Seychelles
Law
- Industrial Property Act no 7 of 2014
- Industrial Property (Mark) Regulations, 2014
- Industrial Property (Geographical Indicators) Regulations, 2014
Seychelles is a member of the Paris Convention.
Trade mark protection
Trade mark protection may be obtained by way of a national filing in Seychelles; or by way of a convention application claiming the priority of an earlier application in a convention country.
Provision is made for the registration of trade marks for goods and services; for three-dimensional marks, collective marks, certification marks, geographical indicators and trade names.
Protection of well-known marks
The Industrial Property Act provides that the owner of an unregistered mark that is well-known in Seychelles has the exclusive right to prevent unauthorised use in the course of trade of any sign that is identical with or similar to the unregistered well-known mark for goods and services for which the unregistered well-known mark is used provided that such use is likely to confuse the public. A trade mark may also not be registered if it constitutes a reproduction, an imitation, or translation of a mark that is well-known in Seychelles where the goods or services are identical or similar, and there is a likelihood of confusion, or where the goods or services are dissimilar but use would indicate a connection with the owner of the earlier registered well-known mark and the interests of the owner of the earlier registered well-known mark are likely to be damaged by such use.
Advantages of trade mark registration
The advantage of the registration of a trade mark is that the registered owner gets the exclusive right to use, and to authorise others to use, the registered mark. The owner is also entitled to institute proceedings and recover damages for infringement in terms of the Act.
Types of trade marks
The following types of trade marks are registrable:
- Goods and service marks
- Three-dimensional trade marks
- Certification marks
- Collective marks
- Geographical indicators
- Trade names.
Definition of a mark
A mark is defined as any sign capable of distinguishing goods (trademark) or services (service mark) of one enterprise from those of other enterprises.
Definition of a certification mark
Means any mark that distinguishes goods or services that are certified by the owner of the certification mark in relation to origin, material, mode of manufacture of goods or performance of services, quality, accuracy, or other characteristics from other goods or services not so certified.
Definition of a collective mark
Means any mark that belongs to a collective entity such as a cooperative, an association or a federation of industries, producers or traders and that distinguishes the goods or services of the members of the collective entity from the goods or services of other enterprises.
Definition of a geographical indicator
Means an indication that identifies goods as originating in the territory of a country; or a region or locality in that territory, where a given quality, reputation or other characteristics of the goods is essentially attributable to its place of origin.
Definition of a trade name
Means the name or designation identifying and distinguishing an enterprise.
Limitation to colour
It is possible to claim colour as a distinctive feature of a mark, by submitting a statement to that effect, as well as the name or names of the colour or colours claimed and an indication, in respect of each colour, of the principal parts of the mark which are in that colour.
Classification
The International Classification of Goods and Services (Nice Classification) is applied.
Convention priority
Seychelles is a member of the Paris Convention and it is possible to claim convention priority. An applicant for a trade mark who has applied for the same trade mark in another Paris Convention member country, is entitled to a priority right. This accords them the same effective date as the first filed application, provided the Seychelles application is filed within six months of such earlier filing date.
Application
An application is filed with the Registrar.
The following information and documents are required:
- Full particulars of the applicant
- A reproduction of the mark, specifically a graphical representation in the case of device or logos marks
- Power of attorney
- Certified copy of the priority document (if applicable).
Examination/procedure
Applications are examined as to inherent registrability, as well as for conflict with prior applications or registrations. Upon acceptance, the application is to be advertised.
Opposition
Interested parties may oppose an application within 60 days of advertisement of the acceptance of the mark.
Opposition proceedings
Any person may, within 60 days from the date of advertisement, and upon payment of the prescribed fee, file an objection, in writing. The objection must include a statement of the opponent’s grounds of opposition.
The Registrar shall send a copy of the notice of opposition to the applicant and, within one month after the receipt, the applicant must send to the Registrar a counter-statement. The Registrar can allow an extension of this period, which extension cannot exceed three months. If the applicant does not file a counter-statement, the application shall be deemed to have been withdrawn.
The Registrar will then send a copy of the counter-statement to the Opponent. The Registrar will thereafter decide the merits of the case. This may include hearing either party.
The Registrar will furnish copies of its decision to the applicant and the Opponent within the period prescribed by the Regulations. At the time of writing there is, however, no time period prescribed in the Regulations and this is therefore discretionary.
