished.

27. Lodging of ccunterstatement y apptricanl-(i) Wirhin one monrh after :he lodgingoi notice of opoosition, or within such urther perioci as ihe iegistrar may ailow, the appli-cant may serye on th e objector at iris aiciress or scrvice and iocige at the tracie marks officea counterstatenent setting out the grounds on which he reiies n support of his apoiication,and proof of sen'ice o the satisfaction oi the registrar shail be furnished.

(2 ) If the appiicant fails so to lodge a counterstatement, e shail be deened to haveabandoned is appiication.

, . , ;

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Srartms oF THERppu'srtc oF SoLrrHArruce - P.q.TENrs, esTGNs NDCopyrucrrss. 28-30 Trade Marks in South West Africa Act, No. 48 of 1973 ss. 28-30

28. Informal proceedings efore registrar.-{1) The registrar shall, with the consentof both parties, and on payment of the fee prescribed, onsider he notice of opposition andthe counterstatement hereto, and shall reconsider he appiication and the acceptance here-

of, and shall then, with or without hearing the parties, as they may agree, decide-(a) to reject the application; or(b) to register he trade mark; or(c ) that he is prepared o register he trade mark subject o such amendments,

modiflcations, conditions or limirations as he nay cieem it ; or(d ) to direct that the normal opposition procedure as hereinafter prescribed

be followed.

(2 ) If the registiar decides n terms of subsection 1) (c) that he s orepared o registerthe tracie mark subject o such amendments, mociifications, onciitions or iimitations as hemay deeno it, and the applicant does not accept such amendments, modifications, condi-tions or limitations wirhin such period as the registrar may determine, he appiicant shallbe cieemed o have abandoneci is application.

(3) The re-gistrar hail be entitled o take into consicieration uch acimissions s eirheror loth of the parties may be prepared o make. even f such admissions re not inciucied nthe notice of opposition or counterstatef,rent.

(a ) No order shall be made in respect of the costs of the proceeiings under thissection.

(5) No appeai shail ie against a decision of the registrar given uncier his section.

:9. Formai hearing of opposed pplications.-(1) In ih e e./ent of the proceeciings otbelng determined n acccroance with the provisions of section 13, or in ihe e.renr of theregistrar directing that th e aormal opposition procedure be foilorved. evicience may beadciuced by the parties n th e prescribed manner.

(2) The regisrar shall fix a ciay or the hearing of the appiication anci shall give noticethereof o the appiicant and the objector at ;heir iespective acidresses or seriice.

(3 ) Cn the ciay so ixed, or on any other day to wirich rhe heenng s aojourned, heregistrar shall, on payment of the fee prescribeci, hear the appiicant anci the objeotor ancitheir respective witnesses if any) unless he evicience as been submitted in afficiavit fornand the registrar does not require or permit e.ricience o be grver viva voce, anci shail declciewhether he application s to be refused or whether t is to be glanteci either with or withoutmcciifrcations r conciirions.

(a) The registrar may nake such orcier as o tle costs cf rhe proceeiings as ray seernjust anci ri s order shail ce eiorceable in ai l resDects s if it were J judgment of a singiejucige of ihe court.

(5 ) The decision of lhe registrar shail be subject o apceai to the court anci he :ro-visions of section 6-: shall mutatis mutanriis aool'r.

30 . Appeal against egistrar's decision.-(1) On appeal he court shail hear the partiesand the registrar. f he desires o be hearci, and sirali make an orcier determining whetherand subject o what conciitions if any) registration s to be permittei.

(2 ) On the hearing of an appeai under this section any parq/ o&y, by speciai eave ofthe court, bring forward further evidence or the consideretion of ihe court.

(3) (a) On an appeal under this section no further grouncis of objection to the regis-tration of a trade mark shall be allowed to be taken by the objector or the registrar, orherthan those so stated as aforesaid by the objector, nor shall the applicant be entitled to raiseany further grounds in support of his application, except by speciai eave of the court.


10/83

Srartrrrs oF THE Rrrwuc oF Sourg Arruc.l - Parevrs, Drstcxs AND Copvrucsr

ss. 30-32 Trade tuIarks in south west Africa Act, No. 48 of 1973ss' 30-32

(6) If any party, by speciai eave of the court, raises any further grounds and the

other purii. decidet io td. fighf thereof not to pursue the proceedings, he court shailmake

such order as to costs as it may deem fit'

( ) The court may in its discretion require the appellant to give securitY for thecosrs of the proceedings elative to the appeal and, in Aefiutt of such security being

given'

treat the appeal as abandoned.

(-


11/83

U

Srerurrs oF TrrERspr.,'ruc oE Sounr Arnrc.L - Perg"xrs, DesrcNS NDCopyrucgrss. 32-35 Trade Marks in South West Afrtca Act. No. 48 of 1973 ss. 32-35

(3 ) The registrar D&y, on request made in the prescribed manner by the registeredproprietor or a registered user of a trade mark, and on payment of the fees prescribed;

correct any error in the register relating to such trade mark or enter therein any change nthe name or address of such egistered ser.

(4 ) Any decision of the registrar uncier his section shail be subject o appeai o thecourt.

33. General power o rectify entries n register.-(1) Any person aggrie.reci y ihe non-insertion n or omission rom the register of any entry, or by any entry made n the register

"vithoutsufficient cause or by any entry wrongiy remaining on the register, or by any error

or defect n any entry n the register, may apply to the court or, at the option of the appiicantand subject to the provisions of section 69, on payment of the fees prescibed in theprescribed manner, to the registrar, or the desired relief and thereupon the court or theregistrar, as the case may be, may make such order for making, expunging or varying theentry as to it or him mayr seem it.

(2 ) The court or lhe registrar, as the case may be, may in any proceeiings uncierthis ;ection decide any question hat it may be aecessary r expedient o decide n connectionwith the rectifrcation of the iegister.

(3) In the event of rhe registrar being satisfied har any enrry reiating to the registra-iion. assigement r transrrission of a trade nark has been secured y iraud or nisrepresen-iaricn cr that any such entq/ was made without sufrcient cause or wrongly renains on rheregister, he shall aiso rave locus stancii o appiy to the court under the provisions of ihisseciion.

(a) AnV order of the court rectrfying ihe legister shall direct that noice ot ihe rectifi-cation shail be sen'ei on the registrar, and ihe registrer shaiJ, on receipt of the noticetoge'"her with the appiication on the fomr prescnbeC, ectify the register according-v.

(5 ) The Dower o iectify the register ccnferreC by this section shall ncluie power roaiter a registration n cart A of the register o a iegistration n part B of the register.

34. Aiteration of registered rade mark.-(i) The registereC roprietor of a trade markxta)/, on payment of ihe fee prescribeci, appiy in the prescribei nanner to the registrar forleave o aici to or aiter the tracie mark in any tranner not substantially affecting he identirytherect, and 'rhe registrar naay eiuse leave cr may grant it on such terms anci subject :osuch iimirations as he ma)/ hink fit.

(.2) (al The iegistrar shall require the apoiicant to aci.,,enise he appiication in theprescribei manner and, if within the prescibeC peiod from the tiate of the ad.zertisenent:ln)/ erson lodges a notice of opposition to ihe appiication n the prescribed mannervithrhe iesistiar, the registrar shail, after hearing ihe parties, if thei' rvish to be heard. decrcieihe natter.

