CHAPTER 326
TRADE AND SERVICE MARKS ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

   Section

Title

PART I
PRELIMINARY PROVISIONS

   1.   Short title.

   2.   Interpretation.

PART II
ADMINISTRATION, THE REGISTER, POWERS
AND FUNCTIONS OF THE REGISTRAR AND
OTHER PROVISIONS RELATING TO THE
COLLECTION OF FEES

   3.   Establishment of the Trade and Service Marks Office.

   4.   Officers of the Trade and Service Marks Office.

   5.   Seal of the Registrar of Trade and Service Marks.

   6.   Register of Trade and Service Marks.

   7.   Evidence.

   8.   Hearing before exercise of discretion.

   9.   Proceedings before a Registrar.

   10.   Oaths and affirmations.

   11.   Power to award costs.

   12.   Fees.

   13.   Trade and Service Marks Journals.

PART III
ACQUISITION OF THE EXCLUSIVE RIGHT
TO A TRADE OR SERVICE MARK AND
CLASSIFICATION

   14.   Acquisition of the exclusive right.

   15.   Classification of registration.

PART IV
REGISTRABILITY REQUIREMENTS

   16.   Distinctiveness.

   17.   Effect of limitation or absence of colour.

   18.   Disclaimer.

   19.   Prohibition of registration.

   20.   Prohibition of registration of identical or resembling trade or service mark.

PART V
APPLICATION PROCEDURE, EXAMINATION
AND OPPOSITION TO REGISTRATION

   21.   Application for registration.

   22.   Priority under the Convention.

   23.   Information as to foreign applications.

   24.   Joint proprietors.

   25.   Registration of parts and of series of trade and service marks

   26.   Examination.

   27.   Opposition.

   28.   Registration.

PART VI
DURATION AND RENEWAL OF REGISTRATION

   29.   Term of registration and renewal.

PART VII
EFFECT OF REGISTRATION, INFRINGEMENT AND UNLAWFUL ACTS

   30.   Unregistered trade or service mark.

   31.   Exclusive right.

   32.   Infringement.

   33.   Right to continue use.

   34.   Bona fide use of name or description.

PART VIII
REMOVAL FROM, RECTIFICATION AND
CORRECTION OF THE REGISTER

   35.   Removal from register on the ground of non-use.

   36.   Rectification.

   37.   Fraud in the registration, renewal, assignment, etc.

   38.   Breach of condition.

   39.   Correction of the register.

PART IX
ASSIGNMENT AND TRANSMISSION

   40.   Power of assignment and transmission.

   41.   Associated trade and service marks.

PART X
REGISTERED USERS

   42.   Registered user.

   43.   Registration of registered users.

   44.   Guarantee of control.

   45.   Approval of licence contracts.

   46.   Variation and cancellation.

   47.   Prohibition of assignments and sub-licences.

PART XI
LEGAL PROCEEDINGS

   48.   Appeals.

   49.   Reference to the court by Registrar.

   50.   Validity of registration.

   51.   Certification of validity.

   52.   Registrar's right to appear.

   53.   Court's power to review Registrar's decision.

   54.   Court's discretion in appeals.

   55.   Procedure in case of option to apply to court or Registrar.

PART XII
OFFENCES AND PENALTIES

   56.   Falsification of entries in register.

   57.   Penalty for falsely representing a trade or service mark as registered.

   58.   Deceiving or influencing the Registrar or an officer.

   59.   Penalties.

   60.   Regulations.

PART XIII
APPLICATION OF THE ACT AND TRANSITIONAL PROVISIONS

   61.   Application of the Act.

   62.   Prior Part B registration

   63.   Reclassification.

   64.   Validity of previous register.

PART XIV
REGISTER OF TRADE AND SERVICE MARK AGENTS

   65.   Register of Trade and Service Mark Agents.

   66.   [Repeal of R.L. Cap. 394.]

CHAPTER 326
THE TRADE AND SERVICE MARKS ACT

An Act to provide for the registration, and protection of trade and service marks and for related matters.

[1st October, 1994]
[G.N. No. 458 of 1994]

Act No. 12 of 1986

PART I
PRELIMINARY PROVISIONS (ss 1-2)

1.   Short title

   This Act may be cited as the Trade and Service Marks Act.

2.   Interpretation

   In this Act, unless the context requires otherwise–

   "assignment" means transfer by act of the parties concerned;

   "Convention" means the Paris Convention of 20th March, 1983 for the Protection of Industrial property and any of its revisions to which Tanzania is or may become party in the future;

   "Court" means the High Court;

   "International Classification" means the classification according to the Nice Agreement concerning the International Classification of Goods and Services for the purpose of the Registration of Marks, of June 15, 1957, as last revised;

   "limitations" means any limitations of the exclusive right to use of a trade mark given by registration of a person as its proprietor, including limitations of that right as to the mode of use, as to use in relation to goods or services to be sold or otherwise traded in any place in Tanzania or as to use in relation to goods or services to be exported to any marked outside Tanzania;

   "Minister" means the Minister responsible for the Trade and Service Marks Office;

   "pending trade or service mark" means a trade or service mark which is the subject of an application for registration;

