By Madalo Banda
What is a Trademark
Trademarks comprise signs or symbols which distinguish the goods or services of one undertaking from another undertaking.
What is the Legal Framework for Registration of a Trademark
Trademarks are governed by the Trademarks Act [Cap 49:03].
Malawi is also a signatory to various international intellectual property instruments including:
The Paris Convention for the Protection of Industrial Property
The Banjul Protocol
The Madrid Protocol
The Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The Nice Agreement
What Trademarks can be Registered
- Standard Trademarks: these are marks that identify the owner of a product.
- Service Marks: these are marks that indentify the provider of a service.
- Geographical Indications: these are indications or marks that identify a particular product as originating from a particular territory
- Collective Marks: these indicate the commercial origin of goods and services by indicating that the proprietor is a member of a particular group or association.
- Certification Marks: These are marks used by a manufacturer to indicate that they have complied with a particular standard or regulation, with relation to that mark.
- Well Known Marks: these are marks that are known to a substantial segment of the general public.
What is the Trademark Registration Procedure in Malawi
Trademark protection in Malawi can be obtained by applying to the office of the Registrar General which must state:
- A request for registration of the mark as a trademark;
- the name and address of the applicant;
- the goods or services for which registration is related;
- a representation of the mark;
- a declaration of use or of the intention to use the mark as a trademark
The office of the registrar shall then decide to accept or refuse the application.
If the application has been accepted, the office of the registrar shall advertise the trademark by putting a notice in the National Gazette and one newspaper of national circulation.
Within 30 days from the advertisement, any person may file an objection to the registration of the trademark.
If the Trademark registration is not opposed, the registrar shall issue a Trademark registration certificate.
Classification of Goods and Services
Good and services to be registered in Malawi shall be classified in accordance with the Nice Classification under the Nice Agreement.
What Rights are Conferred on Registration
Once a trademark has been registered, the owner shall have exclusive right to use the trademark in respect of the goods and services for which the trademark was registered.
What is the Time involved in Trademark Registration
Once the application has been filed, the registrar’s office shall decide to accept or refuse the application within 30 days.
The office of the registrar shall within a reasonable time make the advertisement.
Any party with the intent to object to the registration of the mark may do so within 1 month.
Complete trademark registration is expected to take 3 months.
What is the Duration of Protection
Registration for a trademark shall be for a period of 10 years from the date of issue of the certificate of registration.
Renewal of Trademarks
Trademarks may be renewed for a further period of 10 years from the date of expiry of the registration by filing a renewal application with the office of the registrar.
How are Trademark Rights Enforced
Where a Trademark Registered in Malawi has been infringed, the Trademark owner can bring a case to the High Court of Malawi, Commercial Division and may obtain the following remedies:
- an injunction
- an order for removal of the infringing mark from all infringing items
- an order for destruction of any infringing product where the mark cannot be removed
- and order for seizure of the infringing products
- damages for the profits derived form said infringement
- or the payment of a reasonable royalty fee.
The legal framework for trademark registration allows for the registration of various types of Trademarks within Malawi. Registration of a Trademark can be done at the office of the Registrar General. Once registration is completed, the aid trademark is protected for a period of 10 years.