Trademarks

The primary legislation governing trademarks in Angola is Law No. 3/92, dated 28 February 1992, which came into force on 29 March 1992. This Law was published in the Diário da República No. 9- I Série of 28 February 1992.

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• the Convention Establishing the World Intellectual Property Organization (WIPO), since 15 April 1985;
• the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), since 23 November 1996;
• the Paris Convention for the Protection of Industrial Property, Stockholm Act, since 27 December 2007 (Paris Convention).

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The government body that regulates trademark law is parliament.

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Any person (individual, firm or body corporate) that has a legitimate interest may apply for the registration of a mark. Foreign nationals may apply for registration provided that a proof of their activity in their home country is produced upon filing the application in Angola. This proof may consist of a certificate of incorporation of the applicant or extract from the Commercial Register.

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The law defines a trademark as any visible sign used to distinguish the products or services of one person from the products or services of another person. The following may be a mark: surname, geographical name, ‘fancy words’, monograms, emblems, figures, digits, labels, combinations of colours, drawings, photographs, stamps and in general, all material visible signs.

The following are not registrable:

• marks containing false indications or being likely to deceive the public with regard to the nature, characteristics, or utility of the products or services for which the mark is to be used;
• marks containing false indications as to the geographical, manufacturing plant, workshop, or business origin of the goods or services concerned;
• insignia, flags, coats of arms, or official seals adopted by the state, an international organisation, or any other public body whether national or foreign, without the consent of the competent authorities;
• firm names, business names, or insignia not owned by the applicant for registration or the use of which the applicant is not authorised;
• marks being an entire or partial reproduction or imitation of a mark previously registered in the name of another party for the same or similar goods or services, if this may lead to confusion or error in the market;
• expressions and designs that are contrary to good morals, law, or public policy; and
• the name or portrait of a person without such person’s consent.

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A provisional protection is given to the trademark application. The total protection is given as from the grant of the trademark registration. Thus, the trademark rights are not established without registration.

Only registration confers proprietary rights. The effect of registration therefore is attributive of ownership.

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This matter is applicable as per the Paris Convention.

The owner of a mark that is well known in Angola, even if it is not registered, may oppose the registration of an identical or similar mark for the same or similar goods or services, provided that he or she applies for registration of the mark. Marks having a reputation in Angola are further protected by this, since the owners of such a mark may oppose the registration of an identical or similar mark even if registration is applied for in respect of different goods or services, if use of the mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the renowned mark.

The evidences that are required are, for example, market studies that reveal the reputation of the mark to the relevant public, costs with marketing companies and sales volume, as other factors relevant to the reputation of the mark.

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Only registration confers exclusive rights to a mark.

Only registration confers proprietary rights. The effect of registration therefore is attributive of ownership.

The following acts done without the consent of the owner of a registered mark are deemed infringement:

• use in the course of trade in Angola of any sign that is identical or confusingly similar to the registered mark for goods or services being identical or similar to those for which the mark is registered; and
• use in the course of trade in Angola of any sign that, owing to the identity or similarity of that sign and the mark or the affinity between the goods or services, creates in the consumer’s mind a risk of confusion, including the risk of association of the sign with the mark.

The exclusive right to a mark does not include the right for the owner to prevent a third party from using in the course of trade his or her own name or address, or any indication concerning the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of rendering of the services, or any other characteristics of goods or services, or even the mark itself if this is necessary to indicate the intended purpose of a product or service, in particular as an accessory or spare part, provided that in any such case such use is in accordance with honest practices and good customs in industrial and commercial matters.

Use of a protected mark for goods that have been brought into the trade under the mark by the owner or with his or her consent in Angola is not considered infringement, unless there are legitimate grounds justifying that the owner of the mark opposes the further commercialisation of the goods; in particular, if the condition of the goods has been altered or deteriorated after they were brought into the trade.

The following acts done by a person with the intention to cause damages or to obtain illegal benefit shall be deemed a criminal offence punishable by imprisonment of up to three months or a fine:

• entirely or partially counterfeiting or in any way reproducing a registered mark without the consent of its owner;
• imitating a registered mark, either entirely or in any of its characteristic elements;
• using counterfeit or imitated marks;
• using, infringing or imitating a well-known mark or a highly renowned mark whose registration has been applied for in Angola;
• displaying on his or her products a registered mark belonging to another party; and
• using his or her own registered mark on products belonging to other parties in such way as to deceive the customer with regard to the origin of the products.

