Owners of trade marks in Mozambique should take heed of recent developments in IP rights in the country. While the code governing IP rights in Mozambique does not specifically provide for the cancellation of a trade mark based on non-use, it does require that the proprietor of a registered trade mark file a declaration of intent to use the mark every five years from the date of registation or renewal. This declaration must be filed within the grace period "commencing six months before and ending six months after the expiry of the five year period".
If no such declaration is filed, the trade mark will not be enforceable against third parties and the director general of the Industrial Property Institute of Mozambique ("IPI") can terminate the registration at the request of any interested party or if prejudice during proceedings for other registrations is found. This is regardless of whether the trade mark is in use in Mozambique or elsewhere, or whether it is a well-known trade mark.
Such cancellation requests have a significant impact on trade mark owners. Firstly, the IPI does not notify trade mark owners once a cancellation request has been filed by a third party. Trade mark owners are therefore not afforded the opportunity to oppose the request. Secondly, it is practice that the cancellation request will be granted, provided that the declaration of intent to use is due and the grace period has expired. The cancellation request is then processed and granted without notice to the trade mark owner. Consequently, the rights of trade mark owners are uncertain until such time as the owner tries to enforce his/her rights, and is unable to do so.
The IPI has seen an influx of cancellation requests by third parties due to the non-filing of declarations. We recommend that trade mark owners in Mozambique attend to the timeous filing of their declarations in order to avoid cancellation of their trade marks. This will also prevent attempts by third parties from taking advantage of the reputation and goodwill associated with the trade mark by simply applying to register an identical trade mark once the existing registration has been cancelled.
Ferosa-Fae Hassan is a candidate attorney in ENSafrica's IP department.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.