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Legislative Texts
SOUTH AFRICA
(4) The registrar or the court may make such order for removing or varying the registration of the trade
mark as he or it may deem fit.
27. Removal from register on ground of non–use
(1) Subject to the provisions of sections 13 and 70(2), a registered trade mark may, on application to
the court, or, at the option of the applicant and subject to the provisions of section 59 and in the prescribed
manner, to the registrar by any interested person, be removed from the register in respect of any of the goods
or services in respect of which it is registered, on the ground either –
(a)
that the trade mark was registered without any bona fide intention on the part of the
applicant for registration that it should be used in relation to those goods or services by
him or any person permitted to use the trade mark as contemplated by section 38, and that
there has in fact been no bona fide use of the trade mark in relation to those goods or
services by any proprietor thereof or any person so permitted for the time being up to the
date three months before the date of the application;
(b)
that up to the date three months before the date of the application, a continuous period of
five years or longer has elapsed from the date of issue of the certificate of registration
during which the trade mark was registered and during which there was no bona fide use
thereof in relation to those goods or services by any proprietor thereof or any person
permitted to use the trade mark as contemplated in section 38 during the period
concerned; or
(c)
subject to such notice as the court or the registrar, as the case may be, shall direct, and
subject to the provisions of the regulations, that, in the case of a trade mark registered in
the name of a body corporate, or in the name of a natural person, such body corporate was
dissolved, or such natural person died, not less than two years prior to the date of the
application and that no application for registration of an assignment of such trade mark has
been made in terms of section 40.
(2) The registrar or the court may refuse an application made under paragraph (c) of subsection (1) in
relation to any goods or services if it is shown that the trade mark is used or proposed to be used in relation
to such goods or services by a successor in title of the registered proprietor.
(3) In the case of an application in terms of paragraph (a) or (b) of subsection (1) the onus of proving, if
alleged, that there has been relevant use of the trade mark shall rest upon the proprietor thereof.
(4) An applicant shall not be entitled to rely for the purposes of paragraph (b) of subsection (1) on any
non–use of a trade mark that is shown to have been due to special circumstances in the trade and not to any
intention not to use or to abandon the trade mark in relation to the goods or services to which the application
relates.
28. Date of removal and partial removal
(1) Any order granted by the registrar or the court in relation to any entry in or omission from the
register shall be deemed to operate from –
(a)
the date of the application for such order; or
(b)
if the registrar or the court, as the case may be, is satisfied that grounds for such order
existed at an earlier date, that date.
(2) Where under this Act any grounds for the removal of the registration of a trade mark exist in
respect of only some of the goods or services for which the trade mark is registered, the removal shall relate
to those goods or services only.
ZA009EN
Marks, Act, 22/12/1993, No. 194
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