(b) The provisions of sections 25 ro -10 nclusive sirail mutatis mutanciis sppi:lto any proceeCings nd.er his section.

35. Fower to expunge or yary registration for breach of condition.-If the registeredprcorietor or registered se r of a tracie mark ccnrravenes r faiis to observe any conciitionentered n the register n relation thereto, the court or the registrar, as the case may be. mayon application to the court, or, at the option of the applicant and subject o the provisionsof section 69, to the registrar by any person aggrieved, or on application to the court bythe registrar, make such order for expunging or varying the registration of the trade markas to ir or him mav seem it.

;"i-:,i'i5if{"."o.iffi ,

(Issue No. 7)

i ' r . , . ' 1 : r r r ' r - r

601


12/83

sr,,rrures oF THE Rrprnrtc or sourg Arruce- ParrNrs. DrslcNs ANDcopvRicl{r

,r.30-SZ Trade Marks in south west Africa Act. I'{o.48 of 1973ss' 36-37

36. Removal rom register and mpmition of limitation on ground of non-use.-{l)Sub-

;.rt to lne provisions of seitions 16 (2) and 53 , a registeredrade mark D&Y, on application

to th e court, or, uf lhe option of the applicani and subject o .the provisions ofsection 69 '

to the registrar by any person aggtieurd^, e taken off ihe registern respect of any of the

gtods or"servicet o t.tp..t of whiih it is registered, on the ground either-

(c) that the trade mark was registered without any bonafde intention on thepart

of th e applicant fo r registiation that it should be used by hi m in relationto

those goods or servicei, and that there has in fact been no bona ,deuse of

the trade mark in relation o those goods or services y any proprietor.thereoi

for the time being up to ih e date one nonth before he ciate of the appiication;

or(r ) that up to the date one month before he date of the appiication a continuous

peiod of fi.veyears or longer eiapsed duling which the iracie mark was a

registereci rade mark and iuring which there was no bona 6tie use ti'ereci

in reiation io those gccds o, ,.rii..s by any propietor thereof or the time

being; or

(c ) subject o such notice as he ccurt or the registrar, as :he case may be , snaildirect, anci subject o the provisions of the reguiations. hat. in the case of

a

trade mark legrstereci n the name of a bociy ccr-porate' cr ln the nameof a

natn.al person-, uch bcdy ccrporate has been dissoivei. or such naturaiper-

son has died, not less han iwo years prior to the ciate of ihe appiicationanci

that no application for registratio., of "nassignment cf such :iacie mark has

been macie n terms cf sec:icn 5i :

proviciei that (except where he appiicant has been pernittec uncier sec:ion 7 11) oregister

a resennbiing racie mark in respect-.f rit. goccis or siruices n question orwirere he registrar

or rhe court, as the case na-v oe, is oi Jpinion that he may properiy bepermitteci so io

register suct a trade 1aaIK), the registtri o, ihe ccurt n1ay leluse aneppiication naCe

unciel paragraph (c) or (b) of this sirbsection n reiation to any goocsor ser"rices' f it is

shown rhat there has been, before the reievant date or duri.ng th.e reievantpeiod, as the

case may be , bona icie use of the tracie mark by an.v proprietor thereof fc r ii e tinre beingin relation ro good, or seryicet "-t.ti.ct of *ni.n-thl iiade marr.is:egisterei:

Ploviceci

further that the registrar or courr may lefuse en appiicadon nad'e unierparagraph (c'l

oi this subsection n reiation to any gobor or services f it is sirown fiatihe trade mar< is

usec or proposed o be usec n ,eiatiio to such. oocs or serrices by e successorn title oi

the registereC roPrietor.

(l ) An appiicant shail no t be entitled to reiy fc r the purposes of subsection1) (b )

on any non-use oi a tra,ie mark that is shown lo oi'r. been due lo speciaicircumstances n

the tracie anci no t to any ntention no t lo us e or to abandcn he traie narkin leiation io ihe

gocds or seriices o which the appiication relates'

PAR.T Vi

R;clsrrrTroN AND is FFEcrs

37. Registration.-(i) when an application for regrsuation cf a iracle narkin pan

A or in pan B of the register has been a.iepiei anci ad,verirseci n the prsscribecianner anci

either-(a ) the application has no t been opposeci anci he time io r notice of oppositton

ha s expireC: r( , ) theapp l i ca t ionhasbeenopposec iandhasbeengran ted '

the registrar shall register the trade mark in pan A or part B, as the casemay be' oi the

register as on the date oi the roigrog oi tn. aiplicatioo fot registration, andthat date shail


13/83

LJSrarurrs oF THE Rrpuguc or Sotmr Arnrca - ParrNrs, DrsrcNS AND Coryrucurss' 37-39 Trade Marks in South West Africa Act, l{o. aB of 1973 ss. 37-39

for thepurposes of this Act be deemed o be the date of the registration: provided that wherethe registrar s satisfied hat the trade mark has been accepted n error or that, in the specialcircumstances of the case, he trade mark should not be registered or should be registeredsubject to conditions or limitations or to additionai or diffirent condidons or limitations,he may withdraw the acceptance and proceed as f the applicaiion had not been arcepted.

(2) on registration of a trade mark, the registrar shall issue o the applicant in theprescribed form a certificate of the registration thereof seaied with the seal of the trademarks office.

38' Certain trade marks to be associated o as to be assignable and hansmissible as awhole gnly'-(l) Trade marks that are registered as, or thar ire deemed by virtue of thisAct to be, associated rade marks shail only be assignabie or transmissibie ogethli and notseparately, but they shail for all other pulDoses be deenaeci o be registered"r"r.pu*ie

trademarks.

:

(2) If a trade mark rhat is registered or is the subject of an appiication for registrationso resembies another trade naark that is registered or is the suOleit of an appliition forregistration in the name of the same ptop-.r.tor that the use o, Uo,n such trade marlsby different persons n relation to goociJ orie.rices in respect of which they are respectiveiyregistered or proposed. o be regisiereci wouid be likeiy io o.r.iuJ o, ."ure con-fusion, heregistrar may at any- ime require ihat the iracie marks shail be entered n the register asassociated rade marics.

(3 ) Any decision of the registrar uncier subsecrion 2) shail be subject o appeal tothe court.

(4) When a tracie nark and any part or paris rhereof are by virtue of section 22registered as separate rade narks in the ou-. of the same proprietor, they shail be deemed.to be , anci shail be registered s, associateci rade -url=.---

(5) Any association of a tracie mark with any other racie mark registereci n the nameof the same proprietor shail be deemed. o be an association with ail marks associated withthat other trade mark, uniess he registrar or ihe court otherrise decides.

(6 ) on appiication made in-the prescibec manner by the registered proprietor oftwo or more trade marks iegisterec as issociatec tracie -ork , the registrar may, on pay-ment of the fee prescribei, ciissoive he association as regards any of them if he is satisfiedttrat there would be no iikeiihood.of.deception rconfusion being caused. f that trade markwere used by another person n reiation to any of se goocis o, ,.iri.-s in respect oiwhich itis registered, nd may amenci he register accordingly.

