Ethiopia brings 2006 trade mark proclamation into force at last

From the latest news release by Abu-Ghazaleh Intellectual Property (AGIP) comes some information from Ethiopia, a jurisdiction that features all too infrequently on this weblog:

"The Ethiopian Intellectual Property Office (EIPO) announced that new Regulations were published in Ethiopia, bringing into force the Trademark Registration and Protection Proclamation 2006, dated July 7, 2006 [do any readers know why the time-lag was so long?].

The Regulations have required owners of trademarks filed under the old law, namely before 7 July 2006, to re-register their existing registrations. This applies to all cases filed prior to 7 July 2006, irrespective of whether they have been renewed since. The Ethiopian Intellectual Property Office (EIPO) confirmed that the deadline for re-registering cases registered under the old law will be June 18, 2014 [warning for trade mark proprietors: that's little over three months from now]. The EIPO will not be accepting applications for re-registration after that date.

Accordingly, the trademark registrations in Ethiopia will be extended from 6 to 7 years, and provision is made in the Regulations for the amendment of the term of registrations filed between July 7, 2006 and December 24, 2012. Moreover, the EIPO announced that it is now accepting applications for amendment of such registrations, but the deadline for amending such cases will also expire on June 18, 2014.

The EIPO has clarified the status of registrations which became due for renewal between December 24, 2012 and June 18, 2014".

If any readers have direct experience of trade mark registration and enforcement in Ethiopia, Afro Leo will be delighted to hear from them.

African IP discussed at the 2014 International Patent Forum (18 - 19 March 2014)

Diverting attention from recent events (e.g. here and here) heavily imparted by 24/7 media, Afro-IP wishes to gently remind its readers that the Waldorf Hilton Hotel, London, will be hosting the 2014 International Patent Forum in 10 days time. This two-day event will feature, on 19th March, a session discussing intellectual property and related commercial issues from the African continent.

Topic

Economic overview and regional hubs: How to navigate Africa’s diverse business regions

• Analysis of Africa’s four regional economic hubs

• Cultural differences and implications for your business

• A guide to best protect your IP in Africa’s diverse regions

Speakers are: 

• Nicky Weimar, senior economist, Nedbank Group Economic Unit
• Christopher Kiige, chief patent examiner, ARIPO
• Nicky Garnett, partner, Adams & Adams
• Russell Bagnall, partner, Adams & Adams

To entice you, Managing IP Magazine is offering Afro-IP readers discounted tickets plus a generally relevant agenda which can be found here. Looking at the entire event programme, this Leo is convinced that some of the issues discussed are either currently taking place in some form or might be witnessed - years down the line - in a handful of countries on the continent. Better to have an idea of what to expect, from this dynamic and internationally connected area of law and practice, than not.

IP policies in Africa: no 16 Egypt

On her weekly (often fruitless) trek through Africa in search of  national IP policies, this Leo finds herself in Egypt today. Like many others we have visited in this series, the country does not have a national IP policy and its WIPOLex page  here only lists legislation.*  Not wanting to leave Afro-IP readers empty-handed, this Leo offers the following tidbits on the state of IP in Egypt:
Very interesting research has been completed on access to knowledge and IP and innovation in Egypt in the last few years e.g. Nagla Rizik and Lea Shaver (ed.s) Access to Knowledge in Egypt: New Research on Intellectual Property, Innovation and Development, 2010 (download here) and Nagla Rizik 'From De Facto Commons to Digital Commons? The Case of Egypt’s Independent Music Industry' in de Beer et al Innovation & Intellectual Property: Collaborative Dynamics in Africa, 2014 (download here).
------------------
* Thanks to Hafeni Ashimbonde for his research assistance
For Kingsley's findings on the web presence of the National IP offices see here and here
For the country's US Special 301 Report status see here  and for commentary on the 2013 Report see Krista Cox's views here and  Sean Flynn's comments here. 

More on African drug maufacturing capabilities - SARPAM request for collaboration

Afro Leo is pleased to publish this response to the post "Why Africa needs to develop its drug manufacturing capabilities?" and request from Wilbert Bannenberg.


