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Use or Intention to Use for the Purpose of Filing Trade Mark Applications in Namibia and ARIPO

One of the most basic principles relating to trade marks is use: a trade mark is anything that is used or intended to be used to distinguish the goods and/or services of one trader from those of others in trade; a registered trade mark not used within a certain time after registration may be removed from the register; trade mark applications are filed in the name of the proprietor of a trade mark who is using or intends to use the relevant trade mark.

In most countries, an application can be based on any use or intention to use on the part of the applicant, being the proprietor of that trade mark, whether the applicant intends to use the trade mark in the relevant country himself or whether the intention is to authorise others to use the trade mark under license.

However, this situation differs in Namibia and for applications filed with ARIPO (more information on ARIPO and the countries covered can be found here) , Section 24(1)(b) of the Trade Marks in South West Africa Act (the Act currently providing for registration of trade marks in Namibia) and Section 3:5 of the Banjul Protocol (the treaty making provision for the registration of trade marks with ARIPO) both provide broadly that, if the applicant does not use or intend to use the trade mark himself, the application must be accompanied by an application to record a third party who is intended to be the person using the trade mark in the relevant territory (i.e. a licensee) as a registered user. That third party will then be recorded as a registered user in respect of the relevant trade mark once it proceeds to registration.

Considering the above, it is very important to be sure at the time of filing an application in either of these territories who will be the person that will use the trade mark in due course.

For more information, please contact Adre Greeff

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