Tuesday, 9 February 2010

Mauritius: IP alive and well ...

Although it is the only known home of the famously extinct dodo, Mauritius is also home to a fairly fully-fledged intellectual property regime which has recently been summarised in this extremely useful article in International Law Office by Malcolm Moller and Gilbert Noel (Appleby). The survey covers both substantive and procedural IP law, as well as describing the features of Mauritius's registration system. The authors add:

"Legislation on industrial property in Mauritius is undergoing review. The government's ambition is to enhance a legal environment that keeps abreast with international, constantly evolving trends, thus making Mauritius a platform with a sound legal framework to protect the IP rights of internationally well-known brands".

Brand Bullies: IP and the SMEs

Afro Leo has recently come across several articles (see here and here) appealing about the difficulties faced by small companies in defending trade mark infringement claims. Soulsa failed to take an iffy decision on appeal because of cost and suffered a name change, Orange Ink used the press and found themselves agreeing to a restrictive use agreement (a positive outcome from their point of view) and the other, Bodtrade 54, were so elated in defending an opposition in the UK by Virgin Enterprises that they have claimed it as a "David and Goliath" type victory. Does this make a case for the introduction of legislation against unlawful trade mark infringement threats (as in the UK) or is it really a case that South African companies, especially SMEs, are either naive about brand protection or are simply chancers prepared to take the risk?

Trade mark litigation in RSA is often about aggressive letters of demand with so many "thereofs", "wherefores", "mutatis mutandi", "inter alias" and broad claims of "unfair advantage", "detriment", "undesirables" and "infringement" that companies capitulate in the dense wordage without properly defending the case. In reality they should consult a lawyer but often do not. Some realise that these letters are excellent material for the likes of Noseweek (who get copies quite frequently) and others enter their own defence. Costs, without a doubt, are a factor - few income statements of SMEs even have a provision for this type of expense even though, on a worldwide level, the relative cost of trade mark litigation in RSA is surprisingly cheap. The result is that lawyers will continue to send aggressive letters and why should they not do so? It is very unlikely that "unlawful threats" provisions will be introduced and the disapproving words of the SCA in recent decisions are unlikely to change the way in which trade mark litigation is conducted.

The SMEs, of course, are also brand owners with the advantages of local legislation available to them. Few though invest in filings and even fewer in cheap pre-clearance searches before choosing trade marks. Not all SMEs are chancers; many are looking to create their business as cost effectively as possible and most are ignorant of the importance of brand protection which is actually an opportunity for lawyers seeking new clients, for CIPRO seeking higher filings and for the SAIIPL - one acronym that sadly, very few SMEs even know about.

Thanks to Mary-Ellen Field for the Forbes article.

Monday, 8 February 2010

Uganda's Copyright Regulations Finally published!


The Attorney General of Uganda has finally published the Copyright & Neighboring rights regulations 2010 that many players in the media industry have been looking forward to; or loathing depending on who you are! The regulations are intended to fully operationalize the Copyright Act of 2006.

A few highlights in the regulations include the following:

* Procedure for application for copyright. Note that registration is not mandatory although its of tremendous value in proceedings to enforce Copyright.

*Registration of assignments and licenses.

*Extensive procedures for registration of collecting societies.

*Provision for copyright inspectors with powers to seize allegedly infringing material.

*the regulations provide for a maximum sentence of 6 months imprisonment for those found guilty of copyright offences or fines of up to the equivalent of US$200 or both, neither of which seems deterrent enough to stem pervasive infringement of copyrighted works.

The other key thing to note is the publication period of 60 days before grant of a Copyright certificate, similar to that under the Trademark Regulations.

The question is, will the Registrar cope with the huge number of expected registrations in the weeks to come? The Attorney General deserves a pat on the back, and a request for funding to automate registration. This would definitely minimize backlog and streamline the registration system.

Life is too short...

