THE PROTECTION AGAINST UNFAIR PRACTICES
(INDUSTRIAL PROPERTY RIGHTS) Act 2002
Act No. 22 of 2002
I assent
K.
OFFMANN
President of the Republic
8th
August 2002
Date in Force: 06 January 2003
ARRANGEMENT OF SECTIONS
Section
PART II- UNFAIR
PRACTICE
An Act
To
provide for the protection against unfair practices in respect of industrial
property rights
ENACTED by the Parliament of
Mauritius, as follows –
PART I.
PRELIMINARY
This Act may be cited as the
Protection Against Unfair Practices (Industrial Property Rights) Act
2002.
In this Act-
"appearance of a product" includes
the packaging, shape, colour or other non-functional characteristics of the
product in question;
"business identifier" includes
business symbols, emblems, logos and slogans used by an enterprise to convey, in
the course of industrial or commercial activities, a certain identity with
respect to the enterprise and the products produced or the services rendered by
that enterprise;
"dilution of goodwill or reputation"
means the lessening of the distinctive character or advertising value of a
trademark, trade name or other business identifier, the appearance of a product
or the presentation of products or services or of a celebrity or well-known
fictional character;
"industrial or commercial
activities" includes the activities of professionals;
"practice" includes an omission to
act;
"trademark" includes any mark
relating to goods, services or to both goods and services;
'unfair practice' includes any act
referred to in -
(a) section 52 of the
Patents, Industrial Designs and Trademarks Act 2002;
(b) section 3 of the
Geographical Indications Act 2002;
(c) section 15 of the Lay-out
Designs (Topographies) of Integrated Circuits Act 2002; and
(d) section 4 of this
Act;
by a person other than the owner of
the title of protection and without the agreement of the latter.
PART II-UNFAIR
PRACTICE
The provisions of sections 4 to 9 of
this Act shall apply to any of the industrial property
enactments.
(1) Any act or practice, referred to
in sections 5 to 9of this Act, which, in the course of any
industrial or commercial activity, is contrary to honest commercial practice,
shall be unlawful.
(2) Any act, referred to in
subsection (1), shall amount to an act of unfair practice and may give rise to a
claim in damages.
(3) In any action under this Act,
the court may, notwithstanding any other enactment, grant such remedies, by way
of damages, injunction, forfeiture or otherwise as the court may deem
fit.
(4) For the purposes of subsection
(1), the term "contrary to honest commercial practice" shall include any
practice, which may constitute a breach of contract, a breach of confidence, an
inducement to breach or the acquisition of undisclosed information by third
parties who knew, or were grossly negligent in failing to know, that any such
practice was involved in the acquisition.
(1) Any act or practice which, in
the course of an industrial or commercial activity, causes or is likely to
cause, confusion with respect to another's enterprise or its activities, in
particular, the products or services offered by such enterprise, shall
constitute an unfair practice.
(2) Such confusion referred to in
subsection (1) may, in particular, be caused with respect to any of the
following -
(a) a trademark, whether
registered or not;
(b) a trade
name;
(c) a business identifier
other than a trademark or trade name;
(d) the appearance of a
product;
(e) the presentation of
products or services; or
(f) a celebrity or a
well-known fictional character.
(1) Any act or practice which, in
the course of an industrial or commercial activity, damages or is likely to
damage, the goodwill or reputation of another's enterprise, shall constitute an
unfair practice, regardless of whether such act or practice causes
confusion.
(2) Any damage to another's goodwill
or reputation as referred to in subsection (1), may, in particular, result from
the dilution of the goodwill or reputation attached to any of the following
-
(a) a trademark, whether
registered or not;
(b) a trade
name;
(c) a business identifier
other than a trademark or a trade name;
(d) the appearance of a
product;
(e) the presentation of
products or services; or
(f) a celebrity or a
well-known fictional character.
(1) Any act or practice which, in
the course of an industrial or commercial activity, misleads or is likely to
mislead, the public with respect to an enterprise or its activities, in
particular, the products or services offered by such enterprise, shall
constitute an unfair practice.
(2) Misleading may arise out of
advertising or promotion and may, in particular, occur with respect to
-
(a) the manufacturing process
of a product;
(b) the suitability of a
product or service for a particular purpose;
(c) the quality or quantity
or other characteristics of products or services;
(d) the geographical origin
of products or services;
(e) the conditions on which
products or services are offered or provided; or
(f) the price of products or
services or the manner in which it is calculated.
