An Analysis of the proposed Amendments of the trademarks regime in Zambia

Abstract

The absence of substantial review since it was inherited from the colonial government at independence in 1964, the Zambian Intellectual Property regime is largely outdated and falls far short of the minimum standards stipulated in the World Trade Organizations (WTO)' Agreement on Trade Related Aspects of Intellectual Property Rights (hereinafter called 'the TRIPS Agreement'). Apparently, Zambia and other Least Developed Countries (LDC5) have until 2013 to domesticate general provisions of the TRIPS Agreement and those relating to pharmaceuticals by 2016. Trademarks are currently registered in connection with goods only. Under the current law, the Trade Marks Act Cap 401 protects trademarks only for goods and is administered by the Patents and Companies Registration Agency (PACRA) formerly Patents and Companies Registration Office (PACRO). The Act does not provide for the protection of service marks and other types of traditional and acceptable non-traditional marks. In terms of international obligations in the field of trademarks, Zambia acceded to the Madrid Protocol on the International Registration of Marks (hereinafter referred to as 'the Madrid Protocol') but has not amended its municipal law to recognize and provide for such marks. The Trade Marks Act, which provides for protection only for goods will require amendments in order to comply with the Madrid Protocol and the TRIPS Agreement. The Trade Marks Act in its current form contains a number of provisions which are incompatible with the TRIPS Agreement and therefore needs to be revised to ensure compliance with the TRIPS Agreement. The relevant legislation dates back several decades and therefore neither reflects recent development in the field of industrial property nor ensure compliance with TRIPS obligations. Trademarks play a very important role in helping consumers distinguish a product or service from one source from those produced by another source. These products or services affect the public at large. It is therefore important that there is in place a trademark regime that will take into account the Madrid Protocol and TRIPS Agreement as well as encompass the new trends in the field of intellectual property. It is my sincere hope that this paper will significantly contribute to addressing some of the current problems inherent in the field of trademarks.