Civil Enforcement of Trademark Rights in Zimbabwe

Abstract

Protection of property rights is one of the key functions of any legal system, Zimbabwe included. The assertion of rights by right holders in the event of infringement or misuse is one of key roles of the civil courts in Zimbabwe. A number of courts including the Magistrate Court, the High Court, and the Supreme handle civil trademark disputes in Zimbabwe. The civil process is one of the key enforcement mechanisms available to trademark right holders in Zimbabwe. Quality civil enforcement system is relevant for increased investments in research, development and innovation of new trademark ideas. Creativity in the IP sector is hinged in part on the level of enforcement availed by the law and the courts to right holders. Without the law providing real remedies when infringement of intellectual property rights takes place, rights accorded by the law to trademark rights will be on no value. This study examines the status of civil trademark law in Zimbabwe with a view to ascertain the extent of its effectiveness. The following aspects of the civil litigation process were looked at; the cost involved, the duration of proceedings, the right of audience, the available remedies, the set up of the courts, evidence required, onus of proof and other aspects. The study used practising lawyers, companies and judicial officers as research subjects in assessing the effectiveness of the civil litigation process in Zimbabwe. The target population of participants was 40 made up of 15 lawyers, 15 companies and 10 judicial officials. It was discovered that among the selected group of participants there was a great deal of awareness and appreciation of the law of trademarks and Intellectual Property in general. Questionnaires and interviews were used as research instruments. Secondary data analysis was also used to provide background. The research revealed that the current litigation process for trademark disputes and other intellectual property matters in general had some bottlenecks such as long delays in finalising civil cases, poor case management by the courts, low damages awarded in infringement cases, non existence of a specialised tribunal for intellectual property cases, lack of use of alternative dispute resolution mechanisms among others. These challenges can be resolved by a number of measures which do not require infrastructural or expensive changes in the legal system.