   "previous Ordinance" means the Trade Marks Ordinance *;

   "register" means the Register of Trade and Service Marks kept under the provisions of this Act;

   "registered trade or service mark" means a trade or service mark which is actually on the register;

   "registered user" means a person who is registered as such under section 42;

   "Registrar" means the Registrar of Trade and Service Marks appointed under section 4;

   "Regulations" means the regulations made under section 60 of the Act;

   "trade or service mark" means any visible sign used or proposed to be used upon, in connection with or in relation to goods or services for the purpose of distinguishing in the course of trade or business the goods or services of a person from those of another;

   "Trade and Service Marks Office" means the Trade and Service Marks Office established under section 3;

   "transmission" means transfer by operation of law, demolition on the personal representatives of a deceased person and any other mode of transfer not being an assignment;

   "use of a trade or service mark" means subject to the provisions of sections 31 and 32 use in relation to goods or services in a printed or other visible representation;

   "visible sign" means any sign which is capable of graphic reproduction, including a word, name, brand, device, heading, label, ticket, signature, letter, number, relief, stamp, seal, vignette, emblem or any combination of them.

PART II
ADMINISTRATION, THE REGISTER, POWERS
AND FUNCTIONS OF THE REGISTRAR
AND OTHER PROVISIONS RELATING
TO THE COLLECTION OF FEES (ss 3-13)

3.   Establishment of the Trade and Service Marks Office

   There is hereby established an Office which shall be known as the Trade and Service Marks Office.

4.   Officers of the Trade and Service Marks office

   (1) The President shall by Government Notice published in the Gazette appoint a Registrar of Trade and Service Marks who shall perform the duties and exercise powers imposed or conferred by this Act and shall be responsible for its administration.

   (2) The Minister shall appoint one or more Deputy Registrars of Trade and Service Marks who shall, subject to the directions of the Registrar have all the powers and privileges conferred by this Act on the Registrar.

   (3) The Minister shall appoint such examiners and other officers as may be necessary for carrying out the provisions of this Act.

5.   Seal of the Registrar of Trade and Service Marks

   (1) The Registrar shall have a seal of any device which may be approved by the Minister provided always that until the seal has been obtained a stamp in the form which the Minister may approve shall be used in lieu of it.

   (2) The Seal shall be used in the manner as shall be directed by the Registrar.

   (3) Impressions of the seal or stamp shall be judicially noticed and admitted in evidence.

6.   Register of Trade and Service Marks

   (1) The Registrar shall maintain a register in which he shall record all trade and service marks granted under this Act and any other matters as may be prescribed.

   (2) Any person may on request consult the Trade and Service Marks Register and may take extracts or any information from it on payment of a prescribed fee.

7.   Evidence

   Entries made in the Trade and Service Marks Register in pursuance of this Act may be proved by any documents and copies certified in the manner which may be directed by the Registrar, and the copies of the entries shall be evidence of any matter required by this Act.

8.   Hearing before exercise of discretion

   Without prejudice to any law the Registrar shall give any party to a proceeding before him an opportunity of being heard before exercising adversely to that party any discretion vested in the Registrar by this Act or regulations.

9.   Proceedings before a Registrar

   Subject to the provisions of section 10 in any other proceedings before the Registrar under this Act, evidence shall be given by affidavit and the Registrar may, if he deems fit take oral evidence on oath in lieu of or in addition to any other evidence and shall cross-examine any witness on such evidence.

10.   Oaths and affirmations

   Any person who is required under the provisions of this Act to take any oath or swear to an affidavit shall, in lieu of it, make Conditions of Oaths and affirmation conform with the provisions of a "Statutory Declaration" as provided for in the Interpretation of Laws Act *.

11.   Power to award costs

   In all proceedings before the Registrar, under this Act, the Registrar shall award to any party any costs which he may consider reasonable and may direct how and by which parties they are to be paid, and that order may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.

12.   Fees

   (1) Where under the provisions of this Act–

   (a)   a fee is payable in respect of the performance of any act by the Registrar, the Registrar shall not perform that act until the fee has been paid; or

   (b)   a fee is payable in respect of doing of any act by any person other than the Registrar, the act shall be deemed not to have been lodged until the fee has been paid; or

   (c)   a fee is payable in respect of the lodging of a document, the document shall be deemed not to have been lodged until the fee has been paid.

   (2) All fees prescribed under this section shall be collected and accounted for in any manner which the Minister with the approval of the Minister for Finance shall direct.

13.   Trade and Service Marks Journals

   The Registrar shall publish a journal to be referred to as the Trade and Service Marks Journal, in which particulars of applications for the registration of trade marks, reports of cases, any other matters arising under the provisions of this Act and any other matters as he may deem fit.

PART III
ACQUISITION OF THE EXCLUSIVE RIGHT
TO A TRADE OR SERVICE MARK
AND CLASSIFICATION (ss 14-15)

14.   Acquisition of the exclusive right

   (1) The exclusive right to the use of a trade or service mark as defined in section 32 shall be acquired by registration in accordance with the provisions of this Act.

   (2) Registration of a trade or service mark shall not be considered validly granted until the application has fulfilled the conditions for registration.

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