Mozambique Trade Marks - The Need to File a Declaration of Intent to Use
Mozambique is a former Portuguese territory and its trade mark legislation (the Industrial Property Code) contains some characteristics of Portuguese law, such as the need to file a Declaration of Intent to Use a trade mark every five years.
There are, however, some ambiguities in the Industrial Property Code (the"Code") and as a result a draft amendment has been prepared and circulated for comment.
In the meantime, the question has arisen as to whether it is actually necessary for owners of trade marks to file a Declaration of Intent to Use (DIU) in connection with their national and/or international registrations in Mozambique.
The Code is divided into several chapters and Chapter IV deals with trade marks. Chapter IV, in turn, is divided into sections. Section II deals with ordinary trade marks, Section III deals with special trade marks and Section IV deals with International Registrations.
The only mention of a DIU is in Section III, which deals with special trade marks, i.e. an accelerated application/registration process for local applicants who wish to use the national registration as the basis of an International registration. That said, the actual wording of the section is quite unclear and could suggest that DIUs be filed in connection with all types of trade marks.
The Code also contains contradictory time frames within which the DIU is to be filed. In terms of Article 112 (1), a DIU must be filed within 5 years from the date of filing. Sub-sections (2) and (6), however, refer to seven year periods. In the absence of a definition it has always been assumed that the term "date of registration" is the date of filing as this is the date used to calculate the due date for renewals in Mozambique.
Two of our partners recently met with the new Registrar of Trade Marks, Mr Fernando dos Santos, in order to discuss these issues in detail. The registrar conceded that the wording of the present Code is unclear and ambiguous. However, despite this concession, he is of the opinion that DIUs are to be submitted every five years for all trade marks whether they have been filed in terms of section II, III or IV. In addition, he deems the date of the expiry of the opposition period to be the date of registration. This would, in the case of national registrations, be the date of publication plus sixty days and in the case of international registrations, the date of publication plus thirty days. The DIU can be filed 6 months prior or 6 months after the due date.
While we do not believe that the Registrar´s interpretation of the Code is correct, we suggest that DIUs be filed as a precautionary measure. The first Journal was published on 30 March 2000. DIUs in respect of trade mark applications advertised in 2000 will therefore be required to be filed by 30 April 2005 in the case of international registrations or 30 May 2005 in the case of national registrations. The earliest DIU can be filed on 30 November 2004 or 30 December 2004, respectively.
The Registrar has indicated that attention will be given to addressing the ambiguities in the Code by amending the current legislation. Until then we recommend that DIUs be filed in order to safeguard current rights in Mozambique.
Click here for Mozambique Filing Requirements
Spoor & Fisher