Q&A – 23 November 2015
Infringement of trademark
A company is threatening to institute criminal proceedings against me for alleged infringement of a trademark they own. My position is that the mark I am using is distinct from theirs but the threats are ongoing. Is this not a civil matter?
HG, Arusha
Before enactment of the Cyber Crimes Act, the infringement if any, would likely have been purely a civil issue. The owner of such trademark would have to sue you in our local Courts and claim damages and stop your usage of this mark.
With the Cyber Crimes Act in place, section 24 states: (1) A person shall not use a computer system with intent to violate intellectual property rights protected under any written law. (2) A person who contravenes subsection (1) commits an offence and in case the infringement is on – (a) non-commercial basis, is liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or both; or (b) commercial basis, is liable to a fine of not less than twenty million shillings or to imprisonment for a term of not less than five years or to both, in addition, be liable to pay compensation to the victim of the crime as the court may deem just.
Therefore a violation of an intellectual property which includes a trademark right is a criminal offence that is imprisonable.
National flag as advert
There is a company I know that is misusing our flag and selling products as if the products have been endorsed by the United Republic. Is there no law that governs this?
TR, Tanga
The National Emblems Act provides very clearly on unlawful use of National Flag, Coat of Arms or any likeness thereof by prohibiting any person to use the National Flag, the Coat of Arms or any likeness of the National Flag or of the Coat of Arms:
a. as a trade mark for any article sold or offered for sale;
b. in furtherance of or as an advertisement for any trade, business, industry, calling or profession;
c. on any article which is sold, offered for sale or intended to be sold or offered for sale;
d. on any article which is used by any person otherwise than for a purpose approved by the Minister.
Hence if the company or individual is using the flag as you claim, which we believe is hard to prove, it is an offence and the person can be sentenced to two years imprisonment. You should proceed and report this to the police.
However please be warned that not all usage of the national flag is illegal as some products use the flag to show that the product originates from Tanzania, which we believe is a sign of patriotism and likely not an offence. We recommend you consult your attorney for further guidance.
Recruitment of fat police
Is there no minimum standard when the police force is recruiting officers. One of my friends who is totally unfit physically and weighs over 180 kgs has been recruited. My other question is why do police officers behave so rudely, and is it necessary for a police officer to carry a gun when escorting a prisoner?
ED, Mtwara
Police General Orders (PGOs) dictate police behavior in general. The procedure used for recruitment of police officers is prescribed under the Police General Orders whereby reference is made to the age, education, physical fitness and criminal record.
It is true that an unfit police officer will be able to do little good on the streets, but you must realize not all police officers are on the field. Some of the current heads of police are even heavier and remain in the forces because they are involved mainly in desk work and strategy. Your friend might be recruited because of his expertise in a particular area, and before you complain to anyone, you should check.
The PGO also states that a police officer whether on or off duty is required to be courteous to the public
and if a police officer is not courteous or is rude to any member of the public, action can be taken against him.
Furthermore, under the PGO, police officers escorting prisoners are expected to carry guns and they are also responsible for conveying the prisoners by police transport.
Honeymoon and marriage
I want to have a secret marriage ceremony and don’t want any person to attend our wedding. Is this allowed under Tanzanian law? Are honeymoon’s compulsory after marriage? My wife insists that it is a condition to marriage.
KT, Dar
The Law of Marriage Act states that, any member of the public may attend a marriage in civil form so far as the accommodation in the office of the district registrar may reasonably permit. Further to that, any person who is a follower of the religion according to the rites of which a marriage is contracted may attend that marriage. Also, any member of the community to which the parties or either of them belong may attend a marriage contracted in Islamic form or according to rites recognized by customary law.
From the above, no marriage can be contracted in secrecy under Tanzanian law. The best you can hope for is that, no one shows up during the proceedings of the marriage either at the Registrar’s office or at the public place of worship, wherever you choose to get married.
As for a honeymoon, we have checked our statutes and this word does not appear anywhere. It is surely not a condition precedent or subsequent to marriage. Our research reveals that honeymoon is the traditional holiday taken by newlyweds to celebrate their marriage in intimacy and seclusion. Today, honeymoons are often celebrated in destinations considered exotic and/or romantic.
Hence it is entirely your choice if you want to go on a honeymoon or not. The law does not force you to but perhaps your wife will have such an expectation. It is the expectation of your wife that you have to manage. We wish you good luck.