Dear AFRO-IP readers

Excellent article, indeed!

We have to differentiate the local/regional production of the existing and “old” ARVs and other essential medicines that can also be made very competitively by Indian companies, and the production of “new” generics of products patented after 1 January 2005, which India can no longer easily make and export as generics.

For the pre-2005 patented medicines, generics are easily and affordably available from Indian sources and have no IP barriers thanks to the South African court case of 2001. Unfortunately many African companies have tried to produce the same ARVs for their own markets, and are competing with each other and the lower priced Indian exporters. This has resulted in production mainly for the domestic market, sometimes at prices higher than Indian companies can offer. Development partners are therefore not very eager to support national production in isolation.

For the post-2005 patented medicines, India will not easily make generics for export to Africa. They have the technology to make generics, but are restricted by TRIPS to do so, unless the Government issues compulsory licenses (which recently were issued for a few cancer drugs. Maybe 49% of their production can be exported under TRIPS CL rules to Africa?)

For the LDCs in Africa this poses a unique opportunity to develop the “new” generics in good quality GMP plants in their countries. Uganda, Tanzania, Mozambique have such potential. But these companies/countries will need support from the other countries and institutions in their region. At the regional level they will also need to plan the financing, tech transfer, development and market shaping for these new generics. And the raw materials will also need to be procured (maybe as not patented half-fabricates from India?). If Africa can make a plan, then TRIPS art31.bis allows economic blocks with a majority of LDCs to be treated as one territory. Luckily SADC, EAC and COMESA all have a majority of LDCs, and can thus make regional production plans for the new generics.

Our SARPAM project is currently supporting SADC member states with maximizing the flexibilities in their national IP/patent laws. We have covered so far Botswana, Malawi, Zambia and Zimbabwe. We are ready to support 4 more SADC member states in 2014. We are planning a regional meeting of SADC member states in September 2014 to discuss this issue of regional production of “new” generics. We are open to collaborate with interested AFRO-IP readers on this.

With kind regards

Wilbert Bannenberg

You can follow William Bannenberg on the Twitter handle @essentialdrugs

RSA: Copyright infringement and witness images in the Oscar Pistorius trial

Leo with IP glasses on
source: (C) starstyle

Most of the world has its eyes on South Africa as the country's first televised criminal trial unfolds.  This Leo, like many around her, was watching, but with her intellectual property (IP) glasses on. One of the major conditions on the television broadcast of the trial is that where a witness states that s/he does not want his/her image to be shown on TV, that must be respected and only an audio of the testimony is permitted to be broadcast. See here for the court ruling permitting the video and audio recording and broadcasting of the trial ('the first court order').



All three state witnesses who gave their testimony in the first two days of the trial asserted this right and only an audio version of their testimony was permitted to be broadcast. However, there was high drama yesterday when a local channel, eNCA, broadcast a still image of the first state witness, Dr Michelle Burger, simultaneously with an audio broadcast of her testimony. This image was not taken from inside the court but was sourced from Dr Burger's employer, the University of Pretoria's website. A local newspaper, the Beeld had also printed a picture of Dr Burger on the front page of yesterday's paper. The prosecutor, Mr Gerrie Nel, alerted the court to the broadcast of the image and court was adjourned for a few minutes whilst the judge considered this development and upon resumption of the proceedings, the court ordered that where a witness [like Dr Burger] did not wish to have images of his/her testimony to be broadcast, no other images of that witnesses, from whatever source, were to be published by the print and TV media ('the second court order', see media report here). Thereafter eNCA apologised for what it called a misunderstanding of the first court order (see eNCA website here).  Much of the commentary so far has been on whether eNCA and the Beeld had in fact breached the first court order. This post looks at whether a claim for copyright infringement can be made against them.

Copyright Infringement
There is clearly a copyright infringement claim to be made by the holder of copyright in the picture of Dr Burger against the newspaper and TV channel that published or broadcast the picture without authorisation.

