Briefly, what is the forum and the procedure for challenging each of these intellectual property rights and what are the grounds for a finding of invalidity of each of these intellectual property rights?

Intellectual Property

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Registered designs – Any interested person may apply to the registrar of designs or to the High Court for the revocation of a registered design.

For the registration of a design to be revoked, it must be shown that the design, at the time it was registered, was not new or was not registrable; or was a corresponding design in relation to an artistic work in which copyright subsisted, and the right in the registered design has expired.

Patents – The validity of a patent may be put in issue by way of defence, in proceedings for infringement of the patent, or in proceedings that are specifically listed under section 82 of the Patents Act.

For a patent to be found invalid, it must be shown that there is a lack of novelty, an inventive step, or industrial application. A patent may also be invalidated on the ground of insufficiency.

Any person may apply to the registrar of patents to revoke a patent on the grounds that the invention was not a patentable invention; that the patent was granted to a person who was not entitled to be granted that patent; that the specification of the patent does not disclose the invention clearly and completely for it to be performed by a person skilled in the art; that the matter disclosed in the specification of the patent extends beyond that disclosed in the application for the patent; that an amendment or correction has been made to the patent or the application of the patent that should not have been allowed; that the patent was obtained fraudulently, on misrepresentation, or on any non-disclosure or inaccurate disclosure of any prescribed material information; or that the patent is one of 2 or more patents for the same invention having the same priority date and filed by the same party or his successor in title.

Plant varieties – Any person may apply to the registrar of plant varieties or to the High Court to challenge the validity of the grant of plant varieties protection on the grounds that the plant was not novel and distinct at the time of the grant; was not uniform or stable at the time of the grant; or the protection has been granted to a party who is not entitled to the grant.
Any person may also apply to the High Court to challenge the validity of a registered denomination on the ground that it did not meet the required registration criteria.

Trade marks – Any person may apply to the registrar of trade marks or to the High Court for a declaration of invalidity of the registration of a trade mark.

For a trade mark to be found invalid, it must be shown that its registration was obtained through fraud or misrepresentation, or that it conflicts with earlier rights. A trade mark may also be revoked for non-use.

Updated: May 23, 2017