,n. .o,r? Any decision of the registrar uncier subsection (6) sirail be subject to aopeal to

39' Use of one trssociated r substantiatly dentical trade mark equivalent o use ofanother'-(l) When under tle provisions of tlis Act use of a registered trade mark isrequired to be proved.for any P_u.pot., .he egistrar or the court, as the case may be, may,if and so far as he or it cieeris it, -a-ccept roof of the use of an associated egistered. rademark or of the trade mark with adciiti&s^or aiterations not substantiaily affecting ts iden-tity, as equivalent o proof of the us e resuired to be proved.

(2) The use of the whoie of a registered trade mark shall for the purposes of thisAct be deemed o be the use also of any r.-girt...a traoe mark being a part thereof, egisteredin the name of the same proprietor by vini:eof sectio 22.

(Issue No. 7) 605


14/83

1

Srerurrs oF THE Repwr,lc oF SourH Arruce - PerEvrs, DxlcNs AND COPYRIGHT

ss. 40-.14 Trade Marks in South West Africa Act, I'lo. 48 of 1973 ss. 40-{4

q. Limitation of trede mark as to particular colours.-(l) A trade mark may be

limited in whole or in part to a particular iolour or colours and, in case of an application

for the registration of a trade -uik, the fact that the trade mark is so limited shall be takeninto consideration by any tribunal in deciding whether t is distinctive or not.

(2 ) If and so fa r as a trade mark is registered without limitation as o colour, t shall

be deemed o be registereci or al l colours.

41. Words used as name or description of an article or substance.-(1) If a trade mark

consists of a word which has become generaily ecognized y the public as the oniy practic-

able name or description or any article or substancJ r service or which it is registered nc i

has commonly been so used by persons carrying on business n reiation to such articie or

substance r service no t being-uie n relation to goods or service onnected n the ccurse of

trade with the p.opri.to, o. u registered se r of the trade mark, or , in the case of a certifi-

cation mark. good, or services certified by the proprietor), the registration of such tracie

mark shail fo r the purposes of section 33 be de.-med o be an entry wrongiy renaining onthe register or the article or subsnnce or service n question.

(2 ) If a trade mark contains a word to which the circumstances ontenplateci n

subsection 1) are appiicable. he regisrrar or the court, in deciding whether such racie mark

shall iernain on the register for thl article or substance or service n question may' as a

conciition of ir s remaining on the register. equire a disciaimer o be entered of any nght to

the exciusive se of such word in relation to the said articie, substance r service. nc isucn

disciaimer shail be oeeurei -rohave been maCe under he provisions of section 18 .

(3 ) The orovisions of subsections 1) and (2) shall apply respectiveiy o trade marks

consisting of oi containing a word which is the only practicable name or ciescnption f a n

article or substance cr wiich such traCe mark rvas registered, f such articie or substance

was the subjectof letters patent n the teritory rvhich have expired or lapsed.

42. Registretion n part A of register to be conclusive s to validity after seYen eers.-

In ail legai proceedings eiaring o a tiace mark registered n part A of the register including

appliartioni uncier Jrtion 33), the original registiation of the trade mark in part A of the

,.gitt.t shail. after rhe expiraiion of seven euis from the date of that registration, be taken

to be vaiici n ail resDects, nless-

that registiation was obtained by fraud; or

:he rracie narK offends against he provisions of either section 16 or section 4i .

PART VII

IlrrRrticrvrxrJj. Registration e conriition precedent o an action for infringement.-No person shail

be entitied to institute any p.o.-.dings to prevent, or to recover damages or . ihe infringe'

ment of a trade mark noiiegistered rinderihir Act: Provided that nothing in this Ac t shail

affect he rights oi any p.rton. lt common law, to bring an action against any other person

fo r passing of f goodt ot 5gr;ices as those of another person.

U. Infringement.{i) Subject o the provisions of subsections 2) and (3) of this section

and section 45 and 46, the rigtttt acquired ty registration of a trade mark shall be infringed

by- (a) unauthorized use as a trade mark, in relation to goods or services n respect

of which the trade mark is registered, of a mark so ciosely resembling t as

to be likelv io cieceive r cause confusion; or

{a )(bt

Clssue No. 7)


15/83

Sururrs oF THER.epunuc or Soum Arruce - P.c.rExrs, esrcNs Al.iDCopynrcnrss. 4447 Trade Marks in South West Africa Act, No. 48 of 1973 ss.44-47

(b) unauthorized use n the course of trade, otherwise than as a trade mark, ofa.mark so closely resembling t as to be iikely to d.eceive r cause confusion,if such use s in reiation to or in connection with goods or services or whichthe trade mark is registered and is likely to causJ njury or prejudice to theproprietor of the trade mark:

Provided that in the case of a trade mark registered n part B of the register, no interdictor other relief tluJl, for the purposes of paragraph (a) ol this subsectionl be granted if thedefendant establishes o the satisfaction of the court that the use of which the"proprietor ofthe registered rade mark complains s no t likely to be taken as ndicating a connection nthe course of trade between he goods or services nd some person having the right eitheras proprietor or as registered se r o use he trade mark.

(2 ) The right to th e use of a trade mark given by registration shali be subject o anyconditions or limitations entered n the re-qistei, nd shall no t be infringed Uy ne use ofany such mark as aforesaid n any mode in respect of or in relation to goocis o be sold orotherwise raded in or services

o be performed n any place, or in relaiion to goods o beexported to any market, or in any other circumstances, o which, having reiard to anysuch imitations, th e registration does no t extend.

(3) The y1e of a registered rade mark, being one of two or more registered rademarks that are identical or closely resemble each ot[er, shall in the exercise o; the right tothe use of that trade mark given by registration, not be d.eemed o be an infringenenr of theright so given o the use of any other of those rade marks.

.'{5. Saving^of vested rights.-Nothing in this Act shall entitle the proprietor or a

registered se r of a registered rade mark tolnterfere with or retain the use Uy uoy person ofa tracie mark identical with or closely esembling t in relation to goods or services n relationto which that person or a predecessor n title o1his has continu-ously sed ha t trade mark

from a date anterior-(a ) to the use of the first-mentioned rade mark in relation to those goods or

services y the proprietor or a predecessor n title of his; or(b) to the registration of the first-mentioned trade mark in respect of those goods

or services n the name of the proprietor or a predecessor o title oi his,whichever s the -."t!9t, or to object (on such use being proved) to that person being put onthe register or that identical or closeiy resembling radi rnark in respeit of those g:ofa, o,services nder section 17 (2).

-16. Saving .of ul" of name, address or description of goods.-No registration of atrade mark shall interfere with-

(a) any.bona de 9se by a person of his own name or of the name of his place ofbusiness, r of the name of any of hi s pred.ecessors n business, r of the nameof any such predecessor's lace of business; or

(b) the. use by any person of any bona de description of the characrer or qualityof hi s goods or services.

PART VIiI

DunenoN euo RtuewAL oF RrcrsrnanoN

47' Duration and renewal of registuation.-{1) The registration of a trade mark shallbe for a period of ten years, but may be renewed'from time to time in accordance itn tn,


16/83

Srenfres OF THE RrpgsrtC OF SOUTH rnlC't- PerenTS' DESIGNS ND COpvmCgr

ss. 474g TradeMarks , siiin west Africa Act,N;. 48 of 1973 ss' 47J8

provisions of this section: provided that in th e caseof a trade mark registered efore the

commencement of this Act, theprouirions of this ,ub"ttion shall have effect with the

sub-

;t"t,;; ;i a period of fourteen years or the saidperiod of ten years'

(2) The registrar shall, on application made by the-egistered' roprietor of a regis-

tered trad.e mark in the prescribei'*oon., "n o*iinin the prescribed period, renew the

registrarion of the trade mark fo;; i*qo of teny; from^rhe date of expiration of the

original registratitn or of the iast ,.n.*"r of registration,as he case may be , which date s

in this section eie.r.d to as "the expiration of ihelast registration"'

(3 ) At the prescribed ime.before,the expiration ofthe last registration of a trade

mark, the registrai sharl send notice in the prescriu.J,oonner to the registered roprietor

at his address or service, f the a"i. "rexpiiatior,.