Photographs are protected as artistic works by the South African Copyright Act, 98 of 1978. Section 7 of the Act provides that only the copyright holder, or a person authorised by the copyright holder can do any of the following in South Africa:
(a) Reproduce the work in any manner or form; [the photograph was reproduced by both the newspaper and TV channel]
(b) publish the work if it was hitherto unpublished;
(c) include the work in a cinematograph film or a television broadcast; [the photograph was broadcast by the TV channel]
(d) cause a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;
(e) make an adaptation of the work;
( f ) do, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Section 23 of the Act says that copyright infringement occurs when "any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive rights to do or to authorise". It appears evident that no permission or authorisation was given by the copyright holder to the newspaper or TV channel to reproduce or broadcast the picture. Therefore there was infringement. This raises the question of who the copyright holder is. It could be:

(a)  the photographer, as the author or creator of the artistic work.
Section 21(1) (a) provides that "Subject to the provisions of this section, the ownership of any copyright ... on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work".
                           or
(b) Dr Burger if she commissioned the work
Where an author or creator is commissioned to create a work, the commissioner holds copyright. Section 21(1)(c) provides that "Where a person [Dr Burger] commissions the taking of a photograph...and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person [Dr Burger] shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein"
Alternatively, Dr Burger's employer could have commissioned the photograph for its website, in which case, it would be the copyright holder.
                          or
(c) Dr Burger's employer, the owner of the website on which the picture was taken from if copyright was assigned to it, at the time the photograph was submitted for publication on the website.
Under section 22 of the Act, a copyright holder [Dr Burger or the photographer] can assign copyright to a third party [Dr Burger's employer] who/which would then hold all the exclusive economic rights in the work.
It is possible that Dr Burger's employer has taken assignment of the copyright in the photograph because it asserts copyright in most of its webpages and has the following notice affixed to the foot of its webpages:
"Copyright © University of Pretoria [year]. All rights reserved".

So the copyright holder [which ever of the above it is] can sue for remedies for infringement which include "damages [or a reasonable royalty], interdict, delivery of infringing copies or plates used or intended to be used for infringing copies" (section 24(1) of the Act).
There is no telling whether a copyright infringement claim will be brought in this matter, but as shown above, there is a strong case for infringement.

Why Africa needs to develop its drug manufacturing capability

This is the abstract in the latest WHO bulletin of Olasupo Ayodeji Owoeye's piece calling for Africa to urgently develop local drug manufacturing capability. Do you agree?

"Africa has the highest disease burden in the world and continues to depend on pharmaceutical imports to meet public health needs. As Asian manufacturers of generic medicines begin to operate under a more protectionist intellectual property regime, their ability to manufacture medicines at prices that are affordable to poorer countries is becoming more circumscribed. The Doha Declaration on the TRIPS Agreement and Public Health gives member states of the World Trade Organization (WTO) the right to adopt legislation permitting the use of patented material without authorization by the patent holder, a provision known as “compulsory licensing”. For African countries to take full advantage of compulsory licensing they must develop substantial local manufacturing capacity. Because building manufacturing capacity in each African country is daunting and almost illusory, an African free trade area should be developed to serve as a platform not only for the free movement of goods made pursuant to compulsory licences, but also for an economic or financial collaboration towards the development of strong pharmaceutical manufacturing capacity in the continent. Most countries in Africa are in the United Nations list of least developed countries, and this allows them, under WTO law, to refuse to grant patents for pharmaceuticals until 2021. Thus, there is a compelling need for African countries to collaborate to build strong pharmaceutical manufacturing capacity in the continent now, while the current flexibilities in international intellectual property law offer considerable benefits."

You can read the full article here. Comments welcome.

Anti-Counterfeiting in Cape Town - action groups unite

The City of Cape Town together with the International Trademark Association (INTA), the South African Institute of Intellectual Property Law (SAIIPL) hosted a round table on February 13, 2014 that focused on the role between private and public sector groups in tackling counterfeiting. Vanessa Ferguson, head of the Anti-Counterfeiting department at local law firm DM Kisch was prominent in launching the event.

