Tanzania
Trade and Service Marks Act
Chapter 326
- Published in Tanzania Government Gazette
- Commenced on 1 October 1994
- [This is the version of this document at 31 July 2002.]
- [Note: This legislation has been thoroughly revised and consolidated under the supervision of the Attorney General's Office, in compliance with the Laws Revision Act No. 7 of 1994, the Revised Laws and Annual Revision Act (Chapter 356 (R.L.)), and the Interpretation of Laws and General Clauses Act No. 30 of 1972. This version is up-to-date as at 31st July 2002.]
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 Ordinance1;"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
5. Seal of the Registrar of Trade and Service Marks
6. Register of Trade and Service Marks
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 Act2.11. 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
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
15. Classification of registration
Trade or service Marks shall be registered in respect of particular goods or services in one or more classes of International Classification and any question arising as to which class any goods or services fall in shall be determined by the Registrar, who shall have the final decision.Part IV – Registrability requirements (ss. 16-20)
16. Distinctiveness
17. Effect of limitation or absence of colour
18. Disclaimer
If a trade or service mark contains a matter or matters common to the trade or it is of a non-distinctive character, in determining whether the trade or service mark should be entered or remain in the register, it shall be required as a condition of its being on the Register—19. Prohibition of registration
It is hereby declared that the following cannot be validly registered for the purpose of this Act—20. Prohibition of registration of identical or resembling trade or service mark
Part V – Application procedure, examination and opposition to registration (ss. 21-28)
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 (s. 29)
29. Term of registration and renewal
Part VII – Effect of registration, infringement and unlawful acts (ss. 30-34)
30. Unregistered trade or service mark
No person shall be entitled to institute any proceedings to prevent or to recover damages for, the infringement of an unregistered trade or service mark, but nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods or services of another person, or the remedies in respect of them.31. Exclusive right
Subject to the provisions of this Act and any limitations or conditions entered in the register, the registration of a trade or service mark shall, if valid, give or be deemed to have given to the registered proprietor the exclusive right to the use of a trade or service mark in relation to any goods including sale, importation and offer for sale or importation.32. Infringement
33. Right to continue use
Nothing in this Act shall entitle the proprietor or a registered user of registered trade or service mark to interfere with or restrain the use by any person of a trade or service mark identical with or nearly resembling it, in relation to goods or services, in relation to which that person or a predecessor in title of his bona fide use of name or description has continuously used that trade or service mark from the date anterior—34. Bona fide use of name or description
No registration of a trade or service mark shall interfere with—Part VIII – Removal from, rectification and correction of the register (ss. 35-39)
35. Removal from register on the ground of non-use
36. Rectification
Any person aggrieved by the non insertion in or omission from the Register of any entry, 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 court or at the option of the applicant and subject to the provisions of section 55 of this Act, to the Registrar, and the court or the Registrar shall make an order for making, expunging or varying the entry as shall be deemed fit.37. Fraud in the registration, renewal, assignment, etc.
In case of fraud in the registration, renewal, assignment or transmission of a registered trade or service mark, the Registrar shall himself apply to the court for an order for making, expunging or varying the entry in the Register as may be deemed fit.38. Breach of condition
The Registrar shall, make such order, which he shall deem fit for expunging or varying registration of a trade or service mark on the ground of any contravention of or failure to observe a condition entered on the register in relation to it.39. Correction of the register
Part IX – Assignment and transmission (ss. 40-41)
40. Power of assignment and transmission
41. Associated trade and service marks
Part X – Registered users (ss. 42-47)
42. Registered user
43. Registration of registered users
44. Guarantee of control
45. Approval of licence contracts
The Minister or other competent authority may, by order provide that, on pain of invalidity, licence contracts or certain categories of them, and amendments or renewals of those contracts, shall require the approval of the Registrar taking into account the needs of the country and its economic development.46. Variation and cancellation
Without prejudice to the provisions of section 36, the registration of person as a registered user—47. Prohibition of assignments and sub-licences
A licence shall not be assignable to third parties and the registered user shall not be entitled to grant sub-licences.Part XI – Legal proceedings (ss. 48-55)
48. Appeals
A person may appeal from any decision made by the Registrar subject to the provisions of this Act and its Regulations and that appeal shall be made to the Court.49. Reference to the court by Registrar
When any matter to be decided by the Registrar under this Act appears to him to involve a point of law or to be of unusual importance or complexity, he may, after giving notice to the parties, refer that matter to the court for a decision and and shall after that, in relation to that matter act in accordance with the decision of the court.50. Validity of registration
51. Certification of validity
In any legal proceeding in which the validity of the registration of a registered trade or service mark comes into question and is decided in favour of the proprietor of the trade or service mark, the court shall certify to that effect.52. Registrar's right to appear
53. Court's power to review Registrar's decision
The court, in dealing with any question of the rectification of the register (including all applications under the provisions of section 36), shall have power to review any decision of the Registrar relating to the entry in question or the correction sought to be made.54. Court's discretion in appeals
In any appeal from the decision of the Registrar to the Court, the court shall have and exercise same discretionary powers as under this Act are conferred upon the Registrar.55. Procedure in case of option to apply to court or Registrar
Where under any of the preceding provisions of this Act an applicant has an option to make an application either to the court or to the Registrar and if that application is made to the Registrar, the Registrar may, at any stage of the proceedings, refer the application to the court or may, after hearing the parties, determine the question between them, subject to appeal to the court.Part XII – Offences and penalties (ss. 56-60)
56. Falsification of entries in register
Any person who makes or causes to be made a false entry in the Register, or writing falsely purporting to be a copy of an entry in the register, or who produces or tenders in evidence any such writing, knowing the entry or writing to be false, commits an offence.57. Penalty for falsely representing a trade or service mark as registered
58. Deceiving or influencing the Registrar or an officer
Any person who—59. Penalties
Save where otherwise provided in this Act, any person who commits an offence under this Act shall upon conviction be liable to a fine not exceeding ten thousand shillings, or imprisonment for a period not exceeding three years or to both the fine and imprisonment.60. Regulations
Part XIII – Application of the Act and transitional provisions (ss. 61-64)
61. Application of Act
Save as otherwise provided in this Part, the provisions of this Act shall apply in respect of all trade or service marks, including trade marks registered before the commencement of this Act.62. Prior Part B registration
For the purpose of this Act any trade mark registered under the previous Ordinance in Part B of the then existing Register of the Trade Marks shall not be taken to be valid in all respects subject to the provisions of section 50(2) until a period of seven years has elapsed from the commencement of this Act.63. Reclassification
Trade Marks which have been registered before the commencement of this Act under existing systems of classification under the International Classification shall, upon application for their renewal under section 29, be reclassified into the International Classification system.64. Validity of previous register
Part XIV – Register of Trade and Service Mark Agents (ss. 65-66)
65. Register of Trade and Service Mark Agents
66. Repeal of R.L. Cap. 394
[Repeal of the Trade Marks Ordinance.]History of this document
31 July 2002 this version
Consolidation
01 October 1994
Commenced
Documents citing this one 26
Judgment 21
Legislation 4
1. | Standards Act | 5 citations |
2. | Merchandise Marks Act | 3 citations |
3. | Public Prosecutors (Appointment) Notice, 1943 | |
4. | Trade and Services Marks Regulations, 2000 |
JOT Documents and Guidelines 1
1. | A Compilation of Presentations Made During the Judicial Colloquium on Copyright, Trademarks and Mediation of Ip Disputes for the Judiciary of Tanzania Held From 28th February to 2nd March, 2023 |