Last week Cameron Dunstan-Simth (KPMG lawyer) sent Afro Leo an example of how two companies (Yuppiechef and Woolworths) have tackled (and created) a cybersquatting threat in a novel way, with positive spinoffs for all involved - sadly only the lawyers lose out: read on -


"This is a quick bit of inside news that we had to share with all our fans. Yesterday we did something sneaky for a good cause that has created quite a stir. We held Woolies ransom. Read about it here. Once you're done, be sure to get involved and donate so we can make Woolies pay;) Do it do it do it. We take our hats off to Woolies for the way they responded and are super glad they didn't send their lawyers in;) They added R2500 to the kitty that will go straight to Soil for Life, the charity we are supporting in 2010." (Note from Yuppiechef)

The mature way in which Woolworths have responded speaks volumes. Yuppiechef - opportunistic and innovative - they believe that "life is too short to flip an egg with just any run-of-the-mill spatula". Well, perhaps it is...

Friday, 5 February 2010

cold water on hot air claims

Some of us wish the vuvuzela had never been invented – especially after Christmas, when thousands of children started playing their new toy. But others are happy to claim to be the inventor – in fact a number of different persons and institutions all want a slice of the cake. The first is a soccer fanatic, who created an early version and in fact produced an album of sounds called ’vuvuleza cellular’! The second is the Nazareth Baptist Church, which states that their congregants have used the vuvuleza for about a century in church ceremonies. Thirdly, there are a number of applicants for the trade mark ‘vuvuzela’, some with apparently more merit than others.
Carl van Rooyen of Spoor and Fisher has given a useful analysis of possible rights to both the instrument and the name, and concludes that the word describes a type of allegedly ‘musical’ instrument and is consequently unregistrable because it is generic. The full argument can be read here:
http://www.polity.org.za/article/no-one-entity-can-lay-claim-to-owning-the-vuvuzela-2010-01-29

Thursday, 4 February 2010

More about Alice

On the 25th and 26th January 2010, the European Patent Office (EPO) in Munich heard a patent challenge by the African Centre for Biosafety on behalf of a rural community in Alice, South Africa, in collaboration with Swiss NGO, the Berne Declaration. The patent was granted to Schwabe by the EPO in 2002. The patent is in respect of a method for producing extracts of Pelargonium to manufacture a cough and colds syrup, Umckaloabo. The Daily Dispatch newspaper reports that the challenge was successful, and that the patent was rejected ( it is not clear from the report whether the application was rejected or the patent revoked). Schwabe has indicated that it intends noting an appeal. The documentation relating to this matter is available at
http://www.biosafetyafrica.org.za/index.php/20100115256/Pelargonium-Patent-Challenge-against-Dr.- Willmar-Schwabe/menu-id-100029.html

Tuesday, 2 February 2010

Nigerian Piracy Case Moves Forward

The Nigerian national papers are abuzz with the news.  The “King of Pirates”, Tony Onwujewekwe, has been arraigned before the Federal High Court in Lagos.  It’s such big news that even the BBC has reported on it (audio story).

Alaba Market

Tony Onwujewekwe is a business man active in Alaba Market.  Alaba Market is one of the largest markets on the West African coast.  People travel from all across Nigeria and from many neighboring countries to shop in the large Lagos market. Throughout the past decade, Alaba has been a thorn in the side of the Nigerian Copyright Commission (NCC), the Nollywood industry and the Nigerian music industry.  The market is notorious for its pirated goods.  Shoppers can find cheap video discs of even the most newly released Nigerian and international films.  Music cds go for USD $.50 to $1.  Alaba isn’t only popular because of its low prices, but also because it is often the only place to find some of the top entertainment products.  (See Nollyzone for an account of attempt to build an alternative to Alaba.)

The NCC has conducted a number of raids on Alaba market over the years, some of them resulting in severe injuries to police officers when the market sellers fought back.  By 2008, the NCC had negotiated a memorandum of understanding with Alaba sellers who dealt in legitimate goods.  This lead to attacks by pirate sellers against the legitimate sellers.  Fear rose and piracy in Alaba did not abate.

Arrest and Prosecution of Tony Onwujewekwe

Last November, the NCC again went to Alaba.  This time, they arrested the man they believe to be the king pin in Alaba’s piracy business, the so called King of Pirates.  (World Premier Entertainment has an account of the proceedings leading up to the arrest on its blog.)  The arraignment was yesterday.  This will be an interesting case to watch going forward.