According to DM Kisch's press release, in excess of R2.5 billion in tax revenue is estimated to be lost on counterfeit cigarettes alone, annually. In 2010, counterfeiting was responsible for 14 400 job losses in the textile and clothing industries.

"Mr Siganda [City of Cape Town] reinforced The City’s commitment to clearing the streets of Cape Town of counterfeit goods and other illegal activities. Among the attendees were members from the Specialised Commercial Crime Unit, the National Prosecution Authority, the South African Police Services, Law Enforcement and The South African Revenue Service, Customs and Excise. There was also valuable input from the National Regulator for Compulsory Specification (NCRS), Film & Publications Board (FPB), Consumer Protection, brand holders and members of INTA and SAIIPL.

Speakers provided valuable information around current practices in combating counterfeiting in South Africa as well as alternative measures in the counterfeit battle, where reliance is placed on additional legislation outside the ambit of the Counterfeit Goods Act, which will support action against counterfeiters.

Outcomes from the deliberations were that there is an urgent need for changes to the current Counterfeit Goods Act as counterfeiters are becoming increasingly more sophisticated.  Until such time that the act is amended, both the public and private sector are committed to working together in taking effective action in respect of anti-counterfeiting practices."

South Africa: PSL v Gidani - copyright in fixture lists

Another valuable contribution from Jeremy Speres (Floor Swart) on Friday's decision in a case involving South Africa's Premier Soccer League and national lottery operator, Gidani over copyright in fixture lists:

"This weekend turned into a rather pleasing footballing affair for this writer, being a football supporter and IP lawyer.  A combination of Liverpool FC ending the weekend just four points off the top (peering way, way down at their poor Mancunian rivals) and the delivery of an absorbing copyright judgement by the High Court in Johannesburg on Friday involving football fixtures provided much merriment. 

The plaintiff, the Premier Soccer League, administers SA’s apex football division and produces annual and weekly fixture lists.  The production of these lists involves broad consultation and application of judgement (interestingly, reference is made to the need to avoid Pirates and Chiefs playing each other midweek at night for safety and security reasons!)

The defendant, Gidani, is the national lottery operator and has been reproducing the PSL’s fixtures by operating a football based lottery game.  After the usual nasty letters, the PSL resorted to copyright infringement proceedings.

Gidani appeared to dispute that the fixture lists had sufficient substance to qualify as “works” attracting copyright, arguing that they are “common place, trite, trivial”.  The court however decided not to address this aspect but addressed the originality requirement in detail.  The court adopted the traditional “sweat of the brow” approach - the exercise of skill, judgement or labour is all that’s required (subjective elements) but not creativity or novelty (objective elements) - and found that the fixtures were original.

The court waded into the debate about whether objective factors should be considered in the originality assessment.  At para 68, the court approved of the obiter statement made in the seminal Waylite Diaries case that objective factors are relevant, despite this statement being rejected outright by none other than Prof. Owen Dean.

The court was not swayed by recent decisions of European courts, most notably that of the ECJ in the Football Dataco matter, where copyright in football fixtures has been rejected.  Rightly so, the court noted that such decisions were taken after the implementation of the Database Directive which introduced an objective element of creativity to originality.

Most beguiling from an SA IP law perspective, the defendant invoked a judgement that tends to strike fear in the hearts of many local practitioners – Laugh it Off v SAB.  Essentially, the defendant argued that its right to freedom of expression, including the freedom to receive or impart information or ideas, should temper the monopoly afforded to the plaintiff.

The court agreed that the reasoning in Laugh it Off applied equally in copyright matters in that the interests of a copyright owner should be balanced against the defendant’s right to freedom of expression in determining the scope of the monopoly.  Most interestingly, the court implied, at para 106, that the requirement of “substantial economic detriment” introduced in Laugh it Off may be applicable to copyright.  I can already hear the groans!

The court however distinguished this case from Laugh it Off by focusing on the fact that the defendant was engaged in a purely commercial enterprise generating many millions of rands without an element of parody.  The court seemed to find that an infringement with no purpose other than to generate commercial gain cannot be shielded by the right to freedom of expression.  Perhaps then, in cases involving pure commercial gain with no element of parody or public interest, this presents a potential escape from the clutches of Laugh it Off, not only in copyright matters but trade mark dilution matters too?

