confusion, where that mark is used in relation to the same or similar goods or services as those in respect
of which the trade mark is registered.”;
(b) by the insertion after subsection (5) of the following subsection—
“(6) Where a mark that is identical to a registered trade mark is used as a trade mark in respect of
the same goods or services as those in respect of which the registered mark is registered, it shall be
presumed for the purposes of this section, unless the contrary is proved, that such use is likely to deceive
or cause confusion.”.
New Sections Inserted in Cap. 26:04
6. The principal Act is amended by the insertion after section 9 of the following sections—
“Entitlement to and Nature of Civil Remedies for Infringement
9A.—(1) Subject to this Act, an infringement of a registered trade mark shall be actionable
at the suit of the proprietor and any registered user of the mark.
(2) Subject to this Act, in any proceedings for an infringement of a registered trade mark there
shall be available to the plaintiff all such remedies by way of damages, interdict, attachment, the
rendering of account, the delivery of improperly marked goods or of articles used or intended to be used
for marking goods or otherwise, as are available in respect of the infringement of any other proprietary
right.
Forum in which Remedies for Infringement May be Sought
9B. Proceedings in respect of an infringement of a registered trade mark may be
instituted—
(a) in the Tribunal; or
(b) in the High Court; or
(c) subject to the jurisdictional limits provided for in the Magistrates Court Act [Chapter
7:10], in a magistrates court:
Provided that the Tribunal shall not have jurisdiction to entertain criminal proceedings.
Damages in Infringement Proceedings
9C.—(1) Damages for an infringement of a registered trade mark may, at the option of the person
seeking them, be calculated on the basis of the amount that a registered user would reasonably have been
expected to pay under the circumstances for his use of the trade mark concerned:
Provided that, if the person seeking damages intends to exercise this option, he shall give notice
of his intention, in writing, to any registered user of the trade mark concerned.
(2) In determining the amount of damages in proceedings for an infringement of a registered trade mark,
the Tribunal or court shall take the following factors into account, in addition to all other material
considerations—
(a) the extent and nature of the infringement; and
(b) the amount which could be payable to the proprietor in respect of the use of the trade mark by some
other person.
(3) Where in proceedings for an infringement of a registered trade mark it is established that an
infringement was committed and the Tribunal or court, having regard to—
(a) the flagrancy of the infringement; and