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Namibia (NA)

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Aug 22, 2018 (Newsletter Issue 14/18)
New Industrial Property Act in Force Now
The Namibian Industrial Property Act, 2012 has come into effect on August 1, 2018. The Act repeals the Patents, Designs, Trade Marks and Copyright Act, 1916, the Patents and Designs Proclamation, 1923 and the Trade Marks in South West Africa Act, 1973. As reported earlier, it provides for the registration and protection and administration of patents, utility model certificates, industrial designs, trademarks, collective marks, certification marks and trade names.

Source: JAH & Co. IP, Qatar


Jun 28, 2018 (Newsletter Issue 12/18)
New Industrial Property Act soon in Force
The Industrial Property Regulations were published in the Namibian Government Gazette on June 1, 2018. By this the new Industrial Property Act No. 1 of 2012 will come into operation on August 1, 2018.
The Act repeals the Trade Marks in South West Africa Act dating back to 1973 and introduces new legislation for patents, industrial designs, trademarks and trade names.

Some of the amendments with regard to trademarks are the following:
- new requirements for assignments and provisions relating to restorations, alterations/amendments, joint ownership, licence contracts and registered users
- possibility to register collective marks,
- non-use cancellation period will shorten from 5 years to 3 years
- trademark infringement proceedings must now be brought before the IP Tribunal
- foreign well-known trademarks will be recognized
- provisions for multi-class applications and applications under the Madrid Protocol and the Banjul Agreement in place

For further information, please check the article of the law firm Adams & Adams here


Source: www.adamsadams.com

Legal basis is the Industrial Property Act 2012 ("the Act") in force since August 1, 2018. The Act repeals the Trade Marks in South West Africa Act No. 48 of 1973.
Namibia is a member of the Madrid Agreement and the Madrid Protocol. Namibia is also member of the Paris Convention, the ARIPO (Banjul Protocol) and the WTO/TRIPS.
The Act specifically provides for the enforcement of applications filed in terms of the Madrid Agreement and the Banjul Agreement (ARIPO).
Trademark protection is obtained by registration. It can also be acquired by sufficient public recognition in terms of common law.
In order to be registrable under the Act, a trade mark must at its time of filing, be either inherently distinctive or capable of distinguishing as a result of use.
The principles of common law apply; i. e. official and judicial decisions are rendered on the basis of prior decisions and judgements on similar cases.
Nice classification, 5th edition - consisting of 42 classes.
The Industrial Property Act 2012 defines a trade mark as a mark which is used or which is proposed to be used by a person in relation to goods or services for the purpose of distinguishing those goods and services from the same kind of goods and services connected in the course of trade with any other person.

Registrable as trademarks are all distinctive signs capable of being represented visually such as a device, name, signature, word, letter, numeral, figurative element, shape, colour or container for goods, or any combination of such signs.

Section 135 of the Act defines the limitation of colours in which a trade mark may be limited in whole or in part to a particular colour or colours. In cases of an application where the said sign is limited to a colour, the registrability of the sign will be decided based on whether the sign which has been limited is capable of distinguishing. In cases the trade mark is registered without limitation of colour, it is deemed to be registered for all colours.

The following trademark types are registrable: trademarks, service marks, collective marks and certification marks.
While the repealed Act allowed for the registration of defensive marks, this is no longer the case, though defensive marks registered under the repealed Act remain in force.
The application is filed at the Industrial Property Office (Business and Intellectual Property Authority - BIPA). BIPA is established as a juristic person in terms of section 3 of the BIPA Act, 2016 (Act No.8 of 2016) and is a Public Enterprise as defined in the Public Enterprises Governance Act, 2006 (Act No. 8 of 2015).
Multi-class applications are possible.
Foreign applicants need a local agent.
A simply signed original Power of Attorney, prescribed in form (Form G2).
Foreign applicants do not need a domestic registration.
The Registrar accords a date to the application, which is the one where the request for registration, the representation of the mark and the prescribed fee were lodged with the Registrar.
Once the date has been accorded, the Registrar will examine the application within a time frame of approximately 12 months and an examination report is then issued.
The application process includes a formal examination, an examination of distinctiveness and a search of prior trademarks.
The trademark application is then published in the Bulletin of industrial property after the issuance of a Preliminary Notice of Acceptance and will be opened to possible oppositions for a period of 2 months before the Industrial Property Tribunal.
If the trade mark application is not opposed, the latter then proceeds to registration and a Registration Certificate is issued.
The processing time from first filing to registration is approx. 3 years.
The first office action is taken after approx. 18 months.
Prior to registration, the trademark application is published in the Bulletin of industrial property, which is usually published monthly.
National:
The opposition period is 2 months from publication in the IP Bulletin.

Details regarding the Opposition Period against designation of IR Mark are available in our publication on this topic here
A trademark registration is valid for an initial period of 10 years from the date of application for registration.
The registration is renewable for periods of 10 years.
The grace period for renewals is 6 months from the expiration date of the trademark.

Further practical details are available in our publication on this topic here
A trademark may be subject to cancellation at the instance of third parties where the trademark was not used during a continuous period of 3 or more years after the date of issue of the registration certificate.

Further practical details are available in our publication on this topic here
The official fee for filing a trademark application is NAD 865 for the first and NAD 712 from the second onward. The publication and the registration fee is NAD 721.

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Practical details on licensing procedures, requirements and effectiveness are available in our publication on this topic here.
Country Index is a free service of SMD Group. We thank the following law firms for their assistance in updating the information provided.

Country Survey
Sep 10, 2018
IPvocate Africa Legal Advisers Ltd., Ebène, Mauritius

Aug 14, 2018
Triebel IP, Pretoria, South Africa  

Nov 11, 2016
IPvocate Africa Legal Advisers Ltd., Ebène, Mauritius

Jul 24, 2013
H.D. Bossau & Co., Windhoek, Namibia

Jun 26, 2013
Spamer Triebel Inc., Cape Town, South Africa

Feb 21, 2012
Spamer Triebel Inc., Cape Town, South Africa



Business and Intellectual Property Authority (BIPA)
Mr. Tileinge S. Andima
188 Sam Nujoma Drive
Windhoek
Namibia

P.O Box 185
Windhoek
Namibia

Tel +264 61 299 4400
Fax +264 61 401 061
Mail andima@bipa.na
www.bipa.na



World Intellectual Property Organization (WIPO)
34, Chemin des Colombettes
1211 Geneva 20
Switzerland
Tel +41 22 33 89 11 1
Fax +41 22 73 35 42 8
www.wipo.int

African Regional Industrial Property Organization (ARIPO)
11 Natal Road
Belgravia
Harare
Zimbawe

P.O. Box 4228

Tel +263 47 94 0 65 68
Fax +263 47 94 07 2 or 3
Mail mail@aripo.org
www.aripo.org