A.56
Banjul
Protocol on
marks
Collective
marks
Invalidation
of registration
of collective
mark
Licensing of
marks and
collective
marks
89. A mark in respect of which Botswana is a designated State,
registered by ARIPO by virtue of the Banjul Protocol, shall have the
same effect and enjoy the same protection in Botswana as a mark
registered under this Act unless the Registrar communicates to ARIPO,
in respect of the application therefor, a decision, in accordance with the
provisions of that Protocol, that if a mark is registered by ARIPO, that
mark shall have no effect in Botswana.
90. (1) Subject to subsections (2) and (3), sections 74 to 87 of this
Act shall apply to collective marks, except that references therein to a
mark shall be read as being references to a collective mark.
(2) An application for the registration of a collective mark shall
designate the mark as a collective mark and shall be accompanied by a
copy of the rules governing the use of the collective mark.
(3) For purposes of subsection (2), “rules” means the rules made by
the person under whose control the collective mark may be used.
(4) The registered owner of a collective mark shall notify the
Registrar, in writing, of any changes made in respect of the rules referred
to in subsection (2).
91. (1) In addition to the grounds set out in section 86 (1), the
Registrar shall invalidate the registration of a collective mark if the person
requesting the invalidation proves that only the registered owner uses
the mark, or that he or she uses or permits its use in contravention of the
rules referred to in section 90 (2), or that he or she uses or permits its
use in a manner which is liable to deceive those in the trade or the public
as to the origin or any other common characteristics of the goods or
services concerned.
(2) An application for the invalidation of a collective mark shall be served
on the owner of the mark in the manner and within the time prescribed.
92. (1) Any licence contract made in relation to a mark shall provide
for the effective control by the licensor of the quality of the goods or services
of the licensee in connection with which the mark is used.
(2) If the licence contract does not provide for quality control referred to
in subsection (1), or if the quality control is not effectively carried out, the
licence contract may be declared invalid or non-enforceable by the Court.
(3) The registration of a collective mark, or an application therefor, may
not be the subject of a licence contract.
(4) A licence holder shall apply, in the prescribed manner and subject to
the payment of the prescribed fee, to the Registrar to record, on the register,
details about the licence contract made under subsection (1) and for such
purpose the Registrar shall not require submission of the licence contract or
a translation thereof, nor any indication of the financial terms of the contract.
(5) A single request shall be sufficient to record a licence in respect of
more than one registered mark if the registration numbers of all registrations
concerned are indicated in the request, the holder of the marks and the
licensee are the same for all registrations, and the request indicates, as
prescribed, the scope of the licence with respect to all the registrations.