"r Jlrt. cond-itions s o payment of fees

and. otherwise upon which u r.o.*or-of re-sistr"tron.*"ybe obtained. and. f at the expiration

of the period prescribed n that u.rr"rr tnlr. .onoiiionshaue no t been duly complied with'

theregistrar may remove he trade mari< rom tne reJiiter

subject o such conditions, f any'

as to ii s restoraiion o the register as may be prescribed'

(4 ) Where a trade mark has been enoved from the registeror non-payment of the

fe e fo r renewal, t shail nevertheless, or the purposeoi uoy afpiication lo r the registration

of a trad.e mark during one yeer o*i rouowing rir. aut.or ine eipiration of the last registra-

tion, be deemed o be a trad.e mark that is uti."afo;th . register:. rovided that the fore-

going provisions of this subsection sharl not have effectwhere the registrar is satisfied

e i t h e r - r i - 1 - L 1 - ^ ^ ' ^ ^ ^ - +a ;

( a ) tha t the rewasnobonaf r i e t r ade .useof ihe t rademarkrha t i r a sbeenremoveo .d.uring he two years mmeciat.iy p.l..oing the date

of the expiration of the

i rt

last registration; or

(b) that, notwithstanding any such use'\ /arise from the use of the trade mark

registration.

PART IX

RrcsrsnrP Usrns

48 . Registered sers.{1) (o ) Subject o the provisionsof this section' a person other

than the proprietor of u tr"d.] r""* -ry O, registereds a registered se r hereof n respect

of ai l or any of rhe goocis o, ,.rui..r^io t.rp.Jr of whichit iJ registered othenvise han as

a ciefensive rade -uii.;, and either with or without cond"itionsr restrictions'

(b) The use of a trade mark by a registered user thereofin reiation to good's or

services with rvirjch he is ccnnected n the course oiltno.and in respecr of which or the

timebeing the trade mark remains egistered

"n an. is-registereg ?r . o registered

sei' being

us e such as compries with any conditions o, r.rtrictio"r i which hi s regisrration s subject'is in tnis Ac t refimed to as b'e permitted use" thereof'

(2 ) The permitted use of a trade mark shall be deemedo be use by ihe proprietor

thereof, and sha[ not u. cieemed o be use by a personother than the proprietor for the

purposes of section 36 or for any ""rn.,;;;;r. ioi which such use is

marerial under this

Ac t or at common arv.

(3 )Sub jec t toanyagreementsubs i s t ingbe t lveen thepar t i e s , a reg i s t e reduse ro fatrade mark sharl be entitled to call upon the proprietor ther60f

to institute proceedings o

prevent nfringementthereoi orra. iin. propii.tbf ,.futtt orneglects o do so within two

months after being so caired "d;;;h ; ;;gtr;.r.a' "t.i--uy

inJitute proceedings or in -

fringement in his o-wnname u, ii n. *lie thJprop;.iot'making the proprietor a defendant'

but a proprietor st cited us a d.f*dant shair noi b. liablefor any costs unless he enters an

appearance and takes part in the proceedings'

no cieception or confusion is likeiy to

tU"t it the subject of the application for

.;{?wt

(Issue No. 7)


17/83


18/83

Srenrrrs oF TrrE Repl,:suc or Sotrrg Arruce - P.q.TENTs, rsicNs ANDCopynrcnrss. 48{9 Trade Marks in South West Africa Act, I,{o. 48 of 1973 ss. 48-49

(i) that the registered user has used the trade mark otherwise than by wayof the permitted use, or in such a way as to deceive or cause confusion,or to be likely to deceive or cause confusion;

(ii) that the proprietor or the registered user mis-represented, r failed todisclose, some fect material to the appiication for registration, or thatthe circumstances have materially changed since the date of the registra-t ion;

(iii) that the registration ought not to have been effected, having regard tori-ehts ested n the applicant by virtue of a conract in the performanceof which he is interested:

(C) may be cancelled where the trade mark in respect of whrch such person hasbeen egistered as been assigned nd appiication has n terms of section 51 (1)been made for registration of the assignment.

(9 ) Provision shail be made by regulaiion for the notification of the registration ofa person as a registereC ser to the registereC roprietor of the tracie mark and for the

advertisement hereof, and for the notifrcation of an appiication under subsection 8)to the registered roprietor and each registered ser (not being the applicant) of the trademark, and fo r affording the applicant n such an applicetion, anci ail persons who intervenein the proceedings n accordance with such eguiations, an opportunitv of being heard.

(10) The registrar may at eny ti me cancel he registration of a person as a registereduser of a tracie mark, iu respect of any goocis or ser','ices n respect of which the tracie markis no longer registered.

(11) Any decision of the registrar uncier he provisions of this section shail be subjectto appeai to the court.

(12) Nothing in this section shail confer on a registered user of a traie mark anyassignabie r transmissibie ight to the use hereof.

(13) The expression permitted use" in subsection 2) shail be cieerneC o inc iucie heuse of a trade mark before any person has been entered n the regisrer as the registeredowner hereoi if-

(a ) an applicc.tion o register he person who has so usei the tracie mark, as aregistered ser of the trade mark is made within one year after the ccmmence-ment of this Act; and

(b ) that person has used the trade mark in connection with goods or seryicssin respect of which he is so registered, and, if the registration s erTecteCsubject to any conciitions or limitations, he has useci he trade mark in amanner substantiailv n accordance ith such conditions and Iimitations.

PAiLT X

ASSIGNME}vT

.{9. Powers of and restrictions on assignment end transmission.-(1) Notwithstandingany rule of larv to the ccntrary, a registered rade nark shall be, and shail be deemed alwaysto have been, assignable nc i ransmissible ither n connection rdth or .vithout the goodwillof the business oncerneci n the goods or services or which it has been egistered.

(2) A registered trade mark shaii be, and shall be deened aiways to have been,assignable nd transmissibie n respect of either ai l the goods or services n respect of whichit is registered, r was registered. s the case may be, or some (but not ail) of those goodsor services.

(3 ) The provisions of subsections 1) and (2) shall have effect n th e case of an un-registered rade mark used in reiation to any goods or services as they have effect in thecase of a registered rade mark registered n respect of any goods or seryices f at tle effective


19/83

Sranrres oF THE Repusuc or Sours Arzuca - P.q.rrNts, DrstcNS AND Copvnlcsrs. 49 Tracle Marlcs in South West ,4.fricaAct, I'io. 18 of 1973 s. 49

date of the assignment r transmission of the unregistered rade mark it is or was used n

the same business n which a registereci rade mark is or was used, and if it is or was assigned

or transmitted at the same date and to the same person as that registered rade mark is orwas assigned r transmirted aad in iespect of -eoods r services ll of rvhich are goods or

services n relation to rvhich he unregistered rade mark is or was used n that business nd

in respect of which that registered racie mark is or rvas assigned r transmitted.

