What is a trademark?
A trademark is any sign, symbol, logo, shape or mark that serves to distinguish the goods or services of one proprietor from those of another. It is often referred to as a badge of origin of good or services in the market place. In Lesotho, Trademarks registration is provided for by the Industrial Property Order No.5 of 1989 and its regulations of 1989.
Requirements for Trademark Registration – Section 25:
In Lesotho, a registration of a mark, sign or symbol can only be afforded to a proprietor only when a number of fundamental requirements are met, and these are:
- Distinctiveness: Since the primary function of the trademark is to tell the public that the goods or services come from you and no one else, the mark must be distinctive. In other words, it should be able to distinguish the goods or services of a proprietor’s enterprise from those of his competitor. The distinctive feature of trademark helps consumers to differentiate between the goods of one proprietor from those of another.
- The mark should not be contrary to public order or morality: In order to decide whether a trademark registration is contrary to public order or good morals, judgement is usually made based on the appearance, concept or pronunciation of the trademarks, the social environment at the time of registration, the market for the designated products or services and public perception. It will then be considered whether it is contrary to or destroys religious, familial or social values, or affects the public interest. This determination is made upon examination of the mark for registration by the registrar.
- Must not be deceptive: If a mark is likely to mislead the public or trade circles, in particular as regards the geographical origin of the goods or services concerned or their nature or characteristics it will not be protected.
- The mark should not be identical with, or be an imitation of, or contain an element, an armorial bearing, flag and other emblem, a name or abbreviation or initial of the name of, or official sign or hallmark adopted by, a State, intergovernmental organization created by an international convention, unless authorized by the competent authority of that State or organization.
- The mark should not be identical with, or confusingly similar to, or constitutes a translation of, a mark or trade name which is well known in Lesotho for identical or similar goods or services of another enterprise.
- It should not be identical with a mark belonging to a different proprietor and already on the register, or with an earlier filing or priority date, in respect of the same goods or services, or closely related goods or services, or if it so nearly resembles such a mark as to be likely to deceive or cause confusion.
- The mark should not be identical with, or confusingly similar to, or constitute a translation of, a mark which is registered and well-known in Lesotho for goods or services which are not similar to those in respect of which the mark is registered, provided that use of the mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered mark and provided that the interests of the owner of the registered mark are likely to be damaged by such use.
Procedure of registration
Anyone whose mark has fulfilled the prerequisites mentioned above can file their trademark with the intellectual Property Registrar’s office. The application will then undergo acceptance by the registrar, followed by a substantive examination. Upon passing the examination phase, the mark will then be publicly published and if no opposition is made towards its registration by any interested party, the registrar will then register the mark and the proprietor will be award with a certificate of registration of that particular trademark.
Benefits of registering your trademark
The trademark owner will have by law the exclusive right to:
a) use the mark in the course of his/her trade;
b) deter competitors or anyone from using the same mark;
c) commercialize the mark – sell it, license it etc;
d) determine how, where and when the mark should be used;
e) sue anyone using the same mark without his authorization.