96
Government Gazette 23 March 2012
Act No. 1, 2012
No. 4907
INDUSTRIAL PROPERTY ACT, 2012
which the trade mark is registered, that in such use there exists the
likelihood of deception or confusion;
(c)
the unauthorised use in the course of trade in relation to any goods or
services of a mark which is identical or similar to a registered trade
mark registered, if such trade mark is well known in Namibia and the
use of the said mark would be likely to take unfair advantage of, or
be prejudicial or detrimental to, the distinctive character or the repute
of the registered trade mark, despite the absence of confusion or
deception.
Infringement proceedings and remedies
183. (1)
Where a trade mark registered in terms of this Act has been
infringed and legal proceedings are instituted by the registered owner or a licensee as
contemplated in section 152, the Tribunal may grant the registered owner or the licensee
the following relief, namely –
(a)
an interdict;
(b)
an order –
(i)
for the removal of the infringing mark from all infringing
goods or materials; and
(ii)
where the infringing mark is inseparable or incapable of being
removed, an order that all such goods or materials be delivered
up to the claimant;
(c)
damages, including those arising in terms of section 147(8);
(d)
in lieu of damages, at the option of the claimant, a reasonable royalty
which would have been payable by a licensee for the use of the trade
mark concerned, including any use which took place after advertisement
of the acceptance of an application for registration and which, if taking
place after registration, would amount to infringement of the rights
acquired by registration.
(2)
For the purposes of determining the amount of any damages or
reasonable royalty to be awarded under this section, the Tribunal may direct an enquiry
to be held and may determine such procedures for conducting such enquiry as it may
deem fit.
(3)
Before a person institutes proceedings in terms of this section in respect
of the infringement of a trade mark registration he or she must give notice in writing of
the intention to do so to the registered owner, if applicable, and to every other registered
owner or registered user or licensee concerned whose name is recorded in the register
in respect of that registration, and the registered owner or any such other person is
entitled to intervene in such proceedings and to recover any damages he or she may
have suffered as a result of the infringement.