Ed - this is indeed welcome news for copyright in RSA and especially given the recent rumblings of action groups over copyright in the draft IP Policy that it inhibits access to knowledge/education (another potential human rights balancing act). This writer has always wondered whether the Laugh it Off case was influenced by the political nature of the subject matter and the timing of the judgement being so close to end of apartheid. In that case the T shirt manufacturer was also making money (he was not a political activist). In a more recent example RSA felt quite comfortable using far reaching anti-ambush marketing legislation for the the World Cup (football) that also potentially eroded freedom of expression. IP is indeed alive and well, at least for the time being.   

AUC Chairperson cries foul, but eish

no abuse please

According to an AU press release, "[t]he Chairperson of the African Union Commission, H.E. Dr. Nkosazana Dlamini Zuma on Thursday, 6 February 2014, held a brief meeting with the Director General of the World Intellectual Property Organisation (WIPA), Mr. Francis Gurry, who was on an official visit to Ethiopia. They discussed areas of cooperation between their two institutions.

The AUC Chairperson and WIPO General Director talked about the indigenous knowledge component that Africa increasingly produces, which constitute an important aspect of intellectual property with great economic value, but which is currently being ignored. They agreed on the need to pay closer attention to Africa's property rights, in particular, and the intellectual property system as a whole.

The two also arrived at the understanding on the necessity to step up political momentum necessary to overcome some of the challenges in the sector, notably getting full engagements from the industrialists, who are feet-dragging for as long as possible, in order to continue with the abusive exploitation.

While calling for respect of Africa's property rights, she welcomed the AUC's collaboration with the Africa International Property Organisation (OAPI) and WIPO, to bridge the justice gap, while ensuring that the necessary international treaties are enacted to stop the exploitation."

Ed - The fact that Africa has been a victim of abuse has as much to do with our own inability to use and implement good IP systems and laws that have been available to us for decades (this blog is full of examples) . There is also abuse because Africa, in general, does not know how to use the systems available to it to generate wealth, improve competitive positions, collaborate effectively, protect culture, attract and use investment opportunities. Those that have (eg South Africa) are now under pressure relax their laws. The focus should be on education, money for infrastructure, empowerment, institutional efficiency and capacity building, not a cry against abuse which will continue to have little effect. That said, collaboration and close scrutiny of treaties to ensure that there is fair treatment is laudable.

Joining the dots slower than expected for dotAfrica

The deadline for the submission of names for inclusion in the dotAfrica Reserved Names List has been extended because governments have been slow on the uptake, according to the African Union. You can read more about this development here.

Meanwhile Neil Dundas, has stepped down as the ZA Central Registry CEO to take up a role as the COO. Neil was acknowledged as one of the IT personalities of the year in 2012. The developments do not appear to be linked and news of Dundas' move is located here and here. The CEO role will now be taken up by Lucky Masilela.

IP policies in Africa: no 15 Djibouti

Djibouti's IP laws are available on WIPOLex here . Djibouti's patent law (Industrial Property Law No. 050/AN/09)  has come into force but (see here) but the country is yet to issue any patents (see IP stats here). As Kingsley found here and here, the country still lacks an official Industrial Property office website (see here) .

The country does not yet have an IP policy. The WIPO Technical Assistance Database lists a meeting here that was held in 2010 that from the limited information available, seems to have discussed IP policy-type issues. However, as a member of COMESA Djibouti subscribes to COMESA's IP policy ( which was reported upon here).

AFRO-IP Linkedin requests

Indira TK has posted the following update on the Afro-IP Linkedin Group Forum - can anyone assist her?

"The Ugandan Industrial Property Bill that was passed last year (August 22, 2013), has been signed into Law by the President on January 06, 2014 (ed- thanks for this). 

The Act indeed incorporate the provisions like the elimination of criminal sanctions for patent infringement, included model provisions on TRIPS waivers on pharmaceuticals, patentability criteria for the case of Novelty steps-left to persons highly skilled in the art to determine Newness of an invention among many other good provisions. 