(4 ) Notwithstanding nyihing ir subsections l), ( i) an d (3 ) contained, trade mark

shall not be, or be deemed o ha.,,e een, assignable r transmissibie n a case n which.

as a result of an assignment or transrnission, here ,,voulci n the circumstances ubsist, or

have sui:sisted, whether uncler he common larv or by registration, e:lciusive ights n more

than one of the persons concerned o lhe use of trade marks which so resenble each other

that the use thereof by differenr persons n reiation to tire goods or services n respect of

which such exciusive ights subsist ornould ha.ie subsisted wouid be, or wouid have been,

likely to deceive or cause confusion: Proviciecl hat rvhere a trade mark is. or has been,assigned or transmitted n such a case as aforesaid, he assignment or transmission shall

no t be deened to be, or to ha.,,e een. nvaiid under this subsection f the exciusive ights

subsisting as a resuit therecf in the persons ccncerneC espectively are, or were, having

regard to the limirations imposed therecn. such as not to be exercisable y two or more

of those persons n reiation to good.s o be sold, or otherwise raded in , or services o be

performeC, within ihe territorv iotherwise than ic r export therefrom) or in reiation to

_qoods o be er.porteci o ihe same market outside he telritory.

(5) The proorietor of a iegisterec rarie mark 'vho intencis o assign t in respect of

any goods or senrices n ;espect of ".viricnt is registerei may submit to the registrar n the

prescibeC rnanner a statement of :ase setiing ou t lh e circumstances, nC he registrar may

oo puy-.nt oi the fee prescribei issue ohim a certiicate stating whether, having regard

to the goods or ser"yices nd ihe trade marks referreci o in the statement of case, he pro-

posed assignmenr f the first-menrionei trade rark rvouid or would not be invalid under

subsection 4) , anci a certincate o issueC irail,subject o tne provisions of this section as to

appeal, and uniess t is shown ha t the ceftificare was obtained by fraud or misrepresentation,

be conciusive s ro the vaiidir-r' r invaiiciityunder the saici subsection of the assignment n

so fa r as such validity or invaiiciit;rdepen


20/83

Sr.lrures oF THERrpusrrc or Souttss. 49-52 Trade Marks in South

AIRIcA - Pernxts, DestcNS ANDCopvnrcsr

lyrr, Africa Act, l'lo'-48 of 1973 ss' 49-52

the use of the trade marks in the exercise of the saidrights would_ ot be contrary to the

public interest. D?y, on payment of the fe e prescribed'approve the assignment r trans-

mission, and an assignment or transmission so approvedshaii no t be deemed o be ' or to

have been, nvaiid ,rn-d.,. hi s subse.lion or under subsectiona) of this section, rovided ha t

in the case of a registered rade -urL upplication.underection 51 for the registration of the

title of the person becoming entitleJis^made within si xmonths from the date on which the

approval s giventi.io th . I"r. of a transmission,was made before ha t date'

(7) Notwithstanding anything contained n subsections1) and (2 ) an d subject o

the provisions of subsections 4j and (q , *h.r. a_tradeark which is the subject of a pending

appiication or registration has ,G.qu.nt to.the. dateof tire application been assigned r

transmitteci, he registrar B&y, ",;;;-il;iion in trre pr.r"ribed manner ancl subject o

such

conditions as he may cieem r.".rr"[, ailow, on paymentof . he fee, o:t1b-l;^:l:ittto"

or persons entitied to such rade -"ik by reason oisuchassignment or transmission, o be

substituteo",

oppii;;;; or appii"ants fo r registration of the trademark'

( s ) A n y d e c i s i o n o f t h e r e g i s t r a r u n d e r t h i s s e c t i o n s i r a l l b e s u b j e c t t o a p p e a l t o t h ecourt.

5 0 . P o w e r o f r e g i s t e r e d p r o p r i e t o r t o a s g i g n a n d g i v e r e c e i p t s . - s u b j e c t t o t h e p r o -visions of this Act, the person oi the time being ,nt.rJd

in the register as proprietor of a

trade mark shall, subject Loeny tigl;; upp."ti"g nom theregister o be vested n any other

person. have poiver to assign he tiade rnirk and to giveeffeciuai eceipts or any considera-

iion fo r an assignment hereoi'

51 . Registration of assignrnents nd ransmissions'{1)Where a person becomes

cntitleciby assignment r tr"nr*iirion to u r.gist.reci rademark, he shall make applicauon

to ihe registrar on the form pr.r.r,u.J to ..g[r.r hi stit].e,and the registrar shall on-receipt

of the appiication tcgether with tft. f. . preJcibed andoi proof of title to hi s satisfaction'

register him as theproprietor of G trade mark in respect of the goods or servicss

n respect

of .rhich the assignment . ,r"rrr-ission has erTect, nc ishan cause particulars of the assign-

ment or transmission o be entered n the register'

(2)Everyappi icat iontoregis ieranass . ignmen'" ' I1 i : i l :: l : ' in termsofsubsect ion(i ) shail recite n. .n rrive iate 6f su.h assignment or

transmission and, if appiication s

naaciemore rhan tweive months after such date. theappricant sharl be liabie to pay such

penalty as may be Prescribed'

(-1)Any decision oi the registrar uncier hi s section shallbe subject o appeal o tne

v v u t L .

(,1) Except or the purposes of an appeal under hi s sectionor of an application unoer

section 33 , a ciocument or instrument in respect of rvhichno entry has been made in the

register n accordance with ,ft. pt""trion, of subsection1) of this section' shail no t be

admittec in evid.encen

"ny.ou'.i in-proof of the titre to a trade mark unless

he court

othenpise irects.

PART XI

Cenlrtcertox M,TRKS

52 . Certificetion marks.


21/83

Srarures oF THE R.rpunuc or Sours Arruca - PereNts, DrslcNS AND CopvrucHr

s. 52 Trade Marks ln south west Africa Act, I'{o.48 of 1973 s' 52

(2) An appiication for the registration of a mark under this section shall be made to

the regtiirar in ih. prescribed manner, and may be made by any -sovernmentor provincial

authoiity or any p.iron desiring o be registered s he proprietor thereof.

(3 ) In determining whether a mark is adapted o distinguish goods or services s s

.oot.n1piated n subsection 1) , regard may be had to the extent o which-

(o ) the mark is inherently adapted. so to distinguish the goods or services nquestion: and

(b) the mark is in fact adapted so to distinguish, by reason of the us e hereof or

of any other circumstances, he goocis r services n question.

(4 ) There shali be submitted o the registrar uies which shail hereupon become part

of the appiication) stating he circumstanceJ n which the proprietor concerned s to certify

goods oi^service,"r

.oot-.mpiated n subseclion 1) and to authorize he use of such mark,

and othenvise governing he use hereof.

(5) The provisions of subsections 2) and (4) to (7), both _inclusive, f section 20 ,shaii have efreciin reiation to an appiication under subsection 2) cf this section as hey have

efrect n reiarion o an appiication under subsection 1) of the said section 20 .

