Madagascar Patent Law
* Ordinance No. 89-019 of 1989, Establishing Arrangements for the Protection of Industrial Property in Madagascar.
* Decree No. 92-993 of 1992, Implementing Ordinance no 89-019 of 1989, as amended by Decree no 95-057 of 1995.
- Madagascar is a member of the Paris Convention, the PCT and the WTO/TRIPS.
Filing requirements for patent registration in Madagascar:
* Full particulars of the applicant and inventor.
* Power of Attorney (notarised).
* Assignment from the inventors, or a statement by the applicant justifying its right to the invention (if applicable).
* Declaration of priority rights.
* Specification (including claims, drawings and abstract), in French
* Certified copy of the priority document (if applicable), with a verified French.
Madagascar Patent Registration Procedure
The Non-convention, convention and PCT national phase applications are filed with the office of the Registrar of Patents.
Formal examination of an application takes place to determine whether or not all the formal (ie documentary) requirements have been satisfied. Once all the documentary requirements have been satisfied, the application is subjected to a patentability examination.
The Ordinance does not provide for opposition to the grant of a patent by third parties.
After examination, if the Registrar is satisfied that the necessary requirements have been met, he shall grant the patent. According to the Ordinance, granted patents are published in the Official Gazette.
If not obstacles are found, the patent is registered.
The timeframe from filing to registration is from 24 to 42 months, approximately.
The duration of a patent is 15 years, extendible for a further five years if the national interest so demands and the invention is worked in a serious and satisfactory manner.
Maintenance fees are payable annually from the filing date for pending applications and granted patents. A six months grace period is provided, subject to payment of a penalty.
An applicant who has filed a patent application in a convention country is entitled to claim priority from such earlier application, provided the application in Madagascar is filed within 12 months from the earlier application.
A certified copy of the priority application has to be filed within six months of the filing date or the claim to priority will be lost.
The following, even if they are inventions, are not patentable:
* inventions contrary to public policy or morality.
* plant or animal varieties or essentially biological processes for the production of plants or animals.
* methods, systems, schemes, discoveries and scientific theories and abstractions of pure form that do not solve a material problem or do not provide a tangible technical solution.
* pharmaceutical, veterinary, cosmetic and food products
* inventions excluded by decree, where required by vital national interests of education, public health, national defence, or national economy.
Trademark Law Madagascar
Legal basis is the law of Ordinance No. 89-019 of 1989 and Decree no 92-993 of 1992, implementing Ordinance No. 89-019, as amended by Decree no 95-057 of 1995.
Madagascar is a member of the Madrid Protocol (since 2008), Paris Convention (since 1963) and WTO/TRIPS (since 1995).
Trademark protection is obtained by registration.
It cannot be acquired by sufficient public recognition.
*. In general, Madagascar follows a first-to-file system in respect of trade marks.
Nice classification, 10th edition. Multiple-class applications are possible.
* A Notarised Power of Attorney is sufficient which needs to be in French or in English.
* Copy of the priority document (if applicable) in French or in English or in any other language with French translation.
Madagascar Trademark Registration Procedure
* The application is filed at the Malagasy Office of Industrial Property (“OMAPI”). The application needs to be in French or Malagasy with a French translation.
* The application process includes a formal examination, an examination of distinctiveness and compliance with public order, morals and ethics, and a search for prior trademarks.
Signs not deemed distinctive in the examination cannot be registered if distinctiveness has been acquired by use.
* If the application meets the formal and substantive requirements for registration, it shall proceed to registration.
* Notification of grant will be published in the Official Gazette of Industrial Property.
National Opposition Period
It is not possible to oppose a trademark application. Legal action after registration is possible.
The approximate time frame for completing the registration process of a trademark at OMAPI is 11-15 months from the application filing date.
Protection begins with the date of application. A trademark registration is valid for 10 years from date of application. The registration is renewable for like periods subject to payment of the prescribed fee. Late renewal is possible within a grace period of six months, subject to payment of a penalty fee.
Madagascar is a member of the Paris Convention. An applicant who has applied for a trade mark in another convention country is entitled to claim a priority right to be accorded the same date as the first-filed application, provided that the application is filed in Madagascar within six months.
A trade mark registration shall lapse if the registered mark is not used within a period of three years from the date of registration, unless the owner of the mark is able to produce legitimate reasons for his failure to use the mark.
Cancellation for removal of a trade mark
As Madagascar follows a first-to-file system in respect of trademarks. This means that the first person to file for its registration, is the owner of a mark.
However, the competent court may, in certain situations and at the request of a competent authority or of any person proving a legitimate interest, and after having given the owner an opportunity to be heard, declare null and void the registration of a mark with effect from the date of registration. If, however, a registered mark has been used publicly and continuously by the owner of the registration in Madagascar for at least three years without having given rise to legal action that has been upheld, the mark shall belong to the owner of the registration without possible opposition on the grounds of prior use by another person, unless it is proved that at the time of filing the applicant could not have been unaware of such other person’s mark.
Grounds for cancellation
The grounds for cancellation include:
* that the mark does not fulfil the definition of a trade mark, ie does not consist of a visible sign intended and capable of distinguishing the goods or services of one enterprise from those of other enterprises
* that use of the sign is contrary to public policy or morality and, in particular, is liable to deceive trade circles or the public as to the nature, the source, the manufacturing process, the characteristics or the suitability for their purpose, of the goods or services concerned
* that the sign reproduces or imitates the armorial bearings, flags and other emblems, official signs or hallmarks adopted by a state, or initials, names or abbreviations of names of any state or of any intergovernmental international organisation, without the authorisation of such a state or organisation
* that the sign is incapable of distinguishing , particularly where:
- the sign consists of the shape of the goods concerned or of their packaging and such form is imposed by the inherent nature or function of the goods or of their packaging
- the sign consists exclusively of an indication which may serve, in the course of trade, to designate the kind, quantity , quality, intended purpose, value, time of production or of supply or other characteristics of the goods or services
- the sign consists exclusively of an indication which has become, in the current language or in the bona fide and established practices of local trade, a customary designation of the goods or services concerned
* that the sign consists of a geographical indication liable to mislead as to the geographical origin of the goods and services concerned or which, if it were registered as a mark, would unduly interfere with use of the geographical indication by other persons that are entitled to use such indication
* that the sign conflicts with a prior right:
- where a mark belonging to a party or a collective mark is the subject of a registration or of a pending application and another party files an application for registration as a mark, for identical or similar goods or services, of a sign that is identical to the earlier mark, or similar to the extent of probable confusion, the latter sign is deemed to conflict with a prior right
- where the earlier mark has ceased to be registered one year at the most before the date on which the application is filed by the later party, or where the collective mark has ceased to be registered five years at most before such date.
* Where the grounds of nullity apply to only one class of goods or services, or to certain goods within a certain class, nullity of the registration shall be declared for that part of the goods or services only. In addition, the property right in a mark shall lapse for failure to use the mark within a period of three years as from the date of registration, unless the owner of the mark is able to produce legitimate reasons for his failure to use the mark.
*Furthermore, any person who has allowed his mark to fall into the public domain or become everyday language without having taken measures to prevent abuse, shall forego his rights in that mark.