In particular, Section 8(3)(f) excludes pharmaceutical products and test data from patent protection until January 01, 2016 or such other period as may be granted to Uganda or least developed countries. Can any one provide clarity on whether the patents that are already been granted (through ARIPO) be enforced according to the new law i.e. from January 01, 2016? 

Oh, and there is a also request for a worldwide trademark filing project by Zafaraullakhan, You can reach him here.

AMC IP Masterclass & LES's forum on the IP Policy

Two worthwhile conferences on IP - LES's panel discussion on the IP Policy and feedback from AMC's Annual Intellectual Property Protection, Distribution and Costing Masterclass.

Topic:  The Draft IP Policy: What are the issues?

Date: Tuesday, 25 February 2014

Venue:  New offices of Adams & Adams (Sandton), 2nd Floor, Building 1, 34 Fredman Drive, Cnr of 5th Street, Sandton (S -26.106429 / E 28.049952 - Map attached to registration form)

Time: 16:00 to 17:30

Panel discussion: with panellists Prof. E D Du Plessis; UP and Chair: Standing Committee on IP of the LSSA and Mr. P J Roos; Policy Consultant at SACCI and Prof Pouris; UP School of Technology Management 

Moderator: Danie Dohmen; Partner and patent attorney, Adams & Adams

About the topic:  On 4 September 2013 the DTI published a draft national policy on IP for comment. The draft IP policy has caused much debate and various comments on the draft IP policy were submitted to the DTI. The discussion will highlight and unpack some of the

important issues emanating from the draft IP policy.

Catering: Drinks and snacks will be served following the discussion

Cost: LES members: R80 per person; Non-members: R150 per person

RSVP: Please make payment and return your completed registration form by e-mail here  .


Annual Intellectual Property Protection, Distribution and Costing Masterclass

Last Friday, this Afro Leo presented at the AMC 2nd Annual Intellectual Property Protection, Distribution and Costing Masterclass arranged by the ever efficient Matshego Njumbuxa and focusing on the practical aspects of IP in business.

The attendance was modest but engaging. [It co-coincided with lull in the tension played out in Port Elizabeth where Australia and RSA are testing their knowhow in an epic test cricket showdown (no amount of patenting can protect against Steyn's reverse swing or Mitch's bouncer). Series is one-all.]

My own contribution can be viewed below or if you are receiving this by email - here IP Models for Africa or on the blog. Other speakers are listed in the program and we would be happy to share their presentations if they send them here.


 

RSA case update: Firstrand v First Central & Moneyweb v Media24

Thanks to Jeremy Speres (Floor Swart) for this guest post:

When I began reading this judgement I was desperately looking for a distraction from my disappointment at Liverpool’s exit from the FA Cup at the hands of referee Howard Webb, assisted by Arsenal.  I had heard that the judgement involved FirstRand Bank seeking revocation of a registration for a device mark incorporating FIRST CENTRAL INSURANCE.  FirstRand of course is the owner of various registrations incorporating FIRST.  I was therefore hoping for a juicy read covering issues like laudatory marks and perhaps some clarity on the “series principle” and whether Judge Harms’ comments in the Upjohn and Cowbell cases regarding that principle were obiter (as argued in the McDonalds case).  Alas, it was not to be, but the judgement was interesting for two other reasons.

Form of TM application

looks clear to me!

Firstly, FirstRand had sought revocation on the basis of a provision that is not commonly encountered – Regulation 13(4) (a year’s free subscription to Afro-IP for the first one to recall the provision in the comments! - hint, click here).  Essentially, the regulation requires representations of marks to be clear and distinct.  Firstrand argued that parts of the mark in question were obscured and unidentifiable and presented a photocopy of the Register in evidence.  The court rejected this argument for the following reasons: a) The court could not compare the photocopy with the actual register; b) the regulation permits the Registrar to call for additional representations if not satisfied, which did not occur, indicating that the Registrar was satisfied; and c) the court applied the section 51 presumption that registration is prima facie evidence of validity.  It seems that the burden of rectifying the register on the basis of a contravention of Regulation 13(4), and perhaps, by extrapolation, other “manner and form” type regulations, is a heavy one!