(6 ) In the exercise f hi s powers under subsection 5) of this section he registrar shaii

have regard o the same considJrations, o far as he.vare rel.evant, o which he wouici have

regard f the appiication ..verean apoiication und.er section 0 (1) and to any other eievant

consicierations, nciuciin -(a ) the iesirabiiiry of ensuring ihat e cenification nark shail ccmprise some

inciication ha t it is such a n:ark:(b-S he ccmperency of the appiicant io certify rhe goods ot ser,'ices n :especl oi

which the rrari< s to be registereci:(t ) the adequac-'r f the ruies n quesiion; anci

(d) the acivantage of the Pubiic,and may cail to his essisrance ne or more persons. who sirail rerfonn the prescribed

iunctions.

(7) The rules efelied to in subsection -i )shail aitel the acceptance f the aooiication

be ocen to inspection n ihe same manner as the resister.

(S ) Th e provisions of seciions 1 25, 26 o 30 , both inciusive. nd 37. shail have efect

reiation ro an appiication under subsection 2) of this secticn 3s hey have effect n reiation

an appiication uncier section 20 (1).

(9) The rules reierrei to in subseclion -l ) may, on the application of ihe registereC

proprietor concerned, be aitered by the registrar.

(10) The registrar atay require an application unier subseclion 9) to'oe acil'eniseC

inine preicribed nanner rn any crse wher. it

"pp."rsio irim io be expedient so . o do . and

ii where he registrar equires an application ; be so acivertisei. any person gives, withinihe prescribeci lme. notiie io the t.girtr"t of ooposition io the apoiication. he provisions

of sections 26 to 30, both iuciusive,lball, mutaiii mtttancirs ppiy, in so fa r as they can be

appiied.

(11) Subjecr o th e provisions oi this section, he provisions of this Act, except he

provisions of sections 24 and 48, subsections 4) to (7), both irrclusive, of section 49, and

section 73 shall, except n so fa r as s otherwise provicied n this r\ct, and in so fa r as they

can be appiieci, appi-v o a certification mark.

(12) The power to order rectificarion of the register conl'erred by section 33 shall

include, n relarion to certification marks, rectification on the ground-

(a ) that. in the case of any goods or sen'ices n respect of which the mark is

reglstered, he proprietbiis no longer comDetent o certify those goocis or

services s s contempiated n subsection 1) ;

I

Jt ,''

11 1

to

- _ -,

: . I. r i i .

q ;

; " i ' - , iI - :* - I ' ' r i i . . ! . r '

Ossue No. 7) 621


22/83

. I,

Sr.q.TurEs F THE Rrpwuc oF SoLr"rH rrucl - Parpxrs, DEsIGNs AND Copvnlcgtss. 52-53 Trade Marks in South West Africa Act, No. 48 of 1973 ss. 52-53

(b ) that the proprietor has faiied to observe a provision of the rules which it washi s dutY to observe;

(c ) that it is no longer to the advantage of the public that the mark shouid beregistered; or

(d ) that the advantage of the public demands hat, if the mark remains egistered,the rules n question should be varied.

(13) A certification mark shall not be assignabie r transmissible otherwise han withthe consent of the registrar, who may grant hi s consent subject o such erms and conditionsas he may think fit.

(1a) Subject o the provisions of section 69 , he court n&Y, on th e application of the

registrar or of any person aggrieved, nd the registrar may. on the appiication of any personaggrieved, make such order as t or he thinks fi t fo r varying the rules which govern he useof such mark.

(15) There shail. be a right of appeal to the court in the prescribed manner againstrefusal by a registered proprietor of a certification mark to certify goods or services, r toauthorize he use of the certification mark, in accordance vith such ules.

(16) A person called o assist he registrar n terms of subsection 6) shall be entitledto the prescribed emuneration.

PART XII

DEreNsIve Tnaor lvlenrs

53. Defensive egisfration of well-known &ade marks.-(l) Where the regisrrar is ofopinion that, by reason of the extent of use or of any other circumstances, a trade narkregistered n part A of the register rvould, if used n reiation to goods or services ther

than the goods or services n respect of which it is registered, e ikeiy to be taken as ndicat-ing a connection n the course of trade between he first-mentioned goods or services ndthe proprietor of the registered rade mark, then, notwithstanding ha t the proprietor doesnot use or propose o use he trade mark in relation o the first-mentioned goods or servicesand notwithstinding anything in section 36 contained. he trade mark DnY, on appiicationby the proprietor in the prescribed manner, and on payment of the fee prescribed, berigistered in nis name in iespect of the first-mentioned goods or services as a defensivetridr mark, and such a trade mark, while so registereC, hall not be liable to be taken offthe register under section 36 n respect of those goods or services.

(2) The registered proprietor of a trade mark may appiy in the prescribeci manner forthe registration thereof in respect of any goods or services as a defensive rade matk, not-withstinding that it is already registered n his name in respect of those goods or servicesotherwise han as a defensive rade nark, or may appiy for the registration therecf in respect

of any goods or services otherwise than as a defensive racie mark notwithstanciing hat itis already registered n his name in respect of those goods or services as a defensive rademark, in each case n lieu of the existing egistration.

(3) A trade mark re-qistered s a defensive rade mark and that trade mark as other-wise registered n the name of the same proprietor shail, notwithstanding that the respectiveregistrations are in respect of different goods or services, be deemed to be, and shall beregistered as, associated rade marks.

(a) On application to the court or, at the option of the appiicant and subject o theprovisions of section 69, to the registrar by any person aggrieved, he registration of a trademark as a defensive rad.e mark may be cancelled on the ground that the requirements ofsubsection l) of this section are no longer satisfied n respect of any goods or services nreipect of which tle trade mark is registered n the name of the same proprietor oti,erwisethan as a defensive rade mark, or may be canceiled with regard to any goods or services


23/83

SrlnrrEs oF THE Repwuc oF SourH Arnrcr - Parexrs. DESTcNS ){DCopymcrrss. 53-57 Trade Marks in South l4/est Africa Act, lio. 48 of 1973 ss. 53-57

in respect of which it is registered as a defensive rade mark on the ground. hat there isno longer any likelihood that the use of the trade mark in relation to those eoods r serviceswould be taken as indicating a connection such as is mentioned in subsection 1) of thissection.

(5 ) The registrar rnay at any time cancei he registration as a defensive rade markof a trade mark of rvhich here s no longer any registration n the name of the same pro-pnetor otherwise han as a defensive rade mark.

(6 ) Except as otherwise expressiy provided in this secrion, he provisions of thisAc t shall appiy mutatis mutandts n respect of the registration or cancellation or the registra-tion of trade marks as defensive racie marks and of trade marks so registered s hey appiyin other cases.

PAR.T )ilII

Powrns axo DurrEs oF Rrcrsrnel54 . Yenue oi proceedings.-The place where any proceeCings before the registrar

under this Act are to be hearci and determined n any particular case shail be determinei bythe registrar after consultation vith the party or parties concerned, and such proceedingishall be heard and cietermined b,v him at that oiace.

55. General powers of registrar.*{1) The regisrrar mav, for the purposes of this Act-(a) receive evicience nci cietermine whether and to what extenr t shall be slven

by afficiavit ot viva i,oce upel oath;(b ) summon witnesses nd issue commissions de bene esse;(c ) order disccverir or inspection, and require the due prociuction of ciocuments;(d ) consicier ny interiocutoqr or other matters as may seefitexpeCient;(e ) award cosrs against any parry io any proceedings efore him,

and generally the regisrrar shail in connecrion with any proceeCings before him have aiisuch powers and urisdiclion as are possesseci y a singie udge in a civii action before hecourt.

