No. 4907
Government Gazette 23 March 2012
Act No. 1, 2012
75
INDUSTRIAL PROPERTY ACT, 2012
(g)
its use would be likely to cause confusion or would offend any class of
person or would be contrary to law;
(h)
the applicant for registration has no bona fide claim to proprietorship or
no bona fide intention of using it as a trade mark; or
(i)
the application for registration was mala fide.
Prohibition of registration: third party rights
138.
(1)
(a)
subject to subsection (2), it is identical with or confusingly similar
to, or it or an essential element thereof constitutes a reproduction,
imitation or a translation of, a trade mark which is entitled to protection
under the Paris Convention as a well-known trade mark and which is
well known in Namibia, if the use of the mark is to be in relation to the
identical or similar goods or services in respect of which the trade mark
is well known, and such use of the mark is likely to cause deception or
confusion;
(b)
it is identical with or confusingly similar to, or it or an essential element
thereof constitutes a reproduction, imitation or translation of a trade
mark which is well known and registered in Namibia for goods or
services which are not identical or similar to those in respect of which
registration is applied for, if the use of the mark would be likely to take
unfair advantage of, or be detrimental to the distinctive character or the
repute of the well-known mark or the interests of the owner of the wellknown trade mark are likely to be prejudiced by such use, despite the
absence of deception or confusion; or
(c)
it is identical to a registered trade mark or to a trade mark in an
application belonging to a different proprietor with an earlier filing or
priority date, in respect of the same goods or services or closely related
goods or services, or if it so nearly resembles such a trade mark as to be
likely to deceive or cause confusion.
A mark is not registrable and cannot validly be registered if –
(2)
Subsection (1)(a) does not apply in relation to any trade mark
application or registration having a filing date or priority date prior to the date on which
this Act comes into force or to the date on which the well-known trade mark becomes
entitled, in Namibia, to protection under the Paris Convention, whichever date is the
later date.
PART 3
PROCEDURE FOR REGISTRATION
Who may apply for registration
139. Any person who has a bona fide claim to proprietorship of the mark and
bona fide uses or intends to use the mark as a trade mark may apply for the registration
of the mark as a trade mark.