The Mozambique new Industrial Property Code (hereinafter CPI) approved by the Council of Ministers by the Decree no.47/2015 dated 31 December 2015, has been effective since 31st March 2016.
As a result of the foregoing, there have some changes and new additional IP rights, which although were in use, were not properly addressed in the old CPI. There is therefore a need to highlight these changes and additions which may pose a challenge. In Article 1 of the CPI there is a broader scope of definitions with reference to franchising agreements, technology transfer agreements, the type of marks with the inclusion of non-traditional trademarks such as the olfactory trademarks (smell), establishment names, patent of inventions and differences between industrial and intellectual property.
The provision of no.2 of article 8 on the registration of IP rights includes the registration of franchising agreements and technology transfer agreements, and clearly refers to the registration of contracts of transfer; recordals of assignments (and the like) and recordals of change of name, address and proprietor of a trademark.
No.3 of article 9 makes provision for the annulment and refusal of company names or trade names if the registration/incorporation thereof is subsequent to the registration of similar trademarks, logotypes, geographical indications and denominations of origin or an appellation of origin. This matter is probably a clear way to strengthen the collaboration between the IPI (Patent and Trademark office) and the CREL (Company registration office).
Article 19 provides for a new provision regarding the internal administrative appeal, with a remanding effect, within a period of 30 days to the Ministry that oversees the IPI. Such appeal shall be mainly for situations whereby the registration of IP rights that have been refused, opposed or where there is a complaint against the decision of the General Director of IPI. There is also a new period for the opposition of trademarks, which has been amended from 60 days to 30 days with an extension of 60 days. As such the official gazettes are now to be advertised monthly instead of twice a month.
No.2 of article 54 (which relates to the description of the invention for patents) provides for the inclusion of traditional knowledge (tk), as part of the adoption of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore[1]. It also provides for genetic resources or biological material collected in Mozambique to be included on the description of an invention when one seeks patent protection, so that knowledge originating therein i.e. in our local or traditional communities is protected and acknowledged by the national competent authority of the contracting state and ARIPO office.
There are a number of questions or challenges to IPI, AOPIs and Mozambique as to how olfactory trademarks are going to be registered? Requirements? Does the IPI have officials able to distinguish these? Will Applicants and the IPI comply with these opposition period as from previous experience even with the older 60 days, Applicants took long to provide documents and further evidence; and the IPI also still does not comply strictly with the terms to provide responses to a number of cases?….
Further matters which will be raised along the application of the CPI will be addressed at the right time.
[1] Adopted in Swakopmund, Namibia in 2010. Mozambique is a contracting state.
Article compiled by Eunicio Sitoe (Industrial Property Agent) of our member firm CGA Advogados in Mozambique
