On June 12, 2006 a new Industrial Property Code in Mozambique came into force. This article focuses on the main changes brought about by the Code in respect of trade marks, and the consequences of counterfeiting and other infringements of various rights.

Trade Marks

The Code distinguishes between “well-known marks” (for the purposes of the Code a well-known mark is defined as being one “ that is known by the interested public as a result of its promotion in Mozambique”) and “marks of high renown” (defined as “a mark that is known by the interested public as a result of its promotion in Mozambique or in the world”). Well known marks and marks of high renown now enjoy considerably strengthened protection. In order to be able to rely on the provisions of the Code, however, the proprietor must apply for the registration of the mark before instituting proceedings.

There are two main changes pertaining to Declarations of Intent to Use (“DIU”), namely:

• The products or services included in the certificate of registration must be listed, as the registration may otherwise lapse partially (in relation to those goods and services that remain unlisted). For international registrations extended to Mozambique, the five-year time limit for filing the DIU must be calculated from the date of application of the international registration. According to the former IP Code, the time period for filing the DIU was calculated from the date of the national registration or extension of the international registration to Mozambique.
  
  
• “Interested parties” may now request an extension of up to sixty days when filing oppositions against trade mark applications. The trade mark applicant is also entitled to request an extension of up to thirty days to file the counter-statement, whereas the revoked Code did not allow for any extensions. On the other hand, the possibility of applying for the cancellation of a trade mark registration at any time has now been removed.

The Code allows for licenses to be registered in Mozambique: a provision that was not incorporated in the revoked Code. Moreover, a licensing agreement must be registered at the Trade Marks Office, in order for it to be effective against third parties.

Infringement and Counterfeiting

Arguably the most important amendments relate to the infringement of industrial property rights and counterfeiting. The provisions regarding both issues have been improved considerably. The Code now defines the roles of the Department of Customs and the General Inspectorate of the Ministry of Industry and Commerce in combating counterfeiting. Furthermore, counterfeited goods seized in terms of the Code will be forfeit to the State and destroyed.

Click here for Mozambique Filing Requirements

Marco van der Merwe
Spoor & Fisher