Namibia: New Rules of the Namibian Industrial Property Court
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The Rules Board of the Industrial Property Court of Namibia recently circulated the Draft Rules of the Industrial Property Court (“Draft Rules”) describing the various stages of the proceedings relating to the conduct of cases before the Court of Namibia. industrial property (“the Tribunal”) in Namibia.
The Tribunal is established under Namibia’s Industrial Property Law No. 1 of 2012 and is empowered to hear appeals against proceedings or decisions made by the Registrar of Industrial Property concerning: among others, the grant of a trademark, a patent, an industrial design or a utility model. In addition, cases submitted to the Registrar of Industrial Property may be referred to the Tribunal for hearing.
Adams & Adams’ trademark litigation partners Dale Healy and Kareema Shaik were recently called upon to comment on the draft rules. The draft regulation was reviewed and comments were duly submitted in early May 2021.
Our comments understood that the draft rules did not provide for electronic service of documentation / notices in cases before the Tribunal. Electronic document service has become the norm and the COVID-19 pandemic has accelerated the abandonment of the legal profession of paper.
At the same time, our comments aim to avoid making service of documents the sole duty of the Registry, which invariably results in delays and increased costs. We have proposed that, where possible, a party to a case serve any document at the same time as they file the document with the Registry and that the Registry receive electronic service of documents in addition to the hard copies it needs. ; and that parties should have the right to choose to receive the service electronically where practical and possible. Registries that successfully place service on the register invariably use efficient electronic systems and no longer administer physical service of paper documents. There are countless examples of registries that fail in their function because they cannot shoulder the burden of serving physical documents. The other problem inherent in the practice is that the Tribunal may be required to rule on an uncontested case in which it must be satisfied that its own efforts to serve a document were adequate. Business tends to stop when a court is unable to help. Unfortunately, the manner in which documents are to be filed and served is prescribed by law, which limits the extent to which the rules can be formed. Nevertheless, we believe that it is possible to resolve some of the problems by amending the draft regulation.
Finally, the draft regulations give the Tribunal the power to join any party that the Tribunal considers a necessary party to an appeal. We questioned whether this was prudent, given that it is the responsibility of litigants to name interested parties or to join parties whose interests become evident at a later stage or to notify those parties who may have the right to intervene and take part in the proceedings. The Tribunal should only be allowed to order a litigant to inform a third party of the proceedings or to join such a party. The rules also do not provide for a mechanism by which such a junction can be achieved.
We hope that our comments will be considered by the Rules Committee of the Industrial Property Tribunal and that the latter will take due account of the underlying issues that our proposal seeks to resolve.
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