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The requirements and related documents for the filing of a trademark application in Angola are as follows:

• the applicant’s full name, nationality, occupation, address or place of business;
• a copy of the mark (in the case of a device mark);
• a certified copy of the home application, if a priority is claimed;
• a list of goods and services;
• power of attorney signed by the applicant, notarised by notary and legalised by an Angolan consulate; and
• an extract from the commercial registry of the applicant to demonstrate the activity of the company, duly legalised by an Angolan consulate.

All documents must be translated into Portuguese and the related translation must also be legalised by the Angolan consulate located in the country of the applicant.

Electronic filing is not available. Official trademark searches are available but not required before filing.

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It usually takes from four to six months to obtain the publication of the trademark application. Owing to the lack of human and technical resources, the administrative procedure of the Angolan National Institute of Industrial Property (PTMO) takes more time than usual. Hence, if no opposition is filed against the trademark application, it currently takes a few years to obtain registration of a trademark.

The registration formally comes into effect with the granting decision of the applied trademark.

The costs of obtaining a trademark registration are given upon request.

The advanced payment of the granting fees before a decision is given normally has the effect of increasing the estimated time for receiving a registration.

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The applicable classification is the eleventh edition of the International Classification of Goods and Services under the Nice Agreement.

In Angola, there is no multi-class registration system. Therefore, an application should be filed for each class of products and services.

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Applications are examined only as to compliance with the formal requirements. There is no examination for potential conflicts with other trademarks.

Letters of consent are accepted. It is possible to file an appeal against a decision granted by the Angolan PTMO.

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Only registered trademarks are obliged to be used. Angolan IP law (Law No. 3/92, dated 28 February 1992, which came into force on 29 March 1992) does not foresee that prior to registration there is an obligation to use the trademarks.

The registration of a mark may be cancelled if the mark is not used and there are no legitimate reasons for the non-use. At present, the law does not specify the period of time of non-use of the mark that may lead to cancellation.

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The IP law does not foresee any rule in what concerns the use of a word or symbol to indicate trademark use or registration.

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There is a judicial appeal for the decision of the PTMO that determines the refusal of a trademark. The IP Code does not specify the deadline for this judicial proceeding.

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When a trademark application is published in the Industrial Property Official Bulletin, a third party may file an opposition against said trademark application.

The opposition or the cancellation of a trademark can be requested in the following circumstances:

• marks containing false indications or being apt to deceive the public with regard to the nature, characteristics, or utility of the products or services for which the mark is to be used;
• marks containing false indications as to the geographical, manufacturing plant, workshop or business origin of the goods or services concerned;
• insignia, flags, coats of arms or official seals adopted by the state, an international organisation or any other public body whether national or foreign, without the consent of the competent authorities;
• firm names, business names or insignia not owned by the applicant for registration or the use of which the applicant is not authorised;
• marks being an entire or partial reproduction or imitation of a mark previously registered in the name of another party for the same or similar goods or services, if this may lead to confusion or error in the market;
• expressions and designs that are contrary to good morals, law or public policy; and
• the name or portrait of a person without such person’s consent.

A brand owner that does not yet have its trademark protected in Angola cannot oppose a bad-faith application.

Costs associated with a third-party opposition or cancellation proceeding are given upon request.

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The duration of registration of a trademark is 10 years from the application date and is indefinitely renewable for further 10-year periods.

The registration of a mark may be cancelled if the mark is not used and there are no legitimate excuses for the non-use. At present, the law does not specify the period of time of non-use of the mark that may lead to cancellation.

The evidence of use can be, for example, original or certified copies of invoices proving the use of the products of said trademarks in Angola, booklets and pamphlets distributed in this country or local publicity.

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The procedure for surrendering a trademark registration is the filing of a formal request at the Angolan Institute for Industrial Property (IAPI) with the corresponding power of attorney, duly notarised and legalised in the Angola consulate of the applicant.

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Trademarks can be also protected as copyrights or designs in case the corresponding requirements are fulfilled.

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Protection can be given to trademarks online or to domain names by the unfair competition rules.

