Swaziland Patent Law
* Patents and Designs Proclamation of 1955.
* Patents, Utility Models and Industrial Designs Act No. 6 of 1997.
Note: The 1997 Act on Patents, Utility Models and Designs is not yet in force as it is still awaiting parliamentary approval and implementing regulations. This chapter is therefore based on the provision of the 1955 Proclamation.
Languages: English, Swazi (official languages)
Swaziland is a member of the following international/regional agreements:
* Banjul Protocol (of ARIPO) (since 1997)
* Berne Convention (since 1998)
* Harare Protocol (of ARIPO) (since 1988)
* Lusaka Agreement (ARIPO) (since 1987)
* Madrid Agreement on Marks (since 1998)
* Madrid Protocol on Marks (since 1998)
* Paris Convention (since 1991)
* Patent Cooperation Treaty (since 1994)
* WIPO Convention (since 1988)
* WTO/TRIPS (since 1995)
Swaziland Filing requirements for patent application:
* Power of Attorney (simply signed)
* Certified copy of the granted South African or UK patent
Swaziland Patent Registration Procedure
Applications for registration of granted South African patents are filed with the Registrar’s office.
Applications are subjected to formal examination only.
If not obstacle are rise, the patent application is granted
A patent registered based on a granted South African patent will remain in force for the period for which the South African patent remains in force, subject to the payment of renewal fees, and subject to the South African patent being renewed.
The extension of a UK patent remains in force as long as the UK patent remains in force.
Swaziland is a member of the Paris Convention. However, the current applicable national law (1955 Proclamation) does not provide for the Convention. Accordingly, it is not possible to file a convention application directly in Swaziland, claiming convention priority.
Swaziland Trademark Laws
* Trade Marks Act no 6 of 1981
* Trade Marks Regulations, 1989
* Merchandise Marks Act, 1937
* Merchandise Marks Regulations, 1937
- Swaziland is a member of the Paris Convention, ARIPO (Banjul Protocol), the Madrid Agreement and Protocol, and the WTO/TRIPS.
- Note: Although Swaziland is a member of ARIPO (Banjul Protocol) and the Madrid Agreement and Protocol, Swaziland does not yet have enabling legislation. The relevant provisions to implement these filing systems are, therefore, not yet in place. However, it is possible that ARIPO applications designating Swaziland will be recognised, as would be applications under the Madrid Agreement and/or Protocol designating Swaziland.
The International Classification of Goods and Services (Nice Classification) is applied. Swaziland follows a multi-class filing system, which means a single application may cover more than one class.
The following information and documents are required for trademark in Swaziland:
* Power of attorney (simply signed)
* Certified copy of priority document (if applicable).
Swaziland Trademark Registration Procedure
An application for registration of a trade mark is filed with the Registrar of Trade Marks, which operates under the Ministry responsible for Justice.
An application is examined as to formalities, as to its inherent registrability, and possible conflict with prior registrations or pending applications.
Once accepted, an application is published for opposition purposes for 3 months.
Opposition may be lodged within three (3) months from the date of advertisement of the application in the Official Gazette. The Registrar is empowered to grant extension of this period.
The trademark application is granted if not objection is rised.
A trade mark registration is effective for a period of 10 years from the date of filing of the application and, thereafter, is renewable for like periods, provided the registrant submits a statement confirming use of the trade mark in Swaziland during the preceding three years or that special circumstances prevented use of the trade mark.
The Act provides for the claiming of convention priority in Swaziland. The Swaziland application must be filed within six months of the priority filing date, and a certified copy of the priority application must be filed within three months of the date of filing of the Swaziland application.
Trademark Opposition proceedings in Swaziland
The notice of opposition must be given in writing within three months from the date of the advertisement of the application. The Registrar will send a copy of the notice of opposition to the trade mark applicant. The trade mark applicant must submit to the Registrar a counter-statement of the grounds on which he relies for his application, within two months from receipt of the
notice of opposition. If the applicant fails to submit a counter-statement, the trade mark application shall be deemed to have been abandoned.
