IP Enfoecement Legislation - Tanzania
IP enforcement legislation relating to trade mark matters elaborates to comply with the enforcement provisions of the TRIPs Agreement which describes that the enforcement procedures must be fair, equitable and not costly and be executed within reasonable time limits. One of the obligations under the Agreement is to ensure effective action against infringement of IP rights on trade and service marks on Tanzania mainland. The present legal framework in Tanzania provides adequate enforcement procedures with regard to damages and injunctions. Since TRIPs Agreement does not impose an obligation on member countries to put a judicial system for enforcement of IP rights, the enforcement falls under the ordinary judicial system of Tanzania which involves exorbitant fees to obtain injunction at the High Court. However, it is felt that this is contrary to TRIPs Agreement which provides that procedures concerning enforcement of IP rights should not be costly.
IP infringement involves mainly civil remedies, including permanent injunctions. However, temporary injunctions are also vital in determining whether or not to grant a temporary injunction as per guidelines of the High Court. In some cases courts have refused to grant temporary injunctions when an applicant fails to establish the requisites for securing an order for temporary injunction, as courts opine that in conflicts of trade marks and business names, temporary injunctions should sparingly be granted because of the intricasy involved in establishing a prima facie case which is not easy for the applicant to establish.
With regard to damages, the general rule is that they should be compensatory and should put the aggrieved party back in the position they would have been had the infringement not occured. As for accounting profits, the TRIPs Agreement provides that the judicial authority should have power to order recovery of profit.
In respect to costs, under the TRIPs Agreement, the judicial authorities have the authority to order the infringer to pay the rightholder's expenses, which may also include appropriate attorney's fees.
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