Grounds of opposition
The registration of a trade mark may be opposed on the following grounds:
- That the mark does not meet the definition of a certification, collective, geographical indication, mark or trade name
- That the mark is incapable of distinguishing the goods or services of one person from those of other persons
- A prior user of a mark whose name does not appear in the Register or who does not have an application pending may oppose an application for registration of a similar or identical mark by another person for similar or identical goods, provided he or she:
- Proves that he or she has used the mark in good faith for at least six months prior to the filing date or priority date of the application
- Proves that he or she has acquired clientele and that this clientele attaches a certain reputation to the mark, and
- Files an application for registration of his or her own mark before lodging a statement of opposition with the Registrar.
Duration and renewal
A trade mark is valid for ten years, and thereafter renewable for consecutive periods of 7 years.
A 6 month grace period is allowed for the renewal of a registration, along with the payment of a penalty fee.
One exception to the duration of registration is that the term of a registered geographical indication will be indefinite, provided that the specific characteristics, quality or reputation which were the basis for the grant of protection continue to exist.
Invalidation/removal of a trade mark
The Industrial Property Act provides for removal of a mark from the register on the basis of non-use and for invalidation of a registration on the basis that any of the registrability requirements have not been fulfilled.
Removal on the grounds of non-use
Any interested person may apply to the Court to order the removal of a mark from the Register in respect of any goods or services for which it is registered on the ground that the mark has not been used by the registered owner or a licensee for an uninterrupted period of three years or more.
A trade mark registration shall not be removed if any non-use of the mark has occurred due to special circumstances preventing the use of the mark and there was no intention on the part of the proprietor not to use or to abandon market in respect of the particular goods or services.
Invalidation of a registration
Any interested person may apply to the Court to invalidate the registration of a mark. Invalidation may be requested on any basis on which the mark could have been opposed or that the requirements for registration were not met.
Assignment
The registered proprietor of a trade may assign the trade mark. The assignment may be recorded on the Register.
To assign a certification mark, the consent of a court is required.
Licensing / Registered users
Licensing of a mark is permitted. Any licence contract must provide for effective control by the licensor of the quality of the goods or services of the licensee in connection with which the mark is used, where such control is appropriate or necessary. If there is no provision for control or quality control is not effectively exercised, the licence contract is not valid.
A registered collective mark or an application for the registration of a collective mark may not be the subject of a licensing contract.
Amendments
The registered proprietor of a trade mark may apply to the Registrar for leave to add to or alter the trade mark in a manner not substantially affecting the identity thereof. Such amendment is at the Registrar’s discretion.
Rights conferred by registration
The registration of a trade mark prevents any unauthorised person from using, in the course of trade, any sign that is identical with or similar to the registered mark, for goods or services that are identical with or similar to the goods or services in respect of which the mark is registered, where such use would result in a likelihood of confusion.
Infringement proceedings may not, however, be initiated before the date on which the mark is in fact registered.
Trade mark infringement
The registration of a mark shall grant the owner of the registered mark the exclusive right to prevent any unauthorised person from using, in the course of trade, any sign that is identical with or similar to the registered mark, for goods or services that are identical with or similar to the goods or services in respect of which the mark is registered, where such use would result in a likelihood of confusion. A likelihood of confusion is presumed in the case of use of an identical sign for identical goods or services.
The owner of a registered well-known mark has the exclusive right to prevent any unauthorised third party from using, in the course of trade, any sign that is identical with or similar to the registered well-known mark for goods or services that are dissimilar to the goods or services for which the registered well-known mark is used where such use would indicate a connection between the goods or services for which it is used and the owner of the registered well-known mark, and where the interests of the owner of the registered well-known mark are likely to be damaged by such use.
The Industrial Property Act provides that, in addition to any other rights or remedies which may be available, the registered owner of a mark shall have the right to institute proceedings against a person who infringes the trade mark by using, without his or her agreement, the mark as aforesaid or who performs acts which make it likely that infringement will occur.
The Industrial Property Act also affords protection to well-known unregistered marks, in that the owner of an unregistered mark that is well-known in Seychelles has the exclusive right to prevent any unauthorised person from using, in the course of trade, any sign identical with or similar to the unregistered well-known mark for goods and services that are identical with or similar to the goods or services for which the unregistered well-known mark is used, provided that such use is likely to confuse the public.
It must be noted that there is express provision in the Industrial Property Act that any civil proceedings must be initiated within 5 years from the date on which the rights holder knew or had reasons to know of the infringing acts, except in the case of infringing use of distinctive signs in bad faith or for unfair competition purposes, for which there is no time limit to initiate proceedings.
