Zimbabwe Establishes An Intellectual Property Tribunal, As A Special Division Of High Court

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KAMPALA, Uganda — In what is seen as a significant achievement in the making of history of intellectual property law, the Government of Zimbabwe has instituted and operationalised an Intellectual Property Tribunal, with the mandate to speedily preside over all IP matters, disputes, infringements, passing off and other related issues. The Tribunal recently heard its first case.

This new Intellectual Property Tribunal (IPT) was created after amending sections of the High Court Act, the Magistrates Court Act and the Small Claims Court Act with a view to speed up and to facilitate the settlement of disputes, particularly disputes of a commercial nature.

The amendments have been gazetted in the Judicial Laws Amendment [pdf] (Ease of Settling Commercial and Other Disputes) Act 7 of 2017, which was officially promulgated into law in June 2017.

The purpose of this Act is to create separate divisions of the High Court which specialise in the adjudication of cases in particular areas of law. In this regard, the Act has established the IPT as a specialized division of the High Court.

Section 171 of the Zimbabwe Constitution provides that an Act of Parliament may provide for the creation of specialised divisions of the High Court, which division must be able to exercise the general jurisdiction of the High Court in any matter that is before it.

The Office of the Controller of Patents, Trademarks, Industrial Designs and Copyright and Neighboring Rights is responsible for the administration of intellectual property rights in Zimbabwe.

According to Zimbabwe Constitution, specialised divisions of the High Court may be created to specialise in the adjudication of cases in the field of commercial law, family law, mining law, electoral law, revenue law, the law of deceased and insolvent estates or any other specialised field of law.

The Judge President shall assign at least two judges of the High Court to be judges of a specialised division of the High Court for such period as the Judge President shall specify.

The president of the Tribunal may appoint two people who have knowledge or experience in IP issues to act as assessors in determining any matter before the IPT.

According to the Tribunal Act, the proceedings of the Tribunal shall be conducted in public.

The Intellectual Property Tribunal Act, 2001 had been brought into operation by statutory instruments in September 2010. That was after a period of nine years when that legislation lacked the regulations to operationalise it.

First Case Underway

Despite the existence of this Tribunal on paper, through a statute, 8 years later, the Tribunal has now been constituted. It sat for the first time at the end of February.

The tribunal is now deliberating over a trademark case, which itself has been waiting for 2 years to be heard. This first case before the tribunal is a trademark opposition case, deliberating over a decision made by the Controller of Patents, Trademarks, Industrial Designs and Copyright and Neighboring Rights.

The ruling of the Tribunal will mark a judicial precedent of the first appeal case of the IP Tribunal in Zimbabwe.

The IPT has jurisdiction to hear appeals from the Registrars and other contentious matters under the several intellectual property laws, namely the Industrial Designs Act, the Patents Act, the Trade Marks Act, the Copyright and Neighbouring Rights Act, the Geographical Indications Act and the Integrated Circuit Layout-Designs Act.

The IPT does not have jurisdiction to try criminal cases. The criminal cases remain in the hands of the High Court and the Magistrates’ Court. Appeals from the IPT are made directly to the Supreme Court.

General enforcement of IP rights, especially those aspects of enforcement that relate to criminal matters, is provided for in the Constitution of Zimbabwe, the Customs and Excise Act, the Criminal Procedure and Evidence Act, the Magistrates Court, High Court and Supreme Court Acts and Rules.

The country is also signatory to a number of international treaties and conventions.

According to a Study on Specialized Intellectual Property Courts [pdf] by the International Intellectual Property Institute (IIPI) and the United States Patent and Trademark Office (USPTO), the benefits of specialised intellectual property courts include: Creation of subject matter experts/expertise; Effectiveness of decision; Ability to create special court procedures to enhance efficiency and accuracy; and Consistency and predictability of case outcomes.

The study lists other benefits as: Progressive development or dynamism; and that government investment in specialised intellectual property courts signals to the public that intellectual property rights will be enforced. Although IP disputes are often associated with the enforcement of IP rights against piracy and counterfeiting activities (especially in the areas of copyright and trademarks), the reality of IP disputes is far more complex.

“Because justice delayed is justice denied, the ZIPO expects to have all IP matters referred to the IPT processed in a reasonable time frame. Whilst there will be minimal room for explained undue delays, it is hoped that the Tribunal will set itself achievable deadlines to finalize matters advanced before it,” states part of a response obtained from Zimbabwe Intellectual Property Office (ZIPO).

However, in line with the President of Zimbabwe`s Rapid Results Approach to all Government work, the ZIPO also expects the clearing of all outstanding cases in the Court in a rapid but correct manner.

“Requests for expert training in IP for the prosecutors and judges cannot be avoided, both national, regional and international,” the response adds. “It must be certain that IP precedents from presided over Zimbabwean cases will be set.”

 

Image Credits: Zimbabwe Department of Deeds Companies & Intellectual Property