(3 ) Where express rovision s not containeC n this Act on any matter of procedure,the registrar shail have recourse o the ruies governing procedure n the court.

(3) Whenever by this Act any peicci is specifieci within wirich any act or thing isto be done, the registrar Inay, unless otherwise expressiy provicied, extend he period eitherbetbre or rfter it s expirarion.

56. Power of registrar to ailow lmendment of any document.-(1) The registrar may atany

time before registraticn of a tracie mark permit the amenciment of any documentrelating to any appiication or proceedings efore him on such terrns as to costs or other-wise as he thinks ust.

. (2 ) If rights in a trade mark which rs the subject of a pending appiication have beenacquired by a body corporate subsequent o the date of applicatio;, tG registrar may, ongooci cause shown and on payment ot the fee prescribed, permit amendmeniof the applica-tion by the substitution of the name of the

-bodycorporate as appiicant for regisiration

notwithstanding ha t such body corporare was not in exiitence at th i date of the apf,fication.

57 Duty of registrar in exercising discretionary power.-Whenever any discredonarypowgr is by this Act given to the registrar, he shall nol exetcise hat power adverseiy o anapplicant without giving that applicant an opportunity of being hiard personally or byhi s agent.

(Issuc No. 7)


24/83

Sre.rures oF THE Repusllc oE SOUrs AFnlce- Perexts' DeslcNS ANDcOpvrucHr

ss. 5g_63 Trade l,larks t, , siutn west AfricaAct, I,{o.48 of 1973 ss. 58-63

58. Ta-ration of costs awarded by registrT'-Anycosts arvarded by the registrar

shall be ta.red by a taxing officer"r

irr. touit, urra puy-.nt thereof may be enforcedn the

same manner as if they rvere costs allowed by a judge of the court'

PART XIV

EvtPexcE

59 . Register o be prima fecie evidence'-Anyregister kept.under this Act shall be

prima acie evidence of any -utt.rsdirecteci ,

"urhoriziouy thii Ac t to be nserted n that

register.

60. certificates of registrar to be prima facieevidence.-(1) A cenificate purponing

to be under the hand of the registrar as to anyent{, matte^r r thing which he is authorized

by this Ac t to .ut.-o, do , shalr ;'p;i*;f"r;,.ui,i.oce of the entry having been made ancl

of the contenrs hereof and of the niatter or thinghaving been done or leit uncione'

(2) Pnnted or written copies or extrects purpoltingto be,copies of or extracis rom

any register or book or document reiating ,o,rri. -"ikt and kipt in fi e "'raciemarks

office and certified by the reglstr"i uod ,."i.drvith the sear of rhat office. sirail be aomittei

in evidence n al l ccurts "o dp.o.*i"gr;i,hout iurther proof or production of th e

originais'

61,. Registration o be prima facie evidence f variciit-v.-Inali leeai croceeriings elating

to a registered rade mark (inciuding appiication,roo.t section :3 ol:hit A.l; ihe fact that

a person is registered as p.opri.i*"or tne truoemark sha[ be prima facie e'rii'ence of the

variciityof fte original registration of the tracie *u.t "traof ail subsequenr o'ssignments nci

transmissions hereof'

62 .Cer t i f i cg t ionofva l id i ty. - Inany iega ip rocee< i ings inwhich theva l id ' i r l ro f the

registration of a registeredrade mark is in issue anci s declded n favour of

fi e proprietor

of the trade mark, the court may -rtify to thu, .r..t. and if it so certifi'es. hen in any sub-

sequent .g"r pio;..aiog, in which the vaiiciiryoi n.registration of that trecie rark is in

issue, he proprietor of ,[ . tr"a. -uit, o. , obtaining annai orcier or jucigmenr n hi s favour'

sharl be entirred o ni s ui i costs, nurg., and e,*,peni.,, between attorne;r and ciient, uniess

in the ,uirr.qrr.ot piotttaings the court certifiesotherwise'

PART Xl'

Appners ro ANDPou'rns oF THECorrnr

6 - ? . A p p e a i a g r i n s t d e c i s i o n s o f t h e r e g i s t r a r t o t h e c o u r t a n d p o w e r s o f t h e c c u r t . -(1 ) In adciirion o ooy righr "f ;; ;

specifiiaily conferred n respect of proceedingsncier

rhis Act, any parry to any p.";;;;;;i#;;. iheregistrar, oth& than proceeiings under

section 28 , may appeai to the court against un i OtJtionor order Pursuant o such pro-

ceeiings.

( 2 ) S u b j e c rt o t h e p r o v i si o n s o f s u b s e c ti o n ( 5 ) , a n " p pl l l a g a i n s t t h ec i e c i s i o n o f ' rh ecourt in any apoeei to it uncle;;hit Ac t shail li e to'ine

app-ilate division of the Supreme

Court.

(3 ) In addition to any other poweis conferred upon it bythis Act' the court may ln

relation to such aPPeal-(a l conlirm, vary Or reverse he orcer or decision appeaied

against' as Justlce

may requlre;(L)'ll*;;":i$"J:,T."f?'*,',HT"ffil:il::J-tl"J*'iil{ii{:;ff1:, ;;;;;; ;hJ;i.lli "ir*rr'.,

.uid.ote or the setting out of further informa-

uon;

.i (Issue No. 7)


25/83

L._.r

Srerurrs oF THE Rrpusllc or Sours Armce - PerENts, DestcNS AND Copvmcnr

ss. 63-68 Trade Marks in South West Africa Act, No. 48 of 1973 ss. 63-68

(c) order the parties or either of them to produce at some convenient time in

th e court oi appeai such urther proof as shall o it seem necessary r desirable;

or(d) take any other course which may lead to the just, speedy and, as far as may

be possible, nexpensive ettlement f the case; and

(u) make such order as o costs as ustice may require'

(a ) (c ) Every appeal o the courr shail be noted and prosecuted n the manner pre-

scribed'by aw for"ppiiir

to it against a civii order or decision of a single udge of the court,

save hat'the period within which such appeai shail be noted shall be three months after he

date of the oider or decision and that iiri appeal shall be prosecuted within si x weeks of

th e date upon which it was noted: Provided ha t the court inay, on application and on good

cause shown, aliow such extension of time for noting or prosecuting he appeal as may

be necessary.(b ) Every appeai o the appeilate division of the Supreme Court shall be noteci and

prosecutedin he .uo^o.t prescribld by ia w for appeals o suclr division n civii proceeCings

iave that no special eave o appeai o such division shall be necessary.(5 ) The parties to proceedings efore the registrar shail be cieemed o be parries o

civil proceedings or the pu.pot.t of section 0 (-?)of the Supreme Court Act, 1959 Act

xo . jq of 1959), and the ippiit"t. division of the Supreme Court shali have unsciiction o

hear and determine un oppe"i against an orcier or decision of the registrar without any

intermediate appeal first having bien hearci and cietermined by the court, if the said parties

iodge with thJ iegistrar noticJin writing of iheir consent hereto on the form prescribed

ancipay the prescribed ee .

64. power to order production of certificete of regisrration.-in addition to any other

powers conferred upon it bl,this Act, the ccurt may in leiation to an)/ application or appeai

under this Act ordir any party to deiiver o the courl or to the registrar the certiicate of

registration of any trade mark.

