Section 38: Examination and opposition

38. Examination and opposition (1) The Controller shall examine— (a) whether the application complies with the requirements of section 37 and any regulations made under this Act; and (b) whether the mark is a mark as defined in section 35 (b) and is registrable under section 36 (2). (2) Where the Controller is satisfied that the conditions referred to in subsection (1) have been fulfilled, he shall forthwith accept the application and cause it to be published in the prescribed manner. (3) Any person may, within the prescribed period and in the prescribed manner, lodge with the Controller an opposition to the registration of the mark. (4) Any opposition lodged under subsection (3) shall be by way of notice and shall state the grounds of opposition. (5) The applicant may, within the prescribed period and in the prescribed manner, send a copy of any counter-statement to the opposition together with the grounds on which he relies for his application to the Controller and the opponent. (6) Where the applicant does not send a counter-statement under subsection (5), he shall be deemed to have abandoned the application. (7) Where the applicant sends a counter-statement under subsection (5), the Controller shall, after hearing the parties if so required, decide whether the mark should be registered. (8) After an application is published and until the registration of the mark, the applicant shall have the same privileges and rights as he would have where the mark had been registered. (9) Notwithstanding subsection (8), it shall be a valid defence to an action brought under the subsection in respect of an act done after the application was published, where the defendant establishes that the mark could not validly have been registered at the time the act was done. P4 – 24 [Issue 1] Revised Laws of Mauritius