The existing legislation regulating trade marks can be found in the Trade Marks Act Chapter 82:81 which was based on the U.K. Trade Marks Act 1938. The Trade Marks Act was amended in 1994, 1996 and 1997. Some measure of protection is granted to unregistered trade marks under the Protection Against Unfair Competition Act, 1996. A common law passing-off action may also be initiated for the protection of an unregistered trade mark.
The Trade Marks Act provides for the registration of distinctive trade marks and service marks and adopts the Nice Classification of Goods and Services. The full text of the Nice Classification may be found at www.wipo.int/trademarks/en
A trade mark includes any sign, symbol, device, brand, heading, label, name, word or combination thereof that is used to identify the goods or services of an entity and distinguishes the goods and services of the entity from those of its competitors.
A trade mark may include:
The Trade Marks Register is divided into Part A and Part B. A trade mark is registrable if it is distinctive (Part A registration) or capable of distinguishing the goods or services of the applicant, from those of another entity (Part B registration).
The following are not registrable:
A registered trade mark may be struck off the Register on either of the following grounds:
There is no requirement that a mark must be used prior to registration. However, prior usage of the mark may demonstrate that the applicant has developed goodwill and reputation in the mark and that the mark is capable of distinguishing the goods or services of the applicant from the goods or services of other entities. This would facilitate the Part B registration of a mark which is not prima facie distinctive but capable of distinguishing the goods or services of the applicant from those of another entity. In addition, prior usage of a mark makes the mark less vulnerable to being struck off the Register on the grounds of lack of bona fide intention to use the mark and three years non-use.
Unregistered marks receive some protection under the common law of passing off and under the Protection Against Unfair Competition Act 1996.