65. I.{otice o registrer of applicetion o court.-Beibre any application is made to thecourt fo r an order invoiving the performance of any act by the registrar or ailecting any

entry in the register, the appiicant shail in ihe tlanner prescibxi give the registrar at least

fourteen ciays'notice befori the hearing oi such application: Proviied that the registrar

ffi&y, n his discretion, waive such notice or accept such shorter notice as he nay in the cir-

cumstances deem sufficient.

66. Registrar,s appearrnce n proceedings nvoiving rectificetion of register.{l) In

any legai proceed.ings n rvhich the rilief sought includes elteration or rectification of the

..girt.i, the registral shail have the right to appear and be heard. and shall appear if so

directed by the court.(2) Unless otherwise directed by the couri, the iegistrar, in lieu of aopearing and

being heard, may submit to the court a staten:lent n writing signed by hrm, giving particulars

of ihle proceedings before him in relation ro the inatter in issue or ot the grounds of anydecision given Ui nim afrecting such rnatter or of the practice of the trade marks office

in like ."ies or of such other matters reievant to the issues enci within his knowiecige s

registrar, as he thinks fit, and the statement shail be deemeci o iorm part of the evidence n

the proceedings.

67. Court's power to review registrar's decision.-The court, in deaiing with anyquestion of the reitification of the register including at l appiicatjons under the provisions

of section 33), shatl have power to revietv any decision of the registrar relating o the entryin question or the correction sought o be made.

68. Discretion of court in appeals.-In any appeai against a decision of the registrarto the court under this Act, the court shall have power to exercise he same discretionarypowers as under this Act are conferred upon the registrar.


26/83

fi1' . : ' . '

Sra.nrres oF THE Rrpu'sltc oF SourH Arrucr - P.c.TExrs, DrsrcNs ANDCopynrcnrss. 69-72 Trade Marks in South West Africa Act, |,{o. 48 of 1973 ss. 69-72

69. Procedure n cases of option to apply to court or registrar.-Where under any pro-vision of this Act an appiicant has an option to make an application either o the court orto the registrar-

(a ) if proceedlngs oncerning he trade mark in question are pending before thecourt, the application must be made to the court;

(b) if in any other case he appiicadon is macie to the registrar, he may at anystage of the proceedings ef'er he appiication to the court. or he may afterhearing he parties determine he question between hem subject o an appeaito the court.

PART Xlf

OEreNcrs

70. Penalty for making faise enfries in registers. or making, producing or tenderingfalse coPl'.-AnY Person who-

(a) makes or causes o be urade a false entry in any register kept under his Acr; or(r ) makes or causes o ce made a writing ialseiy purporting to be a copy oi an

entry in any such register: or(c ) produces or ienders or causes o be orociuceci or tendered as evidence any

such entry or copy thereof knowing the same o be faise,

shall be guiity of an ofrence anci iabie on con't'iction to a ine ilot exceeciing wo huncireirand or to impnsonment to r a period nct excesiing rweive xronths or ro both such fineand such mprisonmenr.

71. Penaity for mtking false statements or the purpose of deceiving or influencingregistrar or other officer.-Any person who-

(a ) fo r the purpose of deceiving he iegistrar or any officer n the execution of theprovisions of this Act; or(b ) for the purcose of procuring cr influencing he cioing or omission of anythingin relation to this Act or aD).r ;111sr hereuncier,

makes a faise statenent or reDresentation keowing rhe same to De alse, shail be guilty ofan offence and liabie on conviction to a fine not exceeiing two huncireC anci or to imprison-ment for a pericd not excseding weive months or lo both sucir ine anci such nprisonmenr.

i2. Penalfy for faiseiy representing a trede mark es registered.-(i) Any person whomakes a representation-

(a) with respect o a marl< not being a iegistereci racie nark, to the effect thatit is a registereci racie marl


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Srerurrs oF THE Rlptnuc or Sours Arnlc.,\. - Pereivrs, Drsrcxs AND Copyrucsrss.72-76 Trade Marks in South West Africa Act, Irlo.48 of 1973 ss. 2-76

(a ) where that word, abbreviation or ietter is used n physical association withother words delineated n characters at least as large as those in which thatword, abbreviation or letter is delineated and indicating t]rat the reference s toregistration as a trade mark under the law of a country outside the territorybeing a country under the law of which the registration referred. o is in factin force;

(b ) where that word (being a word. other than the word "registered"), abbrevia-tion or letter is of itself such as to indicate that the reference s to such regis-trarion as s referred o in paragraph (a); or

(c ) where ha t word, abbreviation or letter s used n relation to a mark registeredas a trade mark under he aw of a country outside he territory and n ielationto goods to be exported o that country.

PAR.T XVII

IftscrrlaNEous

73. Trade mark not to be deemed to be deceptive or confusing in certain cases.-The use of a registered rade mark in reiation to good.i between which ind rhe person usingthe trade inark a form oI ccnnection n the course of trade subsists, hail no t be deemed obe iikely to deceive or cause onfusion on the ground oniy that the trade mark has been oris used n reladon to goods between which and that Derson or a pred.ecessor n title oi thatperson a different orm of connection n the course ol rade subsiited or subsists.

i4. IJse of frade mark for export tade.{l) The application of a trade mark in theterritory to goods-to be exported

oo_. the territory, and. ny othel act d.one n the teritoryin.relation o goods 1o be so exporteci which. f done n reiation to goods o be sold. r other-wise traded in within the territory, wouid. constitute use of u trui. mark therein, shail bedeemed o constitute us e of the trade mark in reiation to those goods fo r any pun:ose orwhich such use s materiai uncier his Act or at common law.

(2) Subsection 1) shall be deemeci o have had effect n relation to an acr cionebeforethe date of the commencenaent f thrs Act as it has eftect in relation to an act d.one afterthat date, but shail not affect a determination of a court which was made before that dateor the determinadon of an apoeai against a cieternination so made.

75. Payment of prescribed ees to be made before ects done or doc:rments ssued.-Whenever under this Ac t any prescribeC ee is payabie n respect of any application, egis-tration, matter or ciocument, he registrar uy t.iure to penorrn the ac t or to receive or toissue he document (as he case nay be) untii ihe fee payabie n respect hereof s paid.

76' Address. or service.{l) With every appiication or notice of opposition underthis Act, the applicant or objector._as he *r. *"y be, shail furnish an adbiess (not beinga post box number) acceptable o the registrar as in adciress or service which shau, for allthe purposes of the appiication or the notice of opposition, be d.eemed o be the add.ress fthe applicant or of the objector (as the case may be), and al l documents n relation to theappiication or notice of _opposition may be served by leaving them at or sending hem tothe address or service of the applicant

-orof the objector, as"th. r"r. may be.

. (2) Aay acidress or service may with the approval of the registrar be changed bynotice to the registrar on the form prescibeci

r'

(Issue No. 7) OJ J


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Srerms oF THERrprnrtc or Sours Arnrce - Parewrs, DestcNS N'D opvnlcsrss. 76-84 Trade Marks in South West Africa Act, No. 48 of 1973 ss. 76-84

(3) The address or service urnished by an appiicant in terms of this section shallbe deemed o be tbe domicilium citandi et executandi of such applicant for the purposes ofany proceedings eiating to any entry made in the register n pursuance of the appiication.

77. Circulation of periods of time.-Where any period of time is specified by this Actas runnin

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