Defences to trade mark infringement
The rights conferred by registration of a mark shall not:
Extend to acts in respect of articles which have been put on the market in or outside of Seychelles by the registered owner or any other person with his or her consent
Confer upon its owner the right to preclude third parties from using the registered mark for information purposes, such as sales promotion or comparative advertising, provided such use is not of such a nature as to deceive the public or does not constitute unfair competition, or
Confer upon its owner the right to preclude third parties from bona fide use of their names, addresses, pseudonyms, a geographical name, or exact indications concerning the kind, quality, quantity, destination, value, place of origin, time of production or supply of their goods or services, insofar as such use is confined to the purpose of mere identification or information and cannot mislead the public as to the source of the goods or services.
Relief for trade mark infringement
The Industrial Property Act provides for provisional measures, civil and criminal remedies.
The Court is empowered to order provisional measures to prevent an infringement of a right from occurring and to preserve evidence in regard to the alleged infringement.
The Act also empowers the Court to award damages in circumstances where the infringer knowingly, or with reasonable grounds to know, engaged in the infringing activity.
The Court may also order the disposal of goods, materials or implements the predominant use of which has been in the creation of the infringing goods.
Law
- Copyright Act no 5 of 2014
- Copyright (Registration) Regulations, 1991 (at the time of writing no new Regulations have been promulgated under the Copyright Act no 5 of 2014
- Copyright (Voluntary Registration) Regulations, 2015
Note: Reliable and up-to-date information on the copyright laws and their application in individual countries on the African Continent and surrounding islands is not always generally available. The commentary given below is based on the information available at the time of writing.
Subject matter eligible for protection
The Act provides for the following works to be eligible for copyright protection:
- Literary works
- Musical works
- Artistic works
- Performances of literary or musical works
- Films
- Sound recordings
- Broadcasts.
Copyright is also provided for works of Seychelles folklore. Special provisions apply to the copyright in Seychelles folklore.
Literary works are further defined to include:
- Books, novels, stories, poetic works
- Plays, mime, stage directions, film scenarios, broadcasting scripts
- Textbooks, treatises, histories, biographies, essays, articles
- Scientific works, tables and compilations of data
- Encyclopaedias, dictionaries
- Letters, reports, memoranda
- Lectures, addresses and sermons
- Computer programs.
Artistic works are further defined to include:
- Paintings, drawings, etchings, lithographs, woodcuts, collage, prints, engravings
- Maps, plans, diagrams, sketches or illustrations
- Works of sculpture
- Three-dimensional works relating to geography, topography, or science
- Photographs
- Works of architecture
- Works of artistic craftsmanship or applied art.
For literary, musical or artistic works to be eligible for copyright, sufficient effort has to be expended to make the work original, and the work must have been written down, recorded or otherwise reduced to material form.
Requirements for subsistence of copyright
For a work to qualify for protection, the author must be a citizen of Seychelles, or domiciled or ordinarily resident in Seychelles. Alternatively, the work must have been made or first published in Seychelles.
Copyright protection is also extended to persons who are citizens of, or domiciled or resident in, a country party to a treaty of which Seychelles is also a party, and which treaty provides for copyright protection.
There is no requirement for registration in order for copyright to subsist. However, provision is made for the registration of ownership of a copyright work, and for the registration of contracts, licences, assignments, etc relating to a work.
Authorship and ownership of copyright
The ownership of copyright in a work initially vests in the author, unless the work was done in terms of a commission or in the course of the author’s employment, in which case it vests in the person who commissioned the work or in the employer. The ownership in this context refers to the economic rights inherent in copyright. The economic rights may be transferred or licensed.
The copyright in Seychelles folklore vests in the State, and the copyright in works made under the direction and control of the Government vests in the Government.
Duration of copyright
In the case of literary, musical and artistic works (except photographs and performances) the copyright endures for the lifetime of the author plus 25 years.
In the case of all other works, the duration is 25 years from the date on which the work was made or was made available to the public.
Protection afforded by copyright
Copyright confers on the owner the exclusive right to control the doing in Seychelles of any of the following acts:
- The reproduction of the work, including the translation or adaptation thereof
- The communication to the public of the work
- Broadcasting the work.
Exceptions to copyright protection
The following acts are amongst a list of acts excluded from the rights of the owner:
- The doing of any of the listed acts by way of fair dealing for purposes of scientific research, private use, criticism and review
- The use for purposes of judicial proceedings
- Certain usages for teaching in educational institutions.
Assignment and licensing of copyright
Copyright is transmissible by way of assignment and may be licensed. Provision is made for the registration of assignments, licences and other contracts pertaining to copyright.
Copyright infringement
Copyright is infringed by any person who, without the licence of the owner, does or causes to be done any of the acts reserved for the copyright owner, or who imports an article which he knows to be an infringing article otherwise than for private use.
Infringement proceedings
Infringement proceedings may be instituted by the owner; the relief may include damages, injunction, account of profits, delivery up of infringing articles, etc.

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