No. 4907
Government Gazette 23 March 2012
Act No. 1, 2012
73
INDUSTRIAL PROPERTY ACT, 2012
“International Classification of Goods and Services” means the classification under the
Nice Agreement of 1957, as revised from time to time;
“registered user” means a person registered to use a registered trade mark in terms of
section 170;
“trade mark”, other than a certification or a collective trade mark, means a mark used
or proposed to be used by a person in relation to goods or services for the purpose
of distinguishing those goods or services from the same kind of goods or services
connected in the course of trade with any other person;
“trade mark registration” means the title granted under this Act to protect a trade mark;
“trade name” means the name or designation identifying a business enterprise and
distinguishing that enterprise from other business enterprises.
Exclusive right to mark
132. (1)
The right to a mark, as conferred by this Act, may be acquired
by registration of the mark as a trade mark, a certification trade mark or a collective
trade mark in accordance with the provisions of this Act.
(2)
Nothing in this Act may detract from the right of any person to institute
proceedings and enforce any rights under common law.
Classification of registration
133. (1)
For purposes of registration of a trade mark, the goods or
services for which registration of the mark is requested must be classified in a particular
class or classes as provided for in the International Classification of Goods and Services,
and the application for registration must indicate the applicable class or classes of the
International Classification of Goods and Services or any prescribed classification of
goods or services.
(2)
Any question arising as to the class within which any goods or services
fall under must be determined by the Registrar.
PART 2
REQUIREMENTS FOR REGISTRATION
Distinctiveness
134.
(1)
In order to be registrable, a trade mark must be capable of
distinguishing the goods or services of a person in respect of which it is proposed to be
registered from the goods or services of other persons, either generally or, where the
trade mark is proposed to be registered subject to limitations, in relation to use within
those limitations.
(2)
A trade mark is considered to be capable of distinguishing within the
meaning of subsection (1) if, at the date of application for registration, it is inherently
capable of so distinguishing or if it became capable of distinguishing by reason of prior
use thereof.