LAWS OF MALAWI
Trade marks
(4)
Cap. 49:01
Notwithstanding anything in subsections (1) to (3) inclusive, a trade
mark shall not be, or be deemed to have been, assignable or
transmissible in a case in which as a result of an assignment or
transmission 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
resembling 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 transmission 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 limitations 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 Malawi (otherwise than for export therefrom) or in relation to goods
to be exported to the same market outside Malawi.
(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 30 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) inclusive, a trade
mark shall not, on or after the commencement of this Act, 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, an
exclusive right in one of the persons concerned to the use of the trade
mark limited to use of the trade mark limited to use in relation to
goods to be sold or otherwise traded in in a place or places in Malawi
and 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 description of
goods limited to use in relation to goods to be sold or otherwise traded