(1) Any false or unjustifiable
allegation which, in the course of industrial or commercial activities,
discredits or is likely to discredit, another's enterprise or its activities, in
particular, the products or services offered by such enterprise, shall
constitute an unfair practice.
(2) Discrediting may arise out of
advertising or promotion and may, in particular, occur with respect to any of
the following -
(a) the manufacturing process
of a product;
(b) the suitability of a
product or service for a particular purpose;
(c) the quality or quantity
or other characteristics of products or services;
(d) the conditions on which
products or services are offered or provided; or
(e) the price of products or
services or the manner in which it is calculated.
(1) Any act or practice which, in
the course of industrial or commercial activities, results in the disclosure,
acquisition or use by others of secret information without the consent of the
person lawfully in control of such information and in a manner contrary to
honest commercial practices, shall constitute an unfair
practice.
(2) Any disclosure, acquisition or
use of secret information by others without the consent of the rightful holder
may, in particular, result from -
(a) industrial or commercial
espionage;
(b) breach of
contract;
(c) breach of
confidence;
(d) inducement to commit any
of the acts referred to in items (a) to (c); or
(e) acquisition of secret
information by a third party who knew, or was grossly negligent in failing to
know, that an act referred in items (a) to (c) was involved in the
acquisition.
(3) For the purposes of this
section, any information shall be considered "secret information" where
-
(a) it is not, as a body or
in the precise configuration and assembly of its components, generally known
among or readily accessible to persons who normally deal with the kind of
information in question;
(b) it has commercial value
because it is secret; and
(c) it has been subject to
reasonable steps under the circumstances by the rightful holder to keep it
secret.
(4) Subject to subsection (5), any
act or 'practice, in the course of any industrial or commercial activity, shall
be considered an unfair practice where it amounts to or results in
-
(a) an unfair commercial use
of secret test or other data, the origination of which involves considerable
effort, which have been submitted to a competent authority for the purposes of
obtaining approval of the marketing of pharmaceutical or agricultural chemical
products which utilize new chemical entities; or
(b) the disclosure of such
data, except where necessary to protect the public unless steps are taken to
ensure that the data are protected against unfair commercial use.
(5) Subject to subsection (6), no
person, other than the person who submitted undisclosed tests or other data, the
origination of which involves considerable effort, shall rely on such data in
support of an application for product approval for a reasonable period of time
after the submission of those tests or data.
(6) For the purposes of subsection
(5), a reasonable period or time shall, taking into account the nature of the
data and the person's efforts and expenditure in producing them, be not less
than 5 years, unless the Minister otherwise decides.
Any person who contravenes section
4(1) shall commit an offence and shall, on conviction, be liable to a [me of
250,000 rupees and to a term of imprisonment not exceeding 5
years.
(1) Any civil proceeding by an owner
of a right, under any of the industrial property enactments for an unfair
practice, shall be commenced by way of plaint with summons before the
court.
(2) On the request of the owner of a
right or of a licensee if he has requested the owner to institute court
proceedings for a specific relief and the owner has refused or failed to do so,
the court may -
(a) grant an injunction to
prevent an unfair practice, or an unlawful act;
(b) award damages;
and
(c) grant any other remedy
provided for in law.
(3) In any action for an alleged
unfair practice-
(a) it shall be presumed,
unless the defendant puts it in issue, that -
(i) right subsists in the work to
which the action relates;
(ii) the plaintiff is the owner if
he claims so to be;
(4) For the purposes of any
proceedings under subsection (1), in respect of the violation of the rights of
the owner of a patent, where the subject matter of the patent is a process for
obtaining a product, the burden of establishing that an identical product was
not made by the process shall be on the alleged infringer if either of the
following conditions is fulfilled -
(a) the product is new;
or
(b) a substantial likelihood
exists that the product was made by the process and the owner of the patent has
been unable through reasonable efforts to determine the process actually
used.
(5) In requiring the
production of evidence, the court before which the proceedings referred to in
subsection (4) take place, shall take into account the legitimate interests of
the alleged infringer in not disclosing his manufacturing and business
secrets.
The Minister may make
regulations prescribing all matters that are required or permitted to give
effect to this Act.
This Act shall come into force
on a date to be fixed by Proclamation.
Passed by
the National Assembly on the second day of July two thousand and
two.
Andre
Pompon
Clerk of the National Assembly