The Charges

According to The Punch, Tony Onwujewekwe is charged with three counts of violating the Nigerian Copyright Act.  One count under Section 20(1)(a) – criminal liability for making for infringing copies of works for sale or causing them to be made for sale -, one count under 20(2)(a) – selling or leasing infringing copies of works - and one count under 20(2)(c) – possessing infringing copies of works for non-personal use.  [NOTE: The Punch incorrectly cites these sections to the 2004 Nigerian Copyright Act.  The numbers are from the 2008 Copyright Act.  The only difference between the 2004 and 2008 Acts is the renumbering of the sections.  Under the 2004 Act, the correct citations would be Sections 18(1)(a), 18(2)(a) and 18(2)(c).]

Potential Punishment

For those who are interested, the statute requires Mr. Onwujewekwe to prove he did not know or had no reason to know the copies were infringing, otherwise he is guilty under Section 20.  The punishment listed in the statute for violations of Section 20(2) is a fine of N100 for each infringing copy, up to two years in prison, or both.  Violations of Section 20(1) are punishable by a fine of up to N1,000 for each infringing copy, up to five years in prison, or both.

Update on Uganda's Current Anti Counterfeit Goods Bill, 2009

Here are a few welcome positions taken in the most current version of Uganda's Anti Counterfeit goods bill, 2009.

Key elements to note that try to mediate between those against this law, and those for it are as follows;

- Creating clarity on the definition of a Counterfeit. This version of the bill distances itself from the more expansive definition that includes patents and restricts itself to infringement of copyright and trademark rights. In particular, Counterfeiting means the "manufacturing, producing, packaging, re-packaging, labeling or making of any goods by which those protected goods are imitated in such manner and to such a degree that those other goods are identical to protected goods"

- on the contentious issue of medicines, counterfeiting includes the deliberate and fraudulent mislabeling of medicines with respect to identity or source whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging.

- Copies of articles protected by copyright or trademark law in the importing country are also deemed to be counterfeit if the permission of the rights holder is not procured. This clearly gives an option to those who wish to import generic copies to apply under the respective legislation for compulsory licenses.

- The bill gives the National Drug Authority express jurisdiction to handle matters where medicines are involved. This section allays the fears of those who felt that the Uganda National Bureau of Standards has insufficient competences to deal with or distinguish counterfeits from genuine products.

Overall, i must say that the value and urgency of passing this legislation after careful scrutiny by all stakeholders cant be overstated. The mindset that allowing products, irrespective of quality or standards will deal with our needs as a country is misplaced. What needs to happen is for the Government, private sector and donor community to come together and provide specific incentives for innovation in sectors such as drug discovery, development and manufacturing.

In the meantime, parties concerned about the excesses of the application of Intellectual property rights should put to use Compulsory licensing provisions under the law, which to the best of my knowledge have never been invoked. By so doing, the delicate balance between public and private rights in the use of Uganda's Intellectual property system will be put to test without severely undermining the attribution of creativity and ownership that form the basis for innovation.

Thursday, 28 January 2010

Another case for indigenous knowledge protection, but how?

Up to 85 percent of the world’s population relies on traditional healers and medicines to meet their health care needs. In Uganda, for example, the ratio of traditional healers to population is 1:200, contrasting dramatically with biomedically trained health professionals, for which the ratio is 1:20,000. In the Andes of South America, there are no psychiatric or mental health services available to the Indigenous Peoples who therefore depend entirely on traditional healers, family and community support to cope with their mental health problems and to relieve their psychological distress, according to Psychiatrists and Traditional Healers.

"Traditional healing relies heavily on oral religious healing traditions and secular codified medicines. (ch 12) It becomes there a problem to assure that countries who have been contributing with their knowledge on plants and medicines have received neither money or recognition for that. Considering that pharmaceuticals are an important part of Western medicine, for a fair collaboration, intellectual property laws should be addressed concerning this since traditional healers have contributed directly for development is [in] science. (ch 4) (Metapsychology Online Review)

Another case for indigenous knowledge protection, but how? Noseweek's scathing commentary on RSA's attempt, entitled Netshitenze's Lemon excites critics but poses no solutions.

"MacDonald Netshitenze was appointed Registrar of Patents and Trade Marks in the mid 90s and a black man with attitude, and no background in IP, was about as welcome as a wet fart in a space suit. His new Bill will lead to all sorts of absurdities as it seeks to give protection to things which are not original, making traditional knowledge the antithesis of intellectual property."