The Registrar must provide the opponent with a copy of the counterstatement. Within two months, the opponent must file with the Registrar evidence by way of statutory declaration in support of his opposition. The Registrar must provide the trade mark applicant with a copy of the statutory declaration. If the opponent does not file evidence within the period specified, he shall, unless the Registrar directs otherwise, be deemed to have abandoned his opposition. The applicant must, within two months of receipt of the evidence, file with the Registrar evidence by way of statutory declaration in support of his application. The registrar must send a copy to the opponent.
Within two months of receipt of the copy of the applicant’s evidence, the opponent may file with the Registrar evidence strictly confined to matters in reply. The Registrar must send a copy to the applicant.
Upon completion of the evidence, the Registrar shall give at least two
months’ notice to the parties of the date when he will hear the case. If the Registrar fails to notify the parties of a date for the hearing within three months of the completion of the evidence, the parties may elect to refer the matter to the court for hearing and determination. The Registrar shall then transmit all relevant documents to the court.
Trademark Grounds for opposition in Swaziland
Any person may, within the time prescribed from the date of the
advertisement of an application, give notice to the Registrar of opposition to the registration on the following grounds, namely that:
* the use of the trade mark would be contrary to law or morality or would be likely to deceive or cause confusion as to the nature, geographical or other origin, manufacturing process, characteristics, or suitability for their purpose, of the goods or services concerned
* the trade mark consists solely of the shape, configuration or colour of the goods or the containers thereof
* the trade mark is identical with, or imitates the armorial bearings, flags and other emblems, or official sign or hallmark of any state or of any intergovernmental international organisation, unless authorised by the competent authority
* the trade mark constitutes a reproduction, in whole or in part, an imitation or transcription, liable to create confusion, of a trade mark or business or company name which is well known in Swaziland and belongs to a third party.
In addition to the grounds referred to above, the following also constitute grounds for the purpose of opposition:
* where the trade mark resembles, in such a way as to be likely to deceive or cause confusion, an unregistered trade mark used earlier in Swaziland by a third party in relation to the same or closely related goods or services, provided that an application for the registration of the earlier unregistered trade mark is filed at the same time as the notice of opposition
* where the trade mark resembles, in such a way as to be likely to deceive or cause confusion, a business or company name used in Swaziland by a third party
* where the trade mark is filed by the agent of the representative of a third party who is the proprietor of the trade mark in another country, without the authorisation of such proprietor.
Cancellation for removal of a trade mark in Swaziland
A registered trade mark may be removed from the Register in respect of any of the goods or services in respect of which it is registered, on application by any aggrieved person to the Registrar on the ground that up to one month prior to the filing of the application, a continuous period of three years or longer has elapsed during which the registered proprietor has not used the trade mark in relation to those goods or services.
Failure to use the trade mark shall not be taken into account where:
* it is attributable solely to special circumstances preventing use of the trade mark, and not to any intention to abandon or not to use the trade mark
* the non-use is within five years from the date of the registration.
For the purposes of expungement:
* the use of the whole of a registered trade mark shall be deemed to be equivalent to the use of any part thereof registered in the name of the same proprietor
* where a trade mark has been used in relation to some of the goods or services in respect of which it is registered, such use shall be deemed to be in relation to all closely related goods or services
* where a trade mark is applied to goods or services to be exported from the country, such use shall be deemed to be use of the trade mark in Swaziland
* the use of the trade mark with additions or alterations not substantially affecting its identity, may be accepted as use of the trade mark.
Any person aggrieved by the non-insertion in or omission from the Register of an entry, or by any entry made in the Register without sufficient cause, or by any entry wrongly remaining on the Register, or by any error or defect in any entry in the Register, may apply to the Registrar to make, expunge or vary the entry.
The Registrar may also make such order as he may think fit for expunging or varying the registration of a trade mark on the ground of any contravention of a condition entered on the Register in relation thereto.
Use requirement in Swaziland
A registered trade mark may be removed from the register on the ground that up to one month prior to filing the application for cancellation, the trade mark had not been used for a continuous period of three years or longer.