ZAMBIA Law and Practice Contributed by: Joseph Jalasi, Mailesi Undi, Chama Simbeye and Wana Chinyemba, Dentons Eric Silwamba, Jalasi & Linyama Legal Practitioners
hibit the use of an identical/confusingly similar mark in relation to goods not covered by the said registra - tion, even where the goods may be considered similar. There is also no express protection for unregistered trade mark proprietors in the Trademarks Act against infringers that register the trade mark, despite the unregistered proprietor showing evidence of previous use of the trade mark commercially. Section 16 of the Trademarks Act provides that it is not lawful to register as a trade mark or part of a trade mark any matter the use of which would be likely to deceive or cause confusion, be contrary to the law or morality, or any scandalous design. Patents A patent can be the subject of a compulsory licence. Section 99 of the Patents Act provides that three years from the date of the granting of a patent, a person may apply to the minister for the granting of a compulsory licence on any of the following grounds: • that without reasonable cause, the patentee does not use the patented process in Zambia; • that the patented product or article is not available to the public in Zambia in sufficient quantity or at an affordable price; • that the refusal by the patentee to grant a contract licence, on reasonable terms, is prejudicial to the country’s establishment and development of indus - tries or commercial activities; • that the applicant for a contract licence has failed to obtain the patentee’s consent for the use of the patented invention under reasonable terms and conditions; • that the interest of public health or nutrition demands the commercial use of the patented invention in Zambia;
• that there is a need to remedy the abuse of intel- lectual property rights or anti-competitive prac - tices; or • that there is a national emergency that requires the use of the patented invention. This type of licence is not very common and there have been no compulsory licences for the past five years in Zambia. There are laws that limit the terms upon which parties may agree on a patent licence. For example, the terms of the licence may not have unjustified restrictions or be prejudicial to the country’s economic interest. Section 97 (1) of the Patents Act provides that the registrar may refuse to register a licence contract that imposes unjustified restrictions on the licensee or is prejudicial to the country’s economic interest. 11.3 Data Protection and Privacy Considerations Zambia currently has the following data protection and data privacy laws and regulations in place: • the Data Protection Act No 3 of 2021; • the Constitution of Zambia Amendment Act No 2 of 2016; • the Electronic Communications and Transactions Act No 4 of 2021; • the Cyber Security and Cyber Crimes Act No 2 of 2021; and • the Information and Communications Technologies Act No 15 of 2009. These laws do not, however, have an extraterritorial scope.
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