Wednesday, 27 January 2010

Kenya - KRA gets police protection

"Please find attached an extract from The Daily Nation. The Police have now joined KRA officially in the fight against fake goods. Useful because the AC act is getting legs now with the anticipated publication of the Rules subsidiary to the Act." (Comment: John Sykei - IP expert based in Niarobi). The Daily Nation report:

"The police and the tax collector on Wednesday announced plans for joint operations to fight graft and the dumping of substandard goods in the country.

Police Commissioner Mathew Iteere said that tax-paying traders were losing heavily as counterfeit goods continued to flood the market. The police, he said, would work together with the Kenya Revenue Authority (KRA) to stamp out counterfeit goods.

He noted that export products were also finding their way back into the country, adding that this had made it necessary to have police officers and KRA officials at exit points. “This will ensure that we complement each other in enforcing the law,” the police commissioner said.

He was speaking during a consultative meeting between the police and the KRA at the Kenya School of Monetary Studies. KRA commissioner-general Michael Waweru welcomed the joint effort, saying it would lead to a decrease in tax evasion. “This collaboration will help eliminate trade in counterfeit goods and tax evasion,” he said.

He said the KRA hoped to achieve a revenue collection target of Sh545.2 billion this financial year from the Sh480.6 billion in the 2008/2009 fiscal year. Mr Iteere said the joint effort was part of internal reforms in the Police Force.

Divert goods

The commissioner of customs, Mrs Wambui Namu, noted that the issue of counterfeit goods was rampant. “The extensive and porous Kenyan borders pose an enormous challenge to customs coverage.” Such areas, Mrs Namu added, were used by tax evaders to dump and divert transit and export goods. The revenue authority undertook to cooperate with the police and share information and resources."

Afro Leo is delighted by the news but wants to know what, if any, solution there was regarding the contentious clauses making generics counterfeit. Thanks John and the Daily Nation.

Tuesday, 26 January 2010

WHO's strategy good news for Africa but what about IP?

"The World Health Organization (WHO) is considering a plan to ask governments to impose a global consumer tax on such things as Internet activity or everyday financial transactions like paying bills online. Such a scheme could raise "tens of billions of dollars" on behalf of the United Nations' public health arm from a broad base of consumers, which would then be used to transfer drug-making research, development and manufacturing capabilities, among other things, to the developing world (sounds like good news for Africa). The multibillion-dollar "indirect consumer tax" is only one of a "suite of proposals" for financing the rapid transformation of the global medical industry that will go before WHO's 34-member supervisory Executive Board at its biannual meeting in Geneva." (Foxnews

"In May 2003 [WHO] established an independent, time-limited body, the Commission on Public Health, Innovation and Intellectual Property Rights, to collect data and proposals from the people and institutions involved and present an analysis of intellectual property rights, innovation and public health, including appropriate funding and incentive mechanisms for the creation of new medicines and other products against diseases that disproportionately affect developing countries. The Commission concluded that intellectual property rights provide important incentives for the development of new medicines and medical technologies. Those rights are not, however, an effective incentive when patients are either too few or poor. As a result, there is a gap in the innovation cycle: in some cases no product exists to address the health needs of the poor, and, in other cases, products exist, but little effort is made to ensure that they are affordable for poor communities. Other incentives, financial mechanisms and coordination among stakeholders are needed."

Published a few days ago is the full Report of the Expert Working Group set up by WHO as a consequence of the Commission's conclusions to develop proposals for new and innovative sources of financing, to stimulate research and development. Some of the controversy over its publication (including an apparent neglect over IP rights) is revealed by Foxnews here.

