A serious issue has arisen around the system of the declaration of intent to use (DIU) in Mozambique.
In Mozambique, the proprietor of a trade mark registration needs to file a DIU every five years. It is important to understand that no actual use needs to be established, and that all the proprietor needs to do is declare its intention to use the trade mark. If the proprietor fails to file a DIU the registration remains valid, but it becomes unenforceable and remains unenforceable until such time as a DIU is eventually filed (if the DIU is filed out of time, actual use must be proved).
Worryingly, a practice seems to have arisen whereby local companies are applying for the cancellation of registrations for which no DIU has been filed, seemingly with a view to acquiring the trade marks. In many cases the proprietors of these trade marks do not even know that this is happening because they are not notified by the registry.
To add to the confusion, there is uncertainty as to the dates. The legislation states that, in the case of a national registration, the five-year period is calculated from the filing date, whereas in the case of an international registration (IR) it is calculated from the international registration date. However, the registry has issued a notice purporting to change the start date for IRs to the date of notification of the IR in Mozambique, something that it probably does not have the power to do.
Trade mark proprietors should therefore not avoid filing DIUs – companies that have not used their trade marks are sometimes wary of filing DIUs, but it is important to remember that the obligation is simply to file a statement of intent, not to establish actual use. Failure to file a DIU does render the registration unenforceable, and it may result in its cancellation.
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