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Trademark THE NAMES OF PRODUCTS AND / OR SERVICES


1. What is a trademark?

A trademark is a sign used to distinguish goods and / or services of one company from other companies.


2. What are the categories of existing brands?

There are two main categories of trademarks:

  - The mark attached to products (food, clothing, tools and equipment, etc.).
  -  The mark for services used to distinguish certain services as those companies determined (commercial or financial activities, restaurants, airlines, etc.)

 
        There is also an another categorization: brand (assigned by the manufacturer or producer) and trademark (applied by commercial companies, especially in supermarkets).

These marks can be:

    Individual: belonging to a single person or entity, giving the exclusive use of the mark in question
    Collective: belonging to a group or association where each member can use this mark with regulation defined by the group or association. This type of mark is generally intended to guarantee origin, quality or characteristic and common products or services offered by members.


3 .What forms can have a brand?

A brand of products or services, individual or collective, may have many forms. 

       The two-dimensional shapes include:
       · Verbal trademarks (composed of words, letters and numbers, separately or in combination)
       · Figurative trademarks (consisting only of drawings, images, logos), and
       · Complex trademark (combine verbal marks and figurative marks).
       Three-dimensional marks consist of the particular shape or the packaging of a product that identifies it on the market.

      We can also mention sound marks (music or vocal sounds), olfactory marks (perfumes) and the colors used as distinguishing signs.


4. How to protect a trademark?

The protection of a mark shall be acquired through registration generally with the national trademark office (OMAPI for Madagascar). Protection mode is defined by the trademark laws of each country. Thus, to be legally protected in Madagascar, a brand of products or services must be registered at the the Malagasy Office of Industrial Property (OMAPI), accordance to Ordinance No. 89-019 of 31 July 1989 establishing a Protection of Industrial Property and the implementing decrees (Decrees No. 92-993 and No. 92-994 of 2 December 1992). For this purpose an application for registration of a trademark must be filed at the Office using the appropriate form (No. 9).

Rights under this registration (brand protection) are limited to the territory for which they are granted. Thus, the trademark deposited at OMAPI is protected in Madagascar only after registration. Similarly, a trademark registered with the National Institute of Industrial Property (INPI) in Paris, France is protected there and in overseas territories. But there is a system which facilitates international filing, the Madrid system, which can be borrowed from Madagascar.

How to protect a trademark in Madagascar (national protection)?

How to protect a trademark at international level (application for protection in other countries)?


4.1. Application procedure for registration of a trademark

For that, an application for registration of a trademark must be filed at OMAPI using the appropriate form (No. 9)


        The application shall contain such a clear reproduction of the mark and a list of products or/and services to which the mark applies. Payment of the prescribed fees (registration fee and publication fee) is also a condition of admissibility of the application.

Applicants’ domiciled abroad (non-residents) must appoint an agent of the industrial property approved by OMAPI to represent them at the said Office.

        Once the administrative review (application form properly completed and fee duly paid), a copy of the form is given to the applicant as a notification of deposit.

4.2. How registration of trademark is done?

        The OMAPI proceed to registration if the trademark satisfies the clauses of the legislation (substantive examination). It is to consider, among others, the following conditions:
· The sign must be distinctive
             · The sign must not delude  consumers or mislead them
             · The sign does not violate public order or morality,
             · The sign is not in conflict with a prior right (a trademark has an identical or similar sign  already filed or registered at the Office)

       To ensure compliance with this condition, the applicant may request at the Office  to make a "prior search" of the  trademark . (See Procedure for trademark registration)

       The title of the brand, materialized by the certificate of registration is issued approximately a one year after the filing date. In addition, the registered trademark is published in the Official Gazette of Industrial Property (GOPI).


5. What are the rights arising from the registration of a trademark?

- The registration of a trade mark confers on its proprietor the right to prohibit others from any commercial brand or trade name that is similar to the point of misleading the public for the products or services for which the mark has been registered, as well as other products or services for which the use of the mark would mislead the public into error.


- The duration of protection of a registered trademark is ten years from the filing date.

- The registration can be renewed at the request of the owner, upon payment of the prescribed fees, for successive periods of ten years


In case of infringement of the rights attached to a registered trademark, the owner may, under an order of the President of the competent court, proceed to the designation and detailed description, with or without seizure, of objects suspected counterfeit.
- It is noted that the effects of the registration of the trade mark is limited to national territory (territoriality principle). However, protection abroad can be treated by multinational treaties administered by the World Intellectual Property Organization (WIPO), such as the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol.

- To inform the public that the mark has been filed or registered at  the OMAPI, the owner may inscribe beside the mark, respectively, the words "Trademark" or TM or ®

6. Contained in the Special Register of Marks?

       Actions relating to a trademark or registered trademark, such as the sale or transfer of rights attached thereto, license, change of name and / or address, additions or cancellations on the list of products / services etc.. must be entered in the Special Register of Marks, to avoid nullity accordance applicable laws. There are forms to fill out for this purpose and fees to pay.
       Thus, It should be noted, that to be protected, a trademark registered that has been modified should be the subject of a new deposit in good and due form.