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Evidence Required By Courts Of Law When Handling Trademark offences

EVIDENCE THAT IS REQUIRED BY COURTS OF LAW WHEN HANDLING TRADEMARK RELATED OFFENCES.

The rules of evidence which govern the use of documentary evidence in court revolve around the best evidence rule. This is a rule that holds an original copy of a document as superior evidence. The rule specifies that secondary evidence such as a copy will not be admissible if an original document exists and can be obtained.

Therefore in any court of judicature where a party intends to rely on a document, the document itself must be produced in court.

The best evidence rule is found in sec. 61 of the evidence act cap 6 and is known as Primary evidence which means that the document itself be produced in court for inspection.

Under the evidence act cap 6, documents are classified into two groups’ i.e. public documents and private documents.

Documents like the certificates of registration of trademarks are private documents and fit the definition of private documents as per sec 74 of the evidence act.

When dealing with documentary evidence in regards to trademark offences, you will normally have to produce an original copy of the certificate of registration of the trademark for courts inspection to prove that actually your mark is indeed registered as a trademark in order to comply with sec.61 of the evidence act.

However, this doesn’t mean that if you don’t have the original copy of the certificate of registration of the trademark, you can't rely on other documentary evidence to prove registration.

Like all general rules, the best evidence rule/primary evidence has exceptions to it and these exceptions can be found in sec.64 of the evidence act.

One of the exceptions which can be relied on by those seeking to enforce trademarks in Uganda especially for criminal offences committed against trademarks is where the original is a document of which a certified copy is permitted by the evidence act or by any other law in force in Uganda, to be given as evidence.

Sec. 69(1) of the trademarks act 2010 provides for certified copies of any entry onto the register of trademarks to be admitted in evidence in all courts and in all proceedings, without further proof or production of the original.

This is what is mainly done by most state attorneys’ who are prosecuting trademark offences. They will normally ask for certified copies of the certificate of registration of the trademark in order to tender it in as evidence instead of asking for the original document.

HOW CERTIFICATION IS DONE

Certification of trademark documents can be done at Uganda Registration Services Bureau at Georgian house in Kampala.

The fees to be paid will differ depending on the type of trademark. If the trademark is a foreign trademark, then one will be required to pay 40 US Dollars to have it certified and if it is a local trademark, one will be required to pay about 10 US Dollars for it to be certified.

Here at BrandGuard ltd, we do help our clients to carry out this process of certifying there trademark documents at a fee.

Davis Ngonde,

LLB, Advocate of the High Court.

Last modified on Tuesday, 19 July 2016 09:27
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