OVERVIEW ON INTELLECTUAL PROPERTY IN TANZANIA

In this month’s legal update- we provide an overview on Intellectual property and its application in Tanzania.

Introduction

Intellectual property refers to the legal rights which result from intellectual creations in the industrial, scientific, literary and artistic fields. Intellectual property aims at protecting mental creations and innovations by granting them a right to own, control, use, and possess the intellectual property creations.

Intellectual property consist of intangible assets which are creations of human mind and can be categorized into two categories which are as follows;

1. Industrial property which is composed with patents, trademarks and, industrial designs and;
2. copyrights

This article intend to explore on the laws regulating intellectual property and the procedures associated in obtaining an intellectual right in Tanzania.

PATENT

Patent is an exclusive right for an invention granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for a detailed public disclosure of an invention, an invention is defined under section 7 of the Patent Act to mean a solution to a specific problem in the field of technology and may relate to a product or process. Patent is intended to cover products or process that contain a new technical aspect

Enjoyment of the Right to Patent

Patent is granted to an inventor giving him/her the right to a limited period of time to stop others from making, using, or selling the invention without the permission of the inventor and when the patent is granted the invention becomes a property of the inventor, i.e. the inventor enjoys exclusive rights over the invention as provided undersection 14(1) of the Patent Act, however one should apply to be granted patent rights protection and he/she must prove that the invention is new and that it has never appeared anywhere in the world as provided under section 18(1) read together with section 8 and 9 of the Patent Act

Patent right are territorial as they are only recognized and enforced in the state or jurisdiction under which they are registered,that is to say a patent application can be made at a national or international level depending on whether a state has ratified an international treaty specifically the patent treaties which will enable the applicant to lodge an International patent application with a national or regional or even a worldwide patent office,  this will enable the applicant to obtain patent protection for his inventionon a large number of countries under a single protection. see section 1bis(1) of the Harare Protocol on Patent and Industrial Designs of 1982 the 2022 Edition underthe Africa Regional Intellectual Property Organization (ARIPO)Frameworkand Article 3 of the Washington International Patent Cooperation Treaty of 1970 Under the World Intellectual Property Organization (WIPO) Framework of which Tanzania is contracting state in both of the above Treaties.

Right of the Patent Owner

A registered patent owner enjoys some entitlement on the subject of patent as provided under section 36 of the Patent Act to include the rights to preclude any person from exploiting the patented invention by any of the following acts–

1. when the patent has been granted in respect of a product
2. making, importing, offering for sale, selling and using the product
3. stocking such product for the purposes of offering for sale, selling or using
4. when the patent has been granted in respect of a process
5. using the process
6. doing any of the acts of making, importing, offering for sale, selling and using the productstocking such product for the purposes of offering for sale, selling or using in respect of a product obtained directly by means of the process

Procedures of Obtaining Patent.

There are two ways of obtaining patent in Tanzania namely;

1. By filling a patent application to BRELA for registration.
2. By filling an application with the African Regional Intellectual Property Organization (ARIPO).

By filling a patent application to BRELA for registration.

Subject to the provision of section 18(1) of the Patent Act and Regulation 8 of the Patent Regulations an application for patent protection is done by filling an application to the office of the Registrar of patentswhich is under Business Registration and Licensing Agency (BRELA) in a prescribed Form No.2, an application for patent should contain the following particulars.

1. A title of the invention.
2. A description of the invention and stating the technical field which the invention falls.

By filling an application with the African Regional Intellectual Property Organization (ARIPO

Africa Regional industrial property organization based in Harare Zimbabwe is empowered bythe Harare Protocol on Patents and Industrial Designs of 1982 to grant patents protection, register utility models, and industrial designs to the contracting states. The application may be filled directly to the ARIPO office or to the industrial property office of a contracting state.

An applicant may be represented by an attorney agent or legal practitioner who has the right to represent applicants before the industrial property office of any contracting state. Upon filling an application directly to the ARIPO if the applicant residence or place of business is not in the host country of the office or when an application is filed with the industrial property office of a contracting state by an applicant whose ordinary residence or principal place of business is not in a contracting state, the applicant should be represented by an agent as provided under section 2(4)(a) and (b) of the Harare Protocol on Patents and Industrial Designs of 1982the 2022 Edition.Upon receipt of an application by a contracting state, the industrial property office must subject to the provision of section 2(5) of the Harare Protocol on Patents and Industrial Designs of 1982the 2022 Edition within a period of one month after the filling of the application, transmit the application to the ARIPO office with the following information and documents.

1. Applicant particulars
2. Power of Attorney (dully signed)
3. Specification in English which contain claims, abstract and illustrations.
4. Indication of the contracting states to be designed
5. Paperwork for an assignment (if the applicant is not the inventor)
6. Certified copy of the priority document (if priority is claimed).

According to Tanzania laws patent protection operates for 10 years from the date of grant as per section 39 (1) of the Patent Act, in addition the owner of the patent may request for an extension of the term of the patent for another 5 years only if the request is made not more than twelve months and not less than one month before expiration date of the patent.

