Q&A – 11 February 2013

Challenging trademark registration

I own a trademark in Tanzania and recently came across a BRELA trademark journal advertising another trademark which in my opinion is very similar, almost identical to my trademark. I want to challenge it. Kindly guide on what I should do?
EK, Arusha

The Trade and Service Marks Act requires the registrar of trademarks to advertise the trademarks for 60 days before registering it. The purpose of advertising the mark is to give the public an opportunity to challenge the registration of such marks if they are identical or similar to their registered or unregistered marks. Hence it is a good idea for the public and other organisations to monitor the trademarks journal.

As for the objection, you can lodge this with the registrar of trademarks by filling a notice of opposition which should be filed within 60 days from the date of advertisement and should be in a prescribed format as stipulated in the regulations. The notice of opposition must state clearly the grounds of your objections and it is highly advisable that you also provide pictures of your mark and compare it with the mark which is advertised to establish the resemblance or similarity which is likely to cause confusion to the public.

Once the notice of opposition is filed with the registrar of trademarks, the registrar shall serve a copy to the applicant who is also required to file a counter statement challenging your notice of opposition within 60 days of receiving it.

The registrar shall forward the counter statement to you and shall arrange for the hearing of the parties. Once the Registrar hears the parties and considers the evidence before him, he shall proceed to make a decision on whether or not the mark should be registered. If you are dissatisfied with the decision of the registrar, you can appeal
to the High Court. For further assistance kindly consult your attorney.

Transfer of Shares

I transferred my shares in a company to another party by signing on an agreement and surrendering my share certificates. The buyer tells me that I was supposed to sign on some other papers. Is this true? My signature is expensive and I want to charge him more money to sign these papers, can you help me?
ER, Tabora

A transfer of shares is only recognized in law when relevant taxes on the transfer are paid. Hence by merely signing an agreement and surrendering the share certificates does not mean anything. We describe the transfer process below.

You should submit to TRA the financial statements of the last three years of the company whose shares you wish to transfer for estimation of the market value of shares. Once you obtain the value you should proceed to submit a share transfer agreement and a share transfer form with the certificate of incorporation of the company whose shares are being transferred, memorandum and articles of association and TIN certificate.

TRA will assess the capital gains tax payable based on the difference between the price at which you had bought the shares and the price at which you are selling (or the market value whichever is higher). The seller is liable to pay the capital gains tax, whereas generally the buyer pays the stamp duty. It is at this stage that the shares are transferred.

In your case, it seems like you have been paid the purchase price and have signed an agreement selling your shares.

However it is likely that you have not paid the capital gains tax which means that the shares are still in your name. Before you get funny ideas, please be informed that since you have already received the purchase price it is unlikely that you can be paid anything further. In fact if you do not sign the share transfer forms, the buyer has a cause of action against you and may file an application in Court for specific performance ie to force you to sign the share transfer from.

Your expensive signature might turn out to be even more expensive if the buyer files an application in Court. If the financial matters are in order you are guided to either sign the share transfer forms or seek the assistance of a lawyer or both.

5% service charge at restaurant

I took some friends to dinner and was charged 18% VAT on the bill plus a 5% service charge. From what I am told, food does not attract VAT. Are the above charges not illegal?
PE, Dar

There are certain items that are not subject to VAT for example bread and other food items. However when you are in a restaurant the food has been cooked and is being served on you meaning that you are effectively been provided a catering service and hence 18% VAT applies.

The more interesting question is the 5%. We have looked at the tax statutes and have not found this anywhere. We conclude that the 5% is thus a mandatory tip that the restaurant is charging you.

This concept of tips revolves around the assumption that everyone follows the US practice of leaving tips for the waiting-staff. In the US, this practice occurs because wait-staff do not get paid as well and have to make up the difference through their tips. It is also perhaps the reason why many US wait-staff pay close attention to their customers.

We opine that the 5% cannot be mandatorily charged to you. You can refuse to pay unless at the beginning of the meal you were put on notice about the 5% and accepted it, meaning you entered into a contract with the restaurant owner that you will pay the 5% service charge irrespective of the service. We wonder if you also paid a tip in addition to the 5% as that would amount to double payment.