No. 4907 Government Gazette 23 March 2012 Act No. 1, 2012 73 INDUSTRIAL PROPERTY ACT, 2012 “International Classification of Goods and Services” means the classification under the Nice Agreement of 1957, as revised from time to time; “registered user” means a person registered to use a registered trade mark in terms of section 170; “trade mark”, other than a certification or a collective trade mark, means a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing those goods or services from the same kind of goods or services connected in the course of trade with any other person; “trade mark registration” means the title granted under this Act to protect a trade mark; “trade name” means the name or designation identifying a business enterprise and distinguishing that enterprise from other business enterprises. Exclusive right to mark 132. (1) The right to a mark, as conferred by this Act, may be acquired by registration of the mark as a trade mark, a certification trade mark or a collective trade mark in accordance with the provisions of this Act. (2) Nothing in this Act may detract from the right of any person to institute proceedings and enforce any rights under common law. Classification of registration 133. (1) For purposes of registration of a trade mark, the goods or services for which registration of the mark is requested must be classified in a particular class or classes as provided for in the International Classification of Goods and Services, and the application for registration must indicate the applicable class or classes of the International Classification of Goods and Services or any prescribed classification of goods or services. (2) Any question arising as to the class within which any goods or services fall under must be determined by the Registrar. PART 2 REQUIREMENTS FOR REGISTRATION Distinctiveness 134. (1) In order to be registrable, a trade mark must be capable of distinguishing the goods or services of a person in respect of which it is proposed to be registered from the goods or services of other persons, either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within those limitations. (2) A trade mark is considered to be capable of distinguishing within the meaning of subsection (1) if, at the date of application for registration, it is inherently capable of so distinguishing or if it became capable of distinguishing by reason of prior use thereof.