Intent to use

Secondly, FirstRand sought revocation on the basis of section 27(1)(a), which provides for revocation where the mark was registered without any bona fide intention that it would be used and no use has in fact been made of the mark.  The owner of the mark could only adduce evidence of a handful of insurance claims and some correspondence as proof of use.  Interestingly, the court found it telling that a practising attorney deposed to the respondent’s affidavit and would have appreciated the need to provide substantial evidence of use and yet was unable to do so.  Ultimately, the court found that the respondent had “no serious intention of carrying on a trade as a commercial enterprise” and granted the application for revocation.  The court cited the judgement in the recent New Balance decision where it was stated that “clear and compelling” evidence of use is required and allegations that are “sparse, ambiguous or lacking in conviction” will not be accepted.  This case again highlights that, although use on a substantial scale is not required, courts are prepared to interpret the requirement of bona fide use strictly, against use that may on the surface seem legitimate but that ultimately does not exhibit a serious intention to trade commercially. [Ed also bringing RSA more in line with European decisions on this issue.]

Moneyweb v Media24

In a totally unrelated matter, those who have been following the fascinating Moneyweb v Media 24 dispute involving aggregation and copyright should take the time to read Roger Hislop’s well-reasoned if not somewhat polarising piece on MarkLives.com, but not before they’ve read the answering papers filed by Media 24 in December.  In fact, Roger’s piece is so assured that I for one wouldn’t be surprised to find some of his arguments in the replying papers!  To whet your appetite and perhaps give you an idea of what’s at stake, here’s what Roger believes will happen if the court and the media don’t act to prevent the kind of churnalism Media 24 is accused of:

“And then our society will no longer have a Fourth Estate with the will and the skills to crack open the Defencex scandal, penetrate the e-toll spin, or hack through the Zuma spy tape evasions. We will just have 5 Mind Blowing Things You Never Knew About Belly Fat.”

Korea is solely funding ARIPO's ICT project, says Fernando Dos Santos

Last month, Afro-IP learned of the impressive ICT project underway at ARIPO but was left curious about its sponsor(s). We now understand that Korea International Cooperation Agency (KOICA) is the entity providing the 'entire' funds for it. Says Afro Leo, well done, Korea. 

Afro-IP is looking forward to the successful completion and implementation of this landmark project.

Friday Fallout

A few note-worthy items for your reading enjoyment, in case your Valentine's Day plans involve reading IP-related news...

It's Friday, I'm in Love!

For the 3 (or perhaps fewer) Afro-IP readers who are not also following the IPKat, this posting regarding a very recent decision in the Court of Justice of the European Union is particularly worth noting. The issue is whether a webpage, by providing a link to copyrighted material, may be infringing the copyright. In short, the answer is "no" provided that the link does not enable a "new" audience to view the copyrighted material. A "new" audience would be one that did not have access to the original content - for example, non-subscribers to a subscription-only journal. This is a critically important decision (which, this Leo thinks, comes to the perfect conclusion). To the extent that any similar cases are brought in African jurisdictions, it is greatly hoped that the courts will look to this CJEU decision for guidance.

It is difficult to know whether to cheer or to despair this news reported at IP Watch, but the Office of the US Trade Representative has released it's list of Notorious Markets, i.e., countries and markets that are Notorious for violation of IP rights, particularly in marketing pirated and counterfeit goods. Not a single African country or African market was mentioned in the list. So, either Africa is doing so well in combatting counterfeit/pirated goods that it is not a Notorious Market, or Africa is so far from the radar of the United States that they don't know we exist that we are not worth the digital ink that they don't feel it's time yet to turn the spotlight on African markets.

Finally, again from the IPKat, we learn here of progress toward a EU directive on Collective Management of Copyright-related rights. The best part about this report is one of the reasons underpinning the directive: "The functioning of some collective management organisations has raised concerns as to their transparency, governance and the handling of revenues collected on behalf of right-holders." It's just nice to know that the same issues that plague CMOs in Africa (see here and here, for example) are also a problem in Europe! It is said that misery loves company (although hopefully not for our dear readers on Valentine's Day).

