Trade Marks
[CAP. 401 23
(3) The provisions of subsections (1) and (2) shall have effect in
the case of an unregistered trade mark used in relation to any goods
as they have effect in the case of a registered. trade mark registered
in respect of any goods, if at the time of the assignment or transmis
sion of the unregistered trade mark it is or was used in the same busi
ness as a registered trade mark and if it is or was assigned or trans
mitted at the same time and to the same person as that registered
trade mark and in respect of goods all of which are goods in relation
to which the unregistered trade mark is or was used in that business
and in respect of which that registered trade mark is or was assigned
or transmitted.
(4) Notwithstanding anything in subsections (1) to (3), a trade
mark shall not be, or. be deemed to have been, assignable or trans
missible in a case in which as a result of an assignment or transmis
sion there would in the circumstances subsist, or have subsisted,
whether under the common law or by registration, exclusive rights in
more than one of the persons concerned to the use, in relation to the
same goods or description of goods, of trade marks nearly resem
bling each other or of identical trade marks, if, having regard to the
similarity of the goods and of the trade marks, the use of the trade
marks in exercise of those rights would be, or have been, likely to
deceive or cause confusion:
Provided that, where a trade mark is, or has been, assigned or
transmitted in such a case as aforesaid, the assignment or transmis
sion shall not be deemed to be, or to have been, invalid under this
subsection if the exclusive rights subsisting as a result thereof in the
persons concerned respectively are, or were, having regard to limita
tions imposed thereon, such as not to be exercisable by two or more
of those persons in relation to goods to be sold or otherwise traded in
within Zambia (otherwise than for export therefrom) or in relation to
goods to be exported to the same market outside Zambia.
(5) The proprietor of a registered trade mark who proposes to
assign it in respect of any goods in respect of which it is registered
may submit to the Registrar in the prescribed manner a statement of
case setting out the circumstances, and the Registrar may issue to
him a certificate stating whether, having regard to the similarity of
the goods 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 a certificate so issued 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, but, as regards a certificate in favour of
validity, only if application for the registration under section thirty of
the title of the person becoming entitled is made within six months
from the date on which the certificate is issued.
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