Monday, 25 January 2010

biopiracy in Alice

The town of Alice, in the Eastern Cape, might soon become as wellknown as its Australian namesake. A local community there intends to stop the exploitation of its traditional knowledge by a large multinational. The German company Schwabe Pharmaceuticals wishes to patent a method for extracting an active ingredient in cough medicine from the roots of pelargonium plants. The community, on the other hand, says that this method has been used for generations by traditional healers and that many Southern African peoples have used the plant to treat respiratory problems.
The community is supported by the Africa Centre for biodiversity, although the South African government is not a party to the action, instituted in a Munich court.
The full story, written by Yolandi Groenewald, appears in the South African Mail and Guardian here http://www.mg.co.za/article/2010-01-22-town-like-alice-takes-on-german-biopirate

Thursday, 21 January 2010

When bad milk looks like sour grapes

Afro-IP encourages comment but two articles "in answer" to its post "Is Uganda's proposed anti- counterfeit goods legislation bad milk?" were really quite unexpected.

Alec van Gelder of the International Policy Network kindly wrote in:

"Here’s a response from International Policy Network, a think-tank based in London, to the rather alarmist interview with Sisule Misungu [Musungu] that we think rather misses the point: http://bit.ly/7JhxpK. The usual activist argument against IPRs ignores the glaring reality that the poor in poor countries would benefit for better protection of all property rights – tangible and otherwise – and that in some case this really is a life or death issue."

The Daily Nation, on the other hand, really went to town. Their article "Kenya May Buy Ugandan ARV's" by Business Daily surely goes some way to exonerating Uganda's president as a naive politician and makes a case for comprehensive IP legislation to protect home grown IP rights.

Musunga, should you be ashamed.

Wednesday, 20 January 2010

Is Uganda's proposed anti-counterfeit legislation bad milk?

Afro Leo has come across an interesting Q&A session with Sisule Musungu president of Geneva-based IQsensato, a non-profit research and communications organisation providing a platform for developing world researchers to influence international policy-making on development. In short Sisule argues that 'Intellectual property rights constitute one of the last comparative trade advantages that industrialised countries enjoy.' and that the adoption of these laws by for example, Uganda, perpetuates the need for industrialised countries to preserve their global trade position [as opposed to genuinely assisting developing countries.] He believes that the President of Uganda has been hoodwinked into believing that anti-counterfeit legislation will solve the problem of children drinking bad milk and that resources set aside to set up anti-counterfeit measures eg customs monitoring by the likes of Interpol simply diverts Interpol from its core function. You can read Q&A session held by Christi van der Westhuizen and Wambi Michael on the IPS website here.

The problem this Afro Leo has with the comments of Musungu is that his apparent cynicism of what motivates global trade (which may be entirely correct) affects his judgement of whether anti-counterfeit legislation is per se good or bad. Yes, he was asked to explain the position against the backdrop of the certain controversial provisions which may affect access to cheap drugs but he does not reconcile his apparent distaste for anti-counterfeit legislation (as a totality) with the need to somehow also protect the fruits of the research of those his organisation represents. To be fair he was not asked to, but he would probably find that anti-counterfeit legislation, as a concept, would assist those researchers.

Paul, any thoughts?

Tuesday, 19 January 2010

ARIPO grows

The Republic of Liberia has become the latest African country to join ARIPO. They deposited the Instrument of Accession to ARIPO on the 24th of December 2009 and both the Harare and the Banjul Protocols will enter into force with respect to the Republic of Liberia on the 24th of March 2010.

Liberia becomes the 17th member state of ARIPO, the 16th amongst states party to the Harare Protocol (for patents, industrial designs and utility models) and the 9th amongst states party to the Banjul Protocol (for trademarks).

States currently party to the Harare Protocol are:

Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe.

States currently party to Banjul Protocol are:

Botswana, Lesotho, Malawi, Namibia, Swaziland, Tanzania, Uganda, Zimbabwe

The Republic of Liberia is also party to the Patent Cooperation Treaty (PCT).

This note which appears on the Aripo website was kindly sent to Afro-IP by Charles Pundo (right) of ARIPO.

Afro Leo would like to know whether Liberia has domesticated the Aripo Protocols.

Monday, 18 January 2010

Ethiopia aims to capitalise on its coffee trade mark experience

Years after its sensational battle with the Coffee giant Starbucks regarding the trade mark dispute over coffee, Ethiopia plans to register geographical indications protection over emblematic home garden products like coffee, beans, spices and condiments or aromatic plants. The Home Garden Project, launched in 2006 and originally intended to run until 2010, has identified local agricultural products suitable for geographical indication (GI) protection, in the hope of improving incomes to the local farming communities. The project seeks to promote and develop native horticultural productions, while preserving in situ the biodiversity of the country's gardens by offering communities legal protection over their biodiversity resources.


