Intellectual property law deals with the protection of creativity and innovation. Zimbabwean law recognises a number of intellectual property rights that require formal registration in the Zimbabwe Intellectual Property Office (ZIPO) or the African Regional Intellectual Property Organisation (ARIPO) or under the Madrid International Trademark System (Madrid System) before such rights can be protected and enforced against third parties in Zimbabwe.
Zimbabwe recognises and protects the following intellectual property:
- Copyright and Neighbouring Rights
- Industrial Designs
- Integrated Circuit Lay-Out Designs
- Geographical Indications
- Patents
- Plant Breeders Rights
- Trade Marks
The legislation governing the different categories of intellectual property defines:
- The nature and quality of work that qualifies for classification as intellectual property under that particular statute.
- The person (be it an individual or a corporate body or the State or a designated international organisation) that is held to be the creator or innovator of that piece of work.
- The person who owns the intellectual property rights in the work.
- The person who can apply for registration of the intellectual property rights.
- The requirements for registration, protection and enforceability of the intellectual property rights.
- The legal consequences of registration and the remedies available to an owner of intellectual property.
- The territory in which the registered intellectual property rights can be protected and enforced.
- The manner in which existing or future intellectual property rights can be transmitted by sale, assignment, license, inheritance or operation of law.
- The manner in which intellectual property rights can be encumbered.
Copyright and Neighbouring Rights
The Copyright and Neighbouring Rights Act [Chapter 26:05] (Copyright Act) defines the type of works that are eligible for copyright protection in Zimbabwe as well as the works that qualify for protection as performers’ rights, works of folklore and moral rights. Works that are eligible for copyright protection include literary works, artistic works, sound recordings and audio-visual works. The Copyright Act makes a distinction between the creation of a copyright work and the ownership of the copyright in a work. In certain instances, the authorship of a copyright work may not coincide with the ownership of the copyright in that work. An example is a journalist who writes news articles for her employer for publication.
The Copyright Act also protects performance rights, recording rights and moral rights. Performance rights relate to the rights that subsist in performances of dramatic (theatrical) or musical works, the reading or recitation of a literary work, the performance of a variety of acts and performances of folklore.
Moral rights refer to the rights of authors and directors to be identified as the authors of works protected by copyright and the directors of audio visual works protected by copyright. Moral rights allow authors and directors to prohibit the commercial publication or any third party treatment of a copyright work in a manner that amounts to distortion or mutilation of the original work or is otherwise prejudicial to the reputation of its creator.
Industrial Designs
The Industrial Designs Act [Chapter 26:02] protects those features of shape, configuration, pattern or ornamentation which when applied to an article by any industrial process or means make a finished article aesthetically pleasing. The creator or author of an industrial design is treated as the proprietor of the design. However, if the design was made by the author for another person for valuable consideration, whether as an employee or as a commissioned work, that other person is held to be the proprietor of the industrial design.
Integrated Circuit-Layout Designs
The Integrated Circuit-Layout Designs Act [Chapter 26:07] provides for the registration and protection of integrated circuit-layout designs. Integrated circuit-layout designs relate to the functional design of the three-dimensional disposition of all or some of the electrical, electromagnetic or optical elements and circuitry of an integrated circuit, and include a design of an integrated circuit that is intended for manufacture.
The legal consequence of registration of a layout design is that third parties are prohibited from reproducing the whole or any part of the layout design. Third parties are also prohibited from commercially importing, selling or distributing the design or an integrated circuit that incorporates the design or publishing an article that incorporates the design.
Geographical Indications
The Geographical Indications Act [Chapter 26:06] prohibits the sale, importation, export and manufacture of any product to which a misleading geographical indication has been applied. Geographical indications identify a product as originating in a particular area, where some quality, reputation or other characteristic of the product is essentially attributable to its geographical origin. A geographical indication is treated as misleading if it suggests that the product originates in an area other than its true area of origin or if it misleads the public as to the area of origin of the product. For example champagne must be produced in the Champagne region of France.
Patents
The Patents Act [Chapter 26:03] provides for registration and protection of patents. A patent is a legal document granted by a Patent Office for the protection of inventions that are new, inventive and industrially applicable. The essential features of the invention must not have been published in any language, whether orally or in written form, used or known prior to the date of the application for a patent. The technical solution for the problem or need for which the invention was identified and created should not have been obvious to a person skilled in the field of the technology of the invention. The invention must be useful and capable of carrying out its function in the manner described in the patent application.
Patents are registrable for inventions in any field of technology including improvements on prior inventions. Patents may relate to articles of manufacture, chemical compositions or compounds and mechanical devices. Patents are capable of transmission by assignment, licence and operation of law. They can be mortgaged and pledged.
Plant Breeders Rights
The Plant Breeders Rights Act [Chapter 18:16 provides for the registration and protection of rights in respect of certain varieties of plants. There is a Registrar of Plant Breeders Rights. Plant breeders’ rights provide formal protection for new varieties of plants. Examples of plants for which plant breeders rights may be registered include barley, bean, citrus, coffee, cotton, maize, millet, wheat, potato and tobacco. A plant variety is treated as new if prior to the date of the application for registration in Zimbabwe it was not sold or marketed in Zimbabwe. The plant variety must be distinct from any other variety in the public domain at the date of the application, uniform in its relevant characteristics and stable.
An application for plant breeders rights may be made by the breeder of the new variety concerned. The rights granted to the holder of plant breeders rights can be assigned, licensed, mortgaged, pledged and otherwise transmitted by operation of law.
Trade Marks
The Trade Marks Act [Chapter 26:04] provides for the registration of trade marks as well as defensive and collective marks. A mark is any sign capable of graphic representation and capable of distinguishing goods or services of one undertaking from another. The requirement for registration of a mark as a trade mark is that it must be distinctive or capable of becoming distinctive.
Trade marks are registrable for goods and services. There are 34 goods classes and 9 service classes. In general, the designer or author of a trade mark is the proprietor thereof unless such mark has been created under the direction or control of a third party then such party shall be the owner.
Trade marks are capable of transmission by assignment, licence and operation of law. They can be mortgaged and pledged. Registration prohibits third parties from making use of identical marks or confusingly similar marks.
Trade marks are territorial and are only recognised and enforced in countries in which they are registered, used and maintained. Trade marks may be registered in respect of Zimbabwe, in the national office (ZIPO) or in ARIPO under the Banjul Protocol on Marks or in the World Intellectual Property Office under the Madrid System.
Conclusion
It is therefore important for owners of intellectual property to ensure that they register their rights in order to be protected more easily in case of infringement. Registration also enables an owner to enforce her/his rights against third parties.
