SOUTH AFRICA Law and Practice Contributed by: Roberto Barreiro, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
4.9 Incorrect Information in an Application
the goods, or is likely to limit the development of any art of industry; • a mark for which the application for registra - tion was made mala fide; • a mark that contains the coat of arms, seal or national flag of South Africa or of a conven - tion country; • a mark that contains any word, letter or device indicating State patronage; • a mark that contains any mark specified in the regulations as being a prohibited mark (ie, marks that include the ® symbol); and • a mark that is inherently deceptive or its use would be likely to cause deception or confusion, be contrary to law, contra bones mores, or likely to give offence to any class of persons. If a trade mark application is provisionally refused by the Registrar on absolute or relative grounds, it can be challenged in view of overcoming the refusal. This is done by submitting written rep - resentations to the Trade Marks Office. The content of the written representations will vary depending on the grounds upon which the trade mark application was refused – for instance, a refusal based on the fact that the trade mark is not capable of distinguishing can be overcome by submitting proof that the mark has acquired
Providing incorrect information with regard to a trade mark application may result in the trade mark being provisionally refused upon exami - nation. If the mark were to proceed to registra - tion, it may render it vulnerable to cancellation depending on the nature of the incorrect infor - mation. It is possible to correct any errors relating to the trade mark application, as outlined in 4.7 Revo- cation, Change, Amendment or Correction of an Application . 4.10 Refusal of Registration Upon examination of a trade mark, the Regis - trar may refuse it based on any of the following absolute grounds for refusal, which are provided for in Section 10 of the Trade Marks Act 194 of 1993: • the mark does not constitute a trade mark as defined in the Trade Marks Act 194 of 1993; • the trade mark is not capable of distinguish - ing; • the trade mark is descriptive of the goods or services in relation to which it has been filed and would therefore be reasonably required for use in trade; • the trade mark consists of a sign that has become customary in current language or established practices of the trade; • the applicant has no bona fide claim to pro - prietorship in respect of the trade mark; • the applicant has no bona fide intention to use the mark as a trade mark; • a trade mark that consists of a shape, config - uration or colour of goods where such shape, configuration or colour is required to achieve a technical result, results from the nature of
distinctiveness through use. 4.11 The Madrid System
It is not possible to file international registrations in South Africa, as it is not a signatory to the Madrid Agreement nor to the Madrid Protocol.
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