A.53
(c) produces, sells, offers for sale, distributes or stocks labels, containers,
wrapping, packaging or any other material on which the mark is
reproduced;
(d) refills or re-uses for commercial purposes, labels, containers, wrapping,
packaging or any other material bearing the mark;
(e) uses in the course of trade, a sign that is identical or similar to the
mark in respect of any goods or services, where such use may cause
a risk of confusion or association with the registered mark;
(f) uses in the course of trade, a sign identical or similar to the mark in
respect of any goods or services where such use may cause unfair
economic prejudice to the registered owner through dilution of the
distinctive character or advertising value of the mark, or an unfair
advantage being taken from the reputation of the registered mark or
of its holder; or
(g) for non-commercial purposes, uses a sign identical or similar to the
mark, where this may cause dilution of the distinctive character or
advertising value of the mark, or an unfair advantage being taken
of the reputation of the mark or of its holder,
infringes the rights of the owner of the registered mark.
(3) The following acts, in particular, shall constitute use of a mark in
the course of trade —
(a) introducing in the market, selling, offering for sale or distributing goods
or services with the mark or with reference to the mark;
(b) importing, exporting, storing or transporting goods that bear the
mark or refer to the mark;
(c) use of the mark in advertising, publications, commercial documents,
written or oral communication, irrespective of the means of
communication used;
(d) use of the mark on the internet or other electronic communication
media or networks open to the public, where the use is intended for
Botswana or has a commercial market in Botswana;
(e) adoption or use of the mark as part of a domain name or other similar
identification or designation on the internet or other electronic
communication media or networks open to the public; and
(f) the acts mentioned under paragraphs (a) and (b) performed in respect
of labels, tags, packaging or wrapping material and similar products
that reproduce or bear the mark.
(4) The provisions of section 74 (2) (h) shall apply in any action instituted
by the owner of a well known mark against any person in respect of the
unlawful use of that mark.
82. (1) The rights conferred by registration of a mark may not be invoked
to prevent a third party from using, in the course of trade —
(a) his or her name or address, or that of his or her trading establishment;
(b) the mark on goods lawfully bearing that mark after the goods have been
put in the market in Botswana or abroad by the registered holder or by
a person acting with the holder’s consent or having an economic tie to
the holder where the goods and the packaging or wrapping in direct
contact with the goods has not deteriorated or been altered;
Exceptions to
rights
conferred by
registration