Since the Republic of South Sudan gained full independence from Sudan on July 9 2011, there have been doubts about the possibility of trade mark registrations and their enforceability. This is due to the absence of a national law and the fact that Sudanese trade mark registrations no longer apply to South Sudan.
Since the Republic of South Sudan gained full independence from Sudan on July 9 2011, there have been doubts about the possibility of trade mark registrations and their enforceability. This is due to the absence of a national law and the fact that Sudanese trade mark registrations no longer apply to South Sudan.
(At present, there is no intellectual property legislation in place in South Sudan. A draft Trade Marks Bill was tabled in 2013, but this is yet to be promulgated. In practise, trade marks are currently being registered in terms of the Sudan Trade Marks Act of 1969, as the Transitional Constitution of South Sudan states that all current laws of Sudan shall remain in force and all current institutions shall continue to perform their functions and duties unless new actions are taken in accordance with the provisions of the constitution).
In practice, the Business Registry within the Ministry of Justice is accepting and processing applications for the registration of trade marks. In dealing with these, the South Sudan Registry has taken an executive decision to be guided by the Sudan Trade Marks Act of 1969 despite that statute's official inapplicability to South Sudan.
There is still no actual trade mark law in South Sudan or any indication of its proposed date or content, therefore the system mentioned above has no statutory authority. However, trade mark owners may decide to proceed as above on the pragmatic basis that the process is being conducted by the Ministry of Justice and therefore it is likely the government will recognise it, to the extent that:
- A certificate issued under the present procedure will be cited against a later application under the same or a subsequent system, so the first to file has the advantage.
- A formal Act, when passed, will ratify what has been done.
- The present certificates may be recognised to some extent in any litigation that may be conducted before a new law is enacted.
The documentary requirements include:
(a) A power of attorney (notarised);
(b) A representation of the mark;
(c) The usual details of the applicant and goods/services to be claimed. The current Nice classification is being used and a separate application is required for each class of goods or services;
(d) A picture showing how the mark is to be applied to the goods/services claimed and the nature of the goods/services.
A different requirement is now imposed on the Registry for public health reasons, relating to trade marks to be registered for beverages for human consumption. Instead of the picture in (d) above, an application comprising such beverages must be accompanied by a real sample (not just an image) of the bottle, can, etc, that contains the liquid and displays the trade mark.
The resulting registration is stated to be for 10 years from the filing date. It is hoped that proper law and procedures will be implemented within that term, under which the original filing date will be preserved.
There is no sign of corresponding arrangements for patent or other intellectual property (IP) rights.
(This article first appeared in the Managing Intellectual Property website. It was written by Wayne Meiring. Additional information by TCT)
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