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A licence may be recorded against a mark in Angola through the filing of the supporting document to be recorded at the IAPI.

If the said recordal is not filed, the licence is not enforceable against third parties.

The holder of the written registration agreement can grant a partial or total licence to operate in parts of or throughout the country.

All the licence agreement should provide for is effective control by the licensor of the quality of products or services of the licensee in respect of which the mark is used, under penalty of nullity.

The licensee, unless otherwise stated in the licence agreement, enjoys all the powers assigned to the holder of the trademark registration.

The right arising from the operating licence cannot be alienated without the express written permission of the owner of the trademark registration, unless otherwise established in the licence agreement.

Recordation is a prerequisite at the time that licensees exercise their rights against third parties.

Notarisation and legalisation at the Angolan consulate of the country of origin of the applicant is also required.

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A registered mark may be assigned with or without the goodwill of the business. An assignment must be registered to be effective against third parties.

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The requirements for recordal of an assignment are the following:

• deed of assignment in Portuguese, signed by the assignor and the assignee, and notarised and legalised by the consulate of Angola; and
• power of attorney in Portuguese, signed by the assignee and notarised and legalised by the consulate of Angola.

The procedures that are applied for the recordal of an assignment are the filing of this document at the IAPI.

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The recordal of the assignment is required in order to be enforceable against third parties.

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Angolan IP law does not establish the procedures of the recordal of the security interests. However, the PTMO recognises them and they must be legalised by the Angolan consulate. They must be recorded for purposes of validity in Angola.

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There is no legislation on enforcement proceedings for IP rights in Angola.

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Only registration confers exclusive rights to a mark.

The following acts done without the consent of the owner of a registered mark are deemed infringement:

• use in the course of trade in Angola of any sign that is identical or confusingly similar to the registered mark for goods or services being identical or similar to those for which the mark is registered; and
• use in the course of trade in Angola of any sign that, owing to the identity or similarity of that sign and the mark or the affinity between the goods or services, creates in the consumer’s mind a risk of confusion, including the risk of association of the sign with the mark.

The exclusive right to a mark does not include the right for the owner to prevent a third party from using in the course of trade his or her own name or address, or any indication concerning the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of rendering of the services, or any other characteristics of goods or services, or even the mark itself if this is necessary to indicate the intended purpose of a product or service, in particular as an accessory or spare part, provided that in any such case such use is in accordance with honest practices and good customs in industrial and commercial matters.

Not considered as infringement is use of a protected mark for goods that have been brought into the trade under the mark by the owner or with his or her consent in Angola, unless there are legitimate grounds that justify that the owner of the mark opposes the further commercialisation of the goods, in particular, if the condition of the goods has been altered or deteriorated after they were brought into the trade.

Only registration confers proprietary rights. The effect of registration therefore is attributive of ownership.

Angolan IP law does not establish the infringement proceeding.

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The burden of proof lies with the plaintiff, who must prove that its mark has been infringed.

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Both the trademark owner and the licensee may seek remedies. The trademark owner must have the mark registered before the Angolan Trademarks Office and the licensee can only intervene if the registered user agreement (licence to use) is recorded before the office.

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Border enforcement measures can be conducted by the Angolan Customs Authorities to halt the import and export of infringing goods.

Only activities that take place in Angolan territory may be taken into account. However, this is not applicable to goods made outside the country from the moment that they are imported into Angola.

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Adverse or third parties (including state entities) may be required to submit documents or exhibit goods. If they resist, a court order may be sought.

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Unfortunately, there is no typical time frame for infringement or dilution actions. They are lengthy and can last for years.

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There is no time limit for filing an infringement action, that is, the infringement action can be filed until the infringement is occurring.

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There is no schedule of official fees published for infringement or dilution actions in Angola.

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Decisions regarding an infringement or dilution action can be appealed against to the competent court.

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The defendant or alleged infringer has the legal right to participate in the proceeding by responding to the complaint and submitting evidence.

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The Angolan IP law contains provisions regarding the penalties imposed on an infringer, but is silent regarding the apportionment of monetary relief. Injunctive relief is available permanently if there is an immediate danger to the complainant.

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ADR techniques are not available in Angola.

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Key developments of the past year

39 Are there any emerging trends, notable court rulings, or hot topics in the law of trademark infringement or dilution in your jurisdiction?

None.

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