Infringement of Patent and the Remedies thereof

Under the law making, importing, offering for sale, selling and using the product, stocking such product for the purposes of offering for sale, selling or using and using the product obtained directly by means of the process subject to section 36 of the Patent Act without the owner’s permission constitute the infringement of patent Rights as provided under section 66 of the Patent Act

A person aggrieved by infringement of patent may institute a lawsuit at the High Court by filling a Plaint as per section 66 of the Patent Act. The court is mandated to grant the following relief for infringement if infringement is proven.

1. An injunction to prevent infringement or to prohibit continuation
2. Damages and any other reliefs

TRADE AND SERVICE MARK

Trade and service mark is defined under section 2 of the Trade and Service Mark Act to mean a visible sign used or proposed to be used upon goods or services for the purpose of distinguishing in the course of trade or business from the goods or services of another person. Visible sign is defined under the same section of the Act to mean anything capable of Graphic, reproductive and includes word, name, brand etc. however not all signs are registable under the law of trade mark some of the sign are restricted when it comes to registration as provided under section 19 of the Act.

Procedures ofTrade and Service Mark

Any person who wishes to use certain marks must subject to the provision of section 21 of the Act and regulation 17 register the marks or trade markor proposed trade or service mark by filing an application to the registrar of trade and service mark under the service and trade mark office which is under BRRLA, the application shall be in writing and in a prescribed form TM/SM 2, where the application will pass under several procedure and if it meets the requirements and accepted such trade or service mark will be registered where the date of receipt of the application serves as the filing date and at the same time is deemed to be the registration date as provided under section 28(1)  of the Act.

Enjoyment of the Right to the use of Trade and Service Mark

The registered proprietor will subject to the provision of section 31 of the Act enjoy exclusive right to the use of the trade or service mark in relation to any goods including sale or importation.

Infringement of the Exclusive Right to Trade and Service Mark and the Remedies thereof

Violation of the exclusive right attached to the registered trade or service mark occurs when a person who is not the owner or the registered user subject to the provision of section 42 of the Act uses the trade or service mark which is identical or confusingly similar to a registered trade or service mark owned by another person as provided under section 32 of the Act and this give the right to the owner to commence a legal proceeding against the violation.

COPYRIGHT

Copyright is the sole legal right to print, publish, perform film or record a literary, artistic or musical work. It is an intellectual property aspect that protects original works of authorship from unauthorized copying, reproduction, and distribution, In Tanzania, copyright protection is governed by the Copyright and Neighbouring Rights Act No. 7 of 1999 and the works that are eligible for copyright protection under the Act include books, pamphlets, computer programs, lectures, addresses, sermons and other work of the same nature, musical works, photographic works etc. However the Act provides for an exception of the works that are not protected under copyright to include;Laws and decision of courts and administrative bodies, official translation, News of the day published, broadcasted or publicly communicated by any other means and any idea, procedures, method of operation, concept principle, discovery or mere data

The Copyright Society of Tanzania (COSOTA) established under section 46 of the Act is the body which is responsible for the collection and distribution of royalties to the copyright owner, promoting and protecting the interest of performance, translators and publishers, to maintain registered works, and to prevent piracy.

Procedures for Registration for Copyright

Filling of an application for registration of copyright, in a prescribed form with COSOTA, the applicant must attach the following documents

1. Two copies of the copyrighted work.
2. Two passport-size photographs of the applicant.
3. A copy of the applicant’s passport, national identity card or birth certificate.
4. A copy of the passport, National identity card or birth certificate of the applicant’s next of kin. A copy of any agreement or other document evidence other rights holder’s contribution or for creator of any copyright idea under the group or company must show the relation in a written form between the declaration and the group/company.
5. Names of group members and representatives if it is a group or band or choir.
6. A declaration if the creator of any copyright idea is under the group or company

Enjoyment of the Right to Copyright

Copyright owners will enjoy all the exclusive rights provided that a work is registered for copyright, these include;

1. The rights of reproduction,
2. Distribution and rental of the original work.
3. Public exhibition and performance.
4. Translation, adaption, broadcasting and other communication.

The duration under which the protection of copyright in is given differs depending on the type of workas identified herein below;

1. Literary, artistic, and musical works are protected for a life time of the author plus fifty (50) year from the end year of the year which the author dies
2. Cinematographic works, sound recordingand broadcasts are protected for fifty years from the end of the year  which the work was first published or made available to the public

Infringement of copyright and what to do;

Copyright protection is automatic i.e. it not mandatory to register for copyright, however the registration for copyright is highly recommended as it enables the author to enjoy legal protection, a copyright certificate serves as evidence in case of any dispute or infringement, When a person who is not authorized by the owner of the work publish, print, or perform the copyright of the author is deemed to have infringed a copyright and the only remedies available under the Act is to institute a civil or criminal proceeding against the infringer before the court of law (High Court) in order to get damages/compensation of such infringement.

Hopeful this information is useful, do not hesitate to contact or reach out to us for any further support and guidance as we will be happy and ready to assist.