As reported in our Information Letter N.S. 156, a new Trade Marks Act was passed in Swaziland, and this will now enter into effect on July 1, 1994. The principal provisions of the Act, which replaces the previous system of depositing United Kingdom or South African registrations, include the following:
1) A trademark is defined as 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. Marks may be registered in any color or
combination of colors.
2) Marks may not be registered if they, inter alia, constitute reproductions, in whole or in part, imitations, translations or transcriptions, liable to create confusion, of trademarks or business or company names which are well-known in Swaziland and belong to third parties.
3) Applications may be filed for trademarks and service marks, in accordance with the International Classification of Goods and Services, and priority may be claimed under the Paris Convention. A single application may cover several classes.
4) Applications will be examined for inherent registrability and for prior conflicting marks.
5) The Register is not divided into Parts A and B, as previously contemplated.
6) Applications which are accepted will be published for opposition in the Official Gazette and may be opposed within 3 months of publication on the grounds of inherent unregistrability, prior conflicting marks or company names. An opposition based on an unregistered mark, which has been used prior to the date of the conflicting application, must be filed simultaneously with an application to register the unregistered mark.
7) Registrations are granted for a period of 10 years from the filing date of the application and may be renewed for further periods of 10 years, provided that the registrant submits a statement that there has been bona fide use of the mark during the 3-year period prior to the renewal due date, or that non-use is justified by special circumstances.
8) The exclusive right to a trademark is acquired by registration and trademark registration owners may bring actions for trademark infringement. However, a registrant may not prevent the marketing of products which have been legally introduced for sale directly or by consent into Swaziland, unless the condition of the products has been subsequently modified or impaired.
9) Registered marks which have not been used for any period of 3 years or more, without justification, may be vulnerable to cancellation by a third party; however, such an action may not be filed within 5 years from the date of the registration.
Subsequent use will cure the defect, unless such use is resumed within one month of the date on which the cancellation action was filed. Use is deemed to include application of the mark to goods or services to be exported from Swaziland.
10) Provision is made for the recordal of registered users. Unless their agreement provides otherwise, registered users may take action for infringement, if upon request the proprietor refuses or neglects to do so, but they may not assign or sub-license their rights to use a registered mark.
11) The validity and duration of trademark registrations which are in effect on July 1, 1994 are governed by the former law. However, applications that are pending on July 1, 1994 will be governed by the provisions of the new Act.
2) Marks may not be registered if they, inter alia, constitute reproductions, in whole or in part, imitations, translations or transcriptions, liable to create confusion, of trademarks or business or company names which are well-known in Swaziland and belong to third parties.
3) Applications may be filed for trademarks and service marks, in accordance with the International Classification of Goods and Services, and priority may be claimed under the Paris Convention. A single application may cover several classes.
4) Applications will be examined for inherent registrability and for prior conflicting marks.
5) The Register is not divided into Parts A and B, as previously contemplated.
6) Applications which are accepted will be published for opposition in the Official Gazette and may be opposed within 3 months of publication on the grounds of inherent unregistrability, prior conflicting marks or company names. An opposition based on an unregistered mark, which has been used prior to the date of the conflicting application, must be filed simultaneously with an application to register the unregistered mark.
7) Registrations are granted for a period of 10 years from the filing date of the application and may be renewed for further periods of 10 years, provided that the registrant submits a statement that there has been bona fide use of the mark during the 3-year period prior to the renewal due date, or that non-use is justified by special circumstances.
8) The exclusive right to a trademark is acquired by registration and trademark registration owners may bring actions for trademark infringement. However, a registrant may not prevent the marketing of products which have been legally introduced for sale directly or by consent into Swaziland, unless the condition of the products has been subsequently modified or impaired.
9) Registered marks which have not been used for any period of 3 years or more, without justification, may be vulnerable to cancellation by a third party; however, such an action may not be filed within 5 years from the date of the registration.
Subsequent use will cure the defect, unless such use is resumed within one month of the date on which the cancellation action was filed. Use is deemed to include application of the mark to goods or services to be exported from Swaziland.
10) Provision is made for the recordal of registered users. Unless their agreement provides otherwise, registered users may take action for infringement, if upon request the proprietor refuses or neglects to do so, but they may not assign or sub-license their rights to use a registered mark.
11) The validity and duration of trademark registrations which are in effect on July 1, 1994 are governed by the former law. However, applications that are pending on July 1, 1994 will be governed by the provisions of the new Act.
June 1994 Index