07-17-2012 (Newsletter Issue 11/12)
10th Edition of Nice Classification
The Industrial Property Institute of Mozambique announced that Mozambique has adopted the 10th edition of the Nice Classification.
Source: Braz & Associates, Mozambique
05-02-2011 (Newsletter Issue 7/11)
Surcharges for Late Renewal of TMs
The fee for late renewal may be paid within a maximum period of six months after the end of the validity of the registration, subject to a fifty percent surcharge.
The Industrial Property Institute (IPI) in Mozambique has announced that the surcharge penalty for late renewals will become operational with immediate effect. The surcharge payments are to be made within 15 days. Otherwise the registration will be considered to be withdrawn. Notices have been sent to IP agents requesting payment of the surcharge for recently filed renewal applications.
However, a request of revalidation of certificates of registration that have lapsed due to the failure to pay fees on time will be possible.
Source: Braz & Associates, Mozambique
Legal basis is the Industrial Property Code 2006 enacted by Decree No. 4/2006 of April 12, . A new Industrial Property Code came into force in Mozambique on June 12th, 2006, repealing the Code dated 1999.
Mozambique is a member of the Paris Convention (International Union) 1883-1967 (member with effect from July 9, 1998); Madrid Agreement Concerning the International Registration of Marks (Madrid Union) 1891-1967, with invocation of Art. 3 bis (member with effect from October 7, 1998); Convention Establishing the World Intellectual Property Organization (WIPO Convention) 1967 (member with effect from December 23, 1996); Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) 1989 (member with effect from October 7, 1998) and the ARIPO. Trademark protection is obtained by registration. It can also be acquired by sufficient public recognition.
Nice classification, 10th edition
Registrable as a trademark are all distinctive, graphically representable or audible signs such as words, names, acronyms, letters, numbers, devices, the three-dimensional form of a good or its packaging, sound marks and any combination of the mentioned signs. Combinations of colours may be registered, while single colours may be registered only if they are combined with graphics, wording or other elements in a peculiar and distinctive manner.
The following trademark types are registrable: trade marks, service marks, collective marks and certification marks.
The application is filed at the Industrial Property Institute (IPI) in Maputo.
A separate application has to be filed for each class.
Foreign applicants need a local agent.
A power of attorney, signed before a Notary Public, and legalized by the Mozambican Consulate, is necessary.
The application process includes a formal examination, an examination of distinctiveness and a search for prior trademarks.
The processing time from first filing to registration or first office action is approx. 4 months. For Mozambicans or foreigners living in Mozambique, an expedited registration is possible. After
registration, the trademark is published in the bi-monthly “Boletim da Propriedade Industrial”.
The opposition period is 60 days from publication date of the trademark.
Opposition against designation of IR Mark
(The period starts from the national publication date, if not stated differently):
A trademark registration is valid for 10 years from date of application.
The registration is renewable for periods of 10 years.
Every 5 years from the date of registration a declaration of actual use has to be filed, excluding the year of the payment of the renewal fees. Marks for which no declaration is submitted shall not be enforceable against third parties, and the director general of the IPI shall declare the lapse of the registration at the request of any interested party or when third party rights are found to be prejudiced during proceedings for other registrations. If cancellation of the registration has not been requested or declared, the same shall be deemed again in full force provided that the owner thereof files the declaration of intent to use and produces evidence of use of the mark.
Application fees for trademarks are about MZN 2.025.00 (approx. EUR 40.00) per class.
Trademark Licence Agreement
A licence has to be in writing. It is permitted to license the use of unregistered marks. The trademark owner may grant a licence for only some of the goods or services covered by the mark. The sale of a registered trademark does not automatically terminate the licence. For a licence to be cancelled it will be necessary to file a request for recordal of the termination of the licence at the Industrial Property Office and to prove that the sale of the mark implied the cancellation of all licences previously granted. Pursuant to relevant provisions of the Mozambican Industrial Property Code the trademark owner may conclude a licence agreement without prejudice to his right of exerting effective control on the specifications, nature and quality of the relevant goods or services.
The licence must be recorded at the Industrial Property Office to be enforceable against third parties. There is no time frame for a recordal, but the enforceability against third parties commences only from the date of recordal of the licence agreement. There is no prescribed form or content for a licence agreement, but it must comprise the essential elements of the licence (name and address of the licensor and licensee, an indication of the trademark and the class(es) of goods or services, the trade-mark granting date, the duration of the licence). Besides the licence agreement a certificate of the Trade Registry should be filed (either by the licensor or the licensee). A power of attorney is required in favour of the person who files the request for recordal of the licence.
The licence becomes enforceable against third parties after the recordal at the Industrial Property Office. The Industrial Property Office publishes the recordal of the licence in the Official Industrial Property Bulletin.
Such publication mentions
1. The number and the date of the recordal request
2. Information regarding the licensor (name, address, head office)
3. Information regarding the licensee (name, address, head office)
4. The trademark covered by the licence
5. The class(es) of goods or services for which the trademark is registered
6. The registration number of the licensed trademark
There is an evidentiary presumption that use by a recorded licensee is permitted use. The licensee may join the proprietor in infringement proceedings. The owner of the trademark may empower the licensee to act in defence of the trademark, without prejudice to his own rights. It is not required that the licensor is cited as co-defendant in such proceedings. There is no deadline stipulated in the law for the registered user to institute proceedings against the infringement of rights inherent to the licensed trademark. However, this may be provided for in the licence agreement.
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