Month: October 2022

INDUSTRIAL DESIGNS

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WHAT IS AN INDUSTRIAL DESIGN?

In terms of the Industrial Designs Act [Chapter 26:02] Section 2 hereinafter referred to as “the Act” a design is defined as

“design” means

Features of shape, configuration, pattern or ornamentation applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged solely by the eye, but does not include a method or principle of construction or features of shape or configuration which are dictated solely by the function which the article to be made in that shape or configuration has to perform”

Put simply an industrial design refers to the outward or physical appearance of an object or article.

DESIGNS THAT ARE REGISTRABLE

In terms of Section 6(2) of the Act, it is stated that for a design to be deemed registrable it must be new or original.

WHAT DEEMS WHETHER A DESIGN IS NEW OR ORIGINAL?

Section 6(3) of the Act highlights that a design shall be said to be new or original where on or before the date of application for registration of the design a design which differs from such design only in immaterial details or in features which are variants commonly used in the trade, was not

  • known or used in Zimbabwe by anyone other than the applicant, his agent or any

person from or through whom the applicant has derived his right or title: Provided that secret knowledge or secret user otherwise than on a commercial scale shall be disregarded for the purposes of this paragraph; or

 (b) described or illustrated in a publication, whether in or outside Zimbabwe; or

(c) registered in Zimbabwe; or

 (d) the subject of an application for the registration of a design in Zimbabwe or of an    

      application in a Convention country for the registration of a design which has    

     subsequently been registered in Zimbabwe in accordance with the provisions of section    

     thirteen

 

OWNER OF AN INDUSTRIAL DESIGN

The author of the design is normally viewed as the owner (proprietor) however this is subject to certain exceptions such as where the author designs it for someone else in exchange for a valuable consideration ( usually money) then the other person (that pays the sum of money) is referred to as the owner(proprietor) of the design.

The Act further goes on to highlight that where a design or the right to apply the design to any article becomes vested in someone else other than the owner and the other party shall be regarded as the proprietor of the design for a specific design or the proprietor of the design as the case may be.

WHERE CAN AN INDUSTRIAL DESIGN BE REGISTERED?

At ZIPO (Zimbabwe Intellectual Property Office) ARIPO (African Regional Intellectual Property Office).

WHO CAN APPLY FOR THE REGISTRATION OF A DESIGN

  1. The owner (proprietor) of the design.
  2. An assignee (a person to whom a right is transferred by the proprietor) who can do such individually or jointly.

An assignee in terms of the Act is defined as

“assignee”, in relation to a design, means— (a) a person who has derived his title to the design for Zimbabwe directly or indirectly from the proprietor thereof or from the proprietor’s assignee; or (b) the legal representative of a person referred to in paragraph (a);

WHERE AN APPLICATION IS SUCCESSFUL

The proprietor is issued with a certificate of registration in relation to the design

RIGHTS THAT A PROPRIETOR ENJOYS

The proprietor enjoys the exclusive right to make, import or export for sale or for the purposes of any trade or business or to sell, hire or offer for sale or hire any article in respect of which the design is registered.

DURATION OF RIGHTS (VESTED IN PROPRIETOR)

One may note that the proprietor may enjoy rights that stem from the registration of an industrial design for a period of 10 (ten) years, the registration may be renewed after the lapse of the aforementioned period for a further period of 5 (five) years. All in all one may enjoy rights stemming from the registration of the design for a period of no more than 15 years.

REMEDIES AVAILABLE to PROPRIETOR UPON INFGRINGEMENT

  1. Damages
  2. Attachment
  3. Rendering of account
  4. Delivery of infringing copies or articles used or intended to be used for making infringing copies or otherwise amongst others.

If you are looking to register your design, please contact our team of Intellectual Property Attorneys that are ready to assist.

This is for general information purposes only – Seek the advice of a Lawyer

 

LEGAL CAPACITY

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LOCUS STANDI IN JUDICIO

This term refers to the legal capacity that one has to execute a legal act such as to sue or be sued as well as defend an action where the need arises amongst others. There are group of people that may not have the requisite capacity but this does not mean that they cannot be represented. Usually where one is above the age of 18 they have locus standi in judicio however this is not always the case and the exception are listed below. The classes of individuals listed below do NOT have legal capacity:

  1. Minors – a minor is a boy or girl child that is below the age of 18 and for purposes of legal proceedings they do not have capacity to contract amongst other factors. The guardian of the minor acts on behalf of the minor and does that which is in the best interests of the minor child to protect their interests and or uphold them. The mother and father of the child are considered the minor’s natural guardian/s. In some instances, a third party can be appointed as guardian of the minor child despite the minor’s parent/s being alive. Where the minor does not have a guardian an application can be made to the courts for the appointment of a curator ad litem who will act for the child.
  2. Insolvents – this is where the individual’s assets are not enough to satisfy their liabilities, the person has more liabilities than assets and as such usually, a curator is appointed to act on their behalf, for the purposes of managing their financial affairs.
  3. Mentally ill individuals (insane) – where one suffers from mental illness they are not in the proper state of mind to understand the nature of and legal implications of a legal act. They do not have an appreciation for the duties and obligations they are committing to and because of such there cannot be a consensus between the parties rendering any contracts entered into with insane individuals void.
  4. Prodigal –. This is an individual who has had their capacity to manage their affairs determined by the court as a result of their propensity to waste money. Parties close to such an individual can move to have a curator appointed and from the time the application is granted the curator acts on behalf of the prodigal, if the prodigal engages in any contracts and the curator does not ratify such then the contract is rendered void.
  5. Intoxicated persons – where an individual enters into an agreement while they are under the influence of drugs or alcohol that contract is held to be void as the individual is said to lack the requisite capacity to appreciate the nature of the agreement.