The Ethiopian Parliament is expected to pass the country’s first GI legislation later this year. The WTO requires that a country seeking an international protection of GIs should first protect GIs through its domestic legislation. Although Ethiopia is still in accession negotiations regarding membership to the multilateral trading system, its interest in a GI system coincides with the interest of other developing country members which, under the Doha Rounds of Negotiations, have aligned with the EU in supporting the extension of the WTO’s heightened protection for wines and spirits to other agricultural goods beyond wines and spirits.

Written by Tegasher Worku Dagne; posted by Jeremy

The Bullring

The Bidvest Wanderers Cricket Stadium, affectionately known as the "Bullring" because of its intimidatory atmosphere, is a relatively small ground with steepish stands capable of accommodating 35000 passionate cricket fans in the heart of Africa’s commercial capital - Johannesburg. Add to this, dramatic thunderstorms, the final test against the English in a must win for the host country, 30 degree heat, some controversy, a fast bouncing pitch and it is very difficult to avoid getting a ticket if you have an opportunity to watch a late afternoon session, like this blogger had on Saturday.

The advantage of a five day cricket test, even in a late afternoon session, is that there is time to observe. If you think that advertising space on the back of a toilet door has value, it is nothing in comparison to the opportunities for marketers to exploit the thinking time of a captive during a cricket test and somewhat healthier for the captive too!

Apart from the RSA ambush of three slips, a gully and short leg to thwart England’s attempt to launch their rearguard action that evening, Investec were taking on Standard Bank (Africa's largest bank) in their own form of aggression - competitive advertising. An electronic billboard flashed relative newcomer Investec every so often conveniently against the backdrop of the impressive Standard Bank hospitality suite. Not only did Investec get the space, the flashes managed to mimic the white on blue colours of the market leader.

Not to be outdone, the food and beverage industry was raging its own battle. Coca-Cola, no stranger to competitive marketing, was doing its best to upstage local market leader in the sports drink category (Energade) with its Powerade billboard alongside. Meanwhile, Nando’s, probably RSA’s most successful international food franchise brands and well known for its opportunistic marketing, found itself selling its food alongside a Nino’s eatery adorned in a similar white and green. It is when you see what happens in sports stadiums that you consider the impact of (and some argue, reason for) the controversially restrictive Metcash ambush marketing decision ahead of the Fifa World Cup 2010 or why the 2003 Rugby World Cup was not offered to New Zealand in 2003, over stadia contractual disputes.

Moving away from competitive marketing, it is interesting to note that despite the efforts of Steyn, Morkel and/or Parnell, whose bowling caused havoc that evening, their success is unlikely to ever be as commercially valuable to a sponsor as the batting scalps they claim, simply because the advertising space on a batsman’s bat is more prominent for television viewing. There was also a notable absence of law firm advertising. Perhaps this is because of budgets cuts or because sports box hosting is passé for legal service firms?

Finally, during one of the rain/bad light breaks, the electronic scoreboard lit up with a message. It was not a New Year’s message but an order that all spectators “shall not discriminate” described in about 20 words, which included “acts“ which might “intimidate” those of a different “national origin”. Plainly, it did not stop the partisan crowd cheering the fall of an English wicket or the intimidatory marketing on display. It was hardly intended to either.

Thursday, 14 January 2010

Africa Needs Strong ICT Policies

Thanks to a Denise Nicholson (aca2k) tip-off, Afro Leo has come across this article (Africa Needs Strong ICT Policies) which strikes a chord with this blog. The author, Joseph Musakali who teaches at the school of information sciences at Moi University in Kenya, describes how the open access movement has significant part to play in encouraging debate and fostering innovation. He cites the arrival of this first of four new fibre optic cables in Africa (see adjacent pic) last year (which touch ground in Kenya, Tanzania, Mozambique and South Africa) as a key development in facilitating Africa's knowledge sharing environment. He urges researchers and scientists to petition their governments to put ICT (Information and Communications Technology) policies in place. Blogging is of course a direct beneficiary of such technology. (photo source: www.comm.ae)