IP policies in Africa: no. 14 Cote d’Ivoire

Cote d'Ivoire currently does not have a national IP policy (see a listing of its IP texts on WIPOLex here).* There is no listing of any IP policy formulation technical assistance (see WIPO database search results here) so it appears that a policy is not yet in the offing. Bitterly disappointed and seeking comfort, this Leo looked up IP news and trivia that has a (sometimes tenuous) link to Cote d'Ivoire, some of which she shares below.

Cote d'Ivoire renowned for its soccer players, national soccer team (the elephants) and cocoa. It has a lot on the line as far as IP and trade in IP protected products and services are concerned.

source: British Museum

source: wikipedia

source: wikipedia commons

The country is the world's leading producer of cocoa and there are significant concerns about sustainable cocoa farming, fair labour and pricing practices in view of the high profitability of end products such as chocolate bars and beverages. The trademark protection of these products has led to several disputes.

Nestle sources cocoa for the production of its Kit Kat from Cote d'Ivoire from where it committed to purchase fairtrade cocoa in 2009 (see here ) and has since obtained fairtrade certification for its UK Kit Kat products (see here). In South Africa, Nestle has been embroiled in a trademark dispute with IFFCO over its Kit Kat brand. In November 2013 the Pretoria High Court ruled that IFFCO's Tiffany Break did not infringe the Kit Kat trademarks (see the judgement here). Nestle is taking the matter on appeal to the Supreme Court of Appeal (see media report here).

source: Daily Mail UK 

source: Confectionery News

source: Confectionery News

After the vain search for IP policy but somewhat soothed by the above image, news and triva haul, this Leo is now going to have a break... and take a nap (not a Kit Kat!)
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* thanks to Hafeni Ashimbonde for his research assistance.

International Patent Forum 2014, 18 - 19 March, London - Afro-IP reader discount rate inside

They went to great lengths (or in other words, bothered) to rank African-based IP firms last year and included African IP in the 2013 International Patent Forum agenda. This year, we hear that they are doing the latter, again. Going forward, you now know who they are.

What is it?

Managing IP magazine cordially invites you to attend the 4^th annual International Patent Forum at The Waldorf Hilton Hotel, London, on 18th and 19th March 2014. 

Who will be attending?

At this two-day event, you will meet over 250 leading patent lawyers from over 25 countries, including world leaders in corporations, public health, sciences and international leading IP experts who will discuss and impart valuable knowledge. Past delegates' list can be found here, while confirmed speakers can be seen in this draft agenda (for an up-to-date web version, see here).

What is the registration fee for an Afro-IP reader?

This event is FREE for in-house IP and patent counsels, R&D professionals and academics to attend. To register, click here. Advisers, consultants, private practitioners, service providers can get a discount - details of which can be found here.  

Is the agenda relevant to an African-based IP practitioner?

Generally, yes. Day 2 is obviously relevant because that is where Africa is featured. While looking at the draft agenda, one might as well ignore the mention of "USA", "Europe" and so on simply because, it is only a matter of time before African countries experience the same issues. Also, you can substitute, in most parts, the word "Patent" for "IP" considering that some of the discussions may apply to other IP rights. 

Commentary

The International Patent Forum is a proven platform to acquire basic practical patent/IP knowledge at a global level as well as network with potential sources of IP work from outside the continent. The inclusion of an African agenda, for the second year running, can further help remind global IP event organisers that the continent has come of age to be easily put aside - perhaps, due to publicity via blogs such as this one and others including IP-Watch and IPKat.

This Leo can remember the networking reception at IPKat's 10th birthday where someone asked him: "I hear a lot about the economic growth in Africa; what is really going on? Are there business opportunities for IP firms? Well, readers can be rest assured that this Leo's general response was in the affirmative. It would be worthwhile for the 'leading' African-based IP firms to participate, in one way or another, at events such as this one.