Cancelling a trademark for non-use in Africa
The "non-use of trademarks" is a legal concept that pertains to not using a registered trademark for an extended period after its registration.
This mechanism is justified to prevent trademarks from being registered and maintained solely for speculative or strategic purposes without genuine commercial intent. It aims to ensure fair competition and the availability of trademarks for genuine and commercial use while discouraging the creation of a "trademark graveyard," as referenced by Professor Remo Franceschelli.
In such cases, numerous trademarks are registered but left inactive, often to block competitors, and this practice can be detrimental to fair competition and innovation.
To address this, many trademark systems require continuous use of a trademark after registration, and if the trademark owner fails to use it within a specified period, typically a few years, the trademark may be challenged and eventually cancelled.
This helps maintain the integrity of the trademark system by ensuring trademarks are genuinely used for commercial purposes, rather than being held as inactive assets that impede competition.
Despite the principles of non-use cancellation being globally harmonised, there are specific steps to be taken, differing from one jurisdiction to another that shall be mentioned below with particular emphasis on the African continent.
Notwithstanding, when pursuing the cancellation, there are typically various types of documentation to support it. Here is a summary of the general documentation that may be necessary:
- Evidence of Non-Use: evidence that the trademark owner has not actively used the trademark in the relevant jurisdiction such as documentation that the trademark has not been used in advertising, proof that it is not in use on products or services and sales records.
- Trademark registration i
