(1), the Registrar may have regard to the extent to which—
the mark is inherently apt to distinguish in relation to the goods or
(a)
services in question; and
(b)
by reason of the use of the mark or of any other circumstances, the
mark is in fact apt to distinguish as mentioned in subsection (1) in relation to the
goods or services in question.
43
Right given by registration of certification mark
The rights acquired by registration of a certification mark shall, subject to this Part, be
the same as the rights acquired by registration of a trade mark in Part A of the
Register and, for that purpose, sections eight, ten and eleven shall apply, mutatis
mutandis, in relation to certification marks.
44
Application for registration of certification mark
(1) An application for the registration of a certification mark in Part C of the Register
shall be made to the Registrar in writing in the prescribed manner by the person
proposed to be registered as the proprietor thereof.
(2) An applicant for the registration of a certification mark shall transmit to the
Registrar draft rules for governing the use thereof at such time before the decision of
the Registrar on the application as the Registrar may require in order to enable him to
consider the draft.
(3) Subject to this Act, the Registrar may—
(a)
refuse the application; or
(b)
accept the application and approve the rules, either without
modification and unconditionally or subject to any conditions or limitations or to any
amendments or modifications of the application or of the rules as he may think fit.
(4) Subsections (4) to (8) of section twenty-one shall apply, mutatis mutandis, in
relation to an application in terms of this section as they apply in relation to an
application under subsection (1) of section twenty-one.
(5) In dealing with an application under this section, the Registrar shall have regard to
the like considerations, so far as relevant, as if the application were an application
under section twenty-one and to any other considerations relevant to applications
under this section, including the desirability of securing that a certification mark shall
comprise some indication that it is such a mark, and including also the following
matters—
(a)
whether the applicant is competent to certify the goods or services in
respect of which the mark is to be registered; and
(b)
whether the draft rules are satisfactory; and
(c)
whether in all the circumstances the registration applied for would be
to the advantage of the public.
(6) An application in terms of this section may be made by a Minister on behalf of
any Ministry or department of the State.
45
Advertising of acceptance of application
When an application has been accepted, the applicant shall, as soon as may be after
such acceptance, advertise the application as accepted in the prescribed manner, and
subsections (2) to (11) of section twenty-two shall apply, mutatis mutandis, in
relation to the registration of the certification mark as if the application had been an
application under section twenty-one.
46
Rules governing use of certification mark
(1) There shall be deposited at the Trade Marks Office in respect of every
certification mark registered under this Part rules approved by the Registrar for
governing the use thereof which—
(a)
shall include provisions as to the cases in which the proprietor is to
certify goods or services and to authorize the use of the certification mark; and
(b)
may contain any other provisions that the Registrar may require or
permit to be inserted therein, including provisions conferring a right of appeal to the
Registrar against any refusal of the proprietor to certify goods or services or to