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27. For every entry of a transfer agreement licence or extension of
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* PROCLAMATION

By His Excellency the Administrator of the Transvaal.
(DATED 10TH APRIL, 1902.)

To Amend the Law relating to the Registration of
Trade Marks in this Colony.

W
THEREAS it is expedient to amend the law relating to
the registration of Trade Marks in this Colony:
Now therefore, by virtue of the authority in me vested,
I do hereby declare, proclaim, and make known as follows:

1. Law No. 6 of 1892 and so much of any other law as may be repugnant to or inconsistent with the provisions of this Proclamation are hereby repealed; but no such repeal shall affect anything duly done, or any right or privilege acquired, or any liability, penalty, or forfeiture incurred in respect of any such laws.

2. (1) The Commissioner of Patents, who shall also be the Registrar of Trade Marks and is hereinafter referred to as the Registrar, may on application by, or on behalf of any person claiming to be the proprietor of a trade mark, register the trade mark.

(2) The application must be made in the prescribed form and accompanied by the prescribed number of representations of the trade mark and must state the particular goods or classes of goods in connection with which the applicant desires the trade mark to be registered.

(3) The Registrar may, if he thinks fit, refuse to register a trade mark, but any such refusal shall be subject to appeal to the Court, which shall, if required, hear the applicant and the Registrar and may make an order determining whether, and subject to what conditions, if any, registration is to be permitted.

(4) When an applicant for the registration of a trade mark is out of this Colony at the time of making the application, he shall give the Registrar an address for service in this. Colony, and if he fails to do so the application shall not be proceeded with until the address has been given.

(5) Where registration of a trade mark has not been or shall not be completed within twelve months from the date of the application by reason of default on the part of the applicant, the application shall be deemed to be abandoned.

See also Merchandise Marks Ordinance (No. 47 of 1903.)

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Proc. No 23 of 1902.

Definition of trade

mark.

How to be regis tered.

Advertisement of application.

3. For the purposes of this Proclamation a trade mark must consist of or contain at least one of the following essential particulars :

(a) A name of an individual or firm printed, impressed, or
woven in some particular and distinctive manner; or
(b) A written signature or copy of a written signature of
the individual or firm applying for registration
thereof as a trade mark; or

(e) A distinctive device, mark, brand, heading, label or ticket; or

() An invented word or invented words; or

(e) A word or words having no reference to the character or quality of the goods and not being a geographical

name.

And there may be added to any one or more of these particulars any letters, words or figures, or combination of letters, words or figures, or any of them; but the applicant for registration of any such additional matter must state in his application the essential particulars of the trade mark, and must disclaim in his application any right to the exclusive use of the added matter, and a copy of the statement and disclaimer shall be entered on the register. Provided as follows:

(1) A person need not under this section disclaim his own

name or the foreign equivalent thereof, or his place of business, but no entry of any such name shall affect the right of any owner of the same name to use that name or the foreign equivalent thereof.

(2) Any special and distinctive word or words, letter, figure, or combination of letters or figures, or of letters and figures used as a trade mark before Law No. 6 of 1892 came into operation, may be registered as such under this Proclamation.

4. A trade mark must be registered as belonging to particular goods or description of goods and when registered shall be transferred and transmitted only in connection with the goodwill of the business concerned in such particular goods or description of goods and shall be determinable with such goodwill but subject as aforesaid application for registration of a trade mark shall be deemed to be equivalent to public use of such mark.

Trade marks may

colour.

5. A trade mark may be registered in any colour or be registered in any colours and such registration shall, subject to the provisions of this Proclamation, confer on the registered owner the exclusive right to use the same in that or any other colour or colours.

6. Every application for registration of a trade mark under this Proclamation shall, as soon as may be after its receipt, be advertised by the Registrar unless the Registrar refuse to entertain the application.

7. (1) Any person may within one month, or such further period not exceeding three months as the Registrar may allow, istration. of the advertisement of the application, give notice in duplicate at the Patent Office of opposition to registration of the trade mark, and the Registrar shall send one copy of such notice to the applicant.

(2) Within one month after the receipt of such notice, or such further time as the Registrar may allow, the applicant may send to the Registrar a counter-statement in duplicate of the grounds on which he relies for his application, and if he does not do so shall be deemed to have abandoned his application.

