(b)
goods to be exported to the same market outside Zimbabwe; or
(c)
services to be performed within Zimbabwe.
(5) Where the proprietor of a registered trade mark who proposes to assign that trade
mark in respect of any goods or services in respect of which it is registered submits to
the Registrar in the prescribed manner a statement of case setting out the
circumstances—
(a)
the Registrar may issue to him a certificate stating whether, having
regard to the similarity of the goods or services and of the trade marks referred to in
the case, the proposed assignment of the first-mentioned trade mark would or would
not be invalid under subsection (4); and
(b)
a certificate issued in terms of paragraph (a) shall, subject to the
provisions of this section as to appeal and unless it is shown that the certificate was
obtained by fraud or misrepresentation, be conclusive as to the validity or invalidity
under subsection (4) of the assignment in so far as such validity or invalidity depends
upon the facts set out in the case:
Provided that a certificate in favour of validity shall be so conclusive only if
application under section twenty-nine for the registration of the title of the person
becoming entitled is made within six months from the date on which the certificate is
issued.
(6) Notwithstanding anything in subsections (1) to (3), a trade mark shall not, on or
after the appointed day, be assignable or transmissible in a case in which, as a result
of an assignment or transmission thereof, there would in the circumstances subsist,
whether under the common law or by registration—
(a)
an exclusive right in one of the persons concerned to the use of the
trade mark limited to use in relation to goods to be sold or otherwise traded in or
services to be performed in a place or places in Zimbabwe; and
(b)
an exclusive right in another of those persons to the use of a trade
mark nearly resembling the first-mentioned trade mark or of an identical trade mark
in relation to the same goods or services or description of goods or services limited to
use in relation to goods to be sold or otherwise traded in or services to be performed
in another place or other places in Zimbabwe:
Provided that on application in the prescribed manner by the proprietor of a trade
mark who proposes to assign it or of a person who claims that a trade mark has been
transmitted to him or to a predecessor in title of his on or after the appointed day, the
Registrar, if he is satisfied that in all the circumstances the use of the trade marks in
exercise of the said rights would not be contrary to the public interest, may approve
the assignment or transmission, and an assignment or transmission so approved shall
not be deemed to be, or to have been, invalid under this subsection or under
subsection (4), so, however, that in the case of a registered trade mark this provision
shall not have effect unless application under section twenty-nine for the registration
of the title of the person becoming entitled is made within six months from the date
on which the approval is given or, in the case of a transmission, was made before that
date.
(7) Notwithstanding anything contained in subsections (1) and (2) and subject to
subsections (4) and (6), where a trade mark which is the subject of an application for
registration has, subsequent to the date of the application, been assigned or
transmitted, the Registrar may, on application in the prescribed manner and subject to
such conditions as he may deem necessary, allow, on payment of the prescribed fee,
the person or persons entitled to such trade mark by reason of such assignment or
transmission to be substituted as the applicant or applicants, as the case may be, for
registration of the trade mark.
(8) An appeal shall lie from any decision of the Registrar under this section.
28
Power of registered proprietor to assign and give receipts
Subject to this Act, the person for the time being entered in the Register as proprietor
of a trade mark shall, subject to any rights appearing from the Register to be vested in