This is for general information purposes only

REAL RIGHTS IN A MATRIMONIAL PROPERTY

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 CASE ANALYSIS – JANE MUSINDO & ANOR VERSUS LEOCADIA KEREKE (NEE MUROIWA) HMA 32/22

This was recently heard appeal from the judgement handed down in the Magistrates Court in Bikita. The case before the court was one for the eviction of a “small house” (1st Appellant) by the 2nd Respondent’s wife “main house”. The facts of the case shall be discussed briefly below.

The 2nd Appellant and Respondent were married in terms of the Marriage Act [Chapter 5:11] formerly known as the [Chapter 37] marriage which provided for one man and one wife in the year 1966. Their union was blessed with children who have all attained majority status. The 2nd Appellant during the course of his marriage had been unfaithful in the union for a number of times.

The Appellants were involved in an open adulterous affair and sometime in 2015, 1st Appellant moved into the 2nd Appellants and Respondents matrimonial homestead called Kureke homestead were she erected a structure of her own and she lived there with the 2nd Respondent. From the onset of this arrangement no abuse or bad blood was alleged or spoken of – however the Respondent alleges that at some point there was abuse became unbearable to the extent that she, on numerous occasions, had to leave her home to live with her relatives.

The Respondent after amendment of her summons in the Magistrates Court sought

  • The eviction of the 1st Appellant from Kereke homestead and
  • An interdict restraining 1st appellant from continuing with her adulterous relationship with the 2nd

The 1ST Appellant raised the points that the Respondent had no locus standi in judicio (legal standing) as well as that the wife had no real rights in respect of the property rather she had personal rights which were enforceable against her husband. The Respondent highlighted that by virtue of her marriage to the 2nd Appellant she had the right to institute the action. The court accepted the Respondent’s position and granted the order as sought above.

The appellants aggrieved by the decision of the court approached the High Court. On appeal the 1st appellant averred that she was married to the 2nd appellant despite him being married to the Respondent. She further highlighted that she constructed a house on the premises and stayed there by virtue of the invitation extended to her by the 2nd Appellant who was opposed to her eviction from the homestead as he considered her (1st Appellant) his wife. She further denied abusing the Respondent in any manner. The appellants’ grounds of appeal were as follows:

Grounds of Appeal

  1. The court a quo erred in granting an order for eviction of the 1st appellant from the Kereke homestead when the respondent had dismally failed to establish locus standi for eviction proceedings over an immovable property that is not registered in her name.
  2. The learned magistrate misdirected himself by delving into issues of adultery and sanctity of marriages solemnised in terms of [Chapter 5:11] which issues had not been placed before the court for determination. The court went on a frolic of its own and failed to make a determination on the issues which had been placed before it.
  3. The court a quo erred by failing to appreciate that the 1st appellant should not be evicted from the homestead of the 2nd appellant as she was residing there under his consent.

With regard to the first ground of appeal the court stated that the court had erred by looking at the issues of adultery and sanctity of marriage as they were not the matters that were set to be determined by the honourable court.

With the second point of appeal regarding locus standi the court cited the case of Maponga v Maponga & others 2004 (1) ZLR 63 (H) at 68D-E MAKARAU J held;

“It would appear to me in summary that the status of a wife does not grant her much in terms of rights to the immovable property that belongs to her husband. She only has limited rights to the matrimonial home that she and her husband set up. Those rights are personal against the husband and can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. The husband can literally sell the roof from above her head if he does so to a third party who has no notice of the wife’s claim.”

The Respondent (wife in this instance) has limited rights in respect of the Kureka homestead despite it being the matrimonial home as she has personal rights, which can only be exercised against her husband. Further the first Appellant being there by virtue of an invitation extended by the 2nd Appellant who has real rights in respect of the property is entitled to continue living at the homestead. The court cited the below listed constitutional provisions when highlighting the need for the alignment of property laws with the provisions of the Constitution;

25 Protection of the family

The State and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavour, within the limits of the resources available to them, to adopt measures for—

(a)  the provision of care and assistance to mothers, fathers and other family members who have charge of children; and

(b)  the prevention of domestic violence.

26 Marriage

The State must take appropriate measures to ensure that—

(c)  there is equality of rights and obligations of spouses during marriage and at its dissolution;

56 Equality and non-discrimination

  • All persons are equal before the law and have the right to equal protection and benefit of the law

The Court in addressing the position of locus standi cited the constitutional provisions above and how they should align with the property laws, whilst emphasising that they are trumped by property rights. It was then found that the court erred in its decision as the Respondent failed to satisfy the foundation of her right to institute eviction proceedings (real rights in the property).

In conclusion the court upheld the appeal, preventing the 1st Appellant from being evicted, and the Respondent being ordered to pay the 1st Appellant’s costs on an attorney client scale.

This article is for general information purposes only – seek the advice of a Lawyer