A.54
Proceedings for
infringement of
mark
(c) bona fide indications or information on characteristics of the
goods or services produced or marketed by that person, in
particular, those referring to quantity, quality, use, geographical origin
or price of the goods or services;
(d) a geographical indication registered under this Act;
(e) bona fide indications or information on the availability, use,
application or compatibility of the goods or services produced or
distributed by that person, in particular in relation to spare parts,
replacements or accessories if the registered mark is used in good
faith to perform legitimate industrial or commercial activities, and
is not likely to cause confusion or association in respect of the
commercial source of the goods or services.
(2) For the purposes of subsection (1) (b), an economic tie shall exist
where one of two persons or more involved may exercise directly or
indirectly on the other, a decisive influence with respect to the use of the
mark, or where a third party may exercise such an influence on both persons.
(3) Where a mark consists of a sign composed of several elements,
protection shall not extend to the elements that are merely descriptive or are
of common or necessary use for the purposes of trade.
83. (1) The owner of a mark shall, in addition to any other rights, remedies
or actions available to him or her, have the right to institute court proceedings
against any person who infringes the mark by using that mark without his or
her authorisation or by performing acts which make it likely that infringement
will occur.
(2) The right conferred under this section shall extend to the use of a
sign similar to the registered mark in relation to goods and services
similar to those for which the mark has been registered, where confusion
may arise in the public.
(3) The right conferred under this section shall extend to the use of a
sign which constitutes a reproduction, an imitation or a translation of a
registered mark which is well known in Botswana in relation to goods
or services which are not similar to those in respect of which a mark is
registered where —
(a) use of the mark in relation to those goods or services would indicate
a connection between those goods or services and the owner of the
registered mark; and
(b) the interests of the owner of the registered mark are likely to be
prejudiced by such use.
(4) A plaintiff in proceedings for infringement shall be entitled to
relief by way of an interdict, delivery up or destruction of any infringing
product, article or product of which the infringing product forms an
inseparable part, damages or an account of the profits derived from the
infringement.
(5) The court shall not, in awarding damages under this section, also
order, in respect of the same infringement, that the plaintiff be given an
account of the profits derived by him or her from the infringement.