(3) If the applicant sends such counter-statement, the Registrar shall furnish a copy thereof to the person who gave notice of opposition and shall, after hearing the applicant and the opponent, if so required, decide whether the trade mark is to be registered, but his decision shall be subject to appeal to the Court which shall hear the applicant and the opponent and the Registrar and may make an order determining whether and subject to what conditions (if any) registration is to be permitted. (4) If the applicant abandons his application after notice of opposition in pursuance of this section, he shall be liable to pay to the opponent such costs in respect of the opposition as the Registrar may deem to be reasonable.

(5) Where the opponent is out of this Colony, he shall give the Registrar an address for service in this Colony.

Proc. No. 23 of 1902.

8. Where each of several persons claims to be registered as proprietor of the same trade mark, the Registrar may refuse to register any of them until their rights have been determined according to law, and the Registrar may himself submit or require the claimants to submit their rights to the Court.

Opposition to reg

Conflicting claims to registration.

When leave of the Court to register ne

9. The Registrar shall not, without the special leave of the Court to be given in the prescribed manner, register in respect cessary. of the same goods or description of goods, a trade mark identical with one which is already registered with respect to such goods or description of goods, and the Registrar shall not without such leave as aforesaid register with respect to the same goods. or description of goods, a trade mark having such resemblance to a trade mark already on the register with respect to such goods or description of goods as to be caloulated to deceive. It shall not be lawful to register as part of or in combination with a trade mark any words the use of which would, by reason of their being calculated to deceive or otherwise be deemed disentitled to protection in the Courts of Justice in England or any scandalous designs.

No action to lie

10. From and after the first day of August, 1902, a person for infringement of shall not be entitled to institute any proceedings to prevent or non-registered trade recover damages for the infringement of any trade mark capable mark. of being registered under this Proclamation until and unless such trade mark is registered in pursuance of this Proclamation, or unless it has been registered under the provisions of Law No. 6 of 1892.

Proc. No. 23 of 1902.

Effect of registration as first proprie

tor.

Register of Trade Marks.

Entry of assignments.

Inspection of and extracts from register.

Court may rectify the register.

11. The registration of a person as first proprietor of a trade mark shall be primâ facie evidence of his right to the exclusive use of such trade mark, and shall after the expiration of five years from the date of such registration be conclusive evidence of his right to the exclusive use of such trade mark subject to the provisions of this Proclamation as to its connection with the goodwill of a business.

12. There shall be kept at the Patent Office a book called the Register of Trade Marks, wherein shall be entered the names and addresses of proprietors of registered trade marks, notifications of assignment and of transmissions of trade marks and such other matters as may be from time to time prescribed, provided always that there shall not be entered on the register, or be receivable by the Registrar, any notice of any trust express implied or constructive.

13. Where a person becomes entitled by assignment, transmission, or other operation of law to a registered trade mark, the Registrar shall on request and on proof of title to his satisfaction, cause the name of such person to be entered as proprietor of the trade mark in the Register of Trade Marks. The person for the time being entered in the Register of Trade Marks as proprietor of a trade mark, shall, subject to the provisions of this Proclamation, and to any rights appearing from such register to be vested in any other person, have power absolutely to assign or otherwise deal with the same, and to give effectual receipts for any consideration for such assignment or dealing.

14. The register of Trade Marks kept under this Proclamation, shall, at all convenient times be open to the inspection of the public, subject to the provisions of this Proclamation, and to such regulations as may be prescribed, and certified copies, sealed with the seal of the Patent Office, of any entry in such register shall be given to any person requiring the same, on payment of the prescribed fee.

Sealed copies to be

15. Printed or written copies, or extracts purporting to be received in evidence. certified by the Registrar and sealed with the seal of the Patent Office, of, or from any documents in the Patent Office relating to trade marks, and of or from the register of trade marks, or other books relating to trade marks kept there, shall be admitted in evidence in all Courts in this Colony, and in all proceedings, without further proof or production of the originals.

16. If the name of any person who is not for the time being entitled to the exclusive use of a trade mark in accordance with this Proclamation, or otherwise in accordance with law, is entered on the register of trade marks as a proprietor of such trade mark, or if any mark is registered as a trade mark which is not authorised to be so registered under this Proclamation, any person aggrieved may apply in the prescribed manner for an order of Court that the register may be rectified, and the Court may either refuse such application, or it may, if satisfied with the justice of the case, make an order for the rectification

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