Monday, 31 March 2008

Our Guests and news on Afro-Leo

Afro-Ip would like to extend a warm welcome to guest contributors Anca Condrea, David Njuguna and Paul Asiimwe who will no doubt help to increase the range and depth of content on the Afro-Ip weblog. We are still looking for more contributors, particularly from different countries within Africa, so if you would like to become part of the team please send an email here. You can also help the team by sending information or an article worthy of publication - we always disclose the source unless you tell us not to.

We are also delighted to announce that our beloved Afro-Leo is leaner and fitter following an intensive IP hunting course run by WIPO! Check him out alongside..

Sunday, 30 March 2008

Somali bank notes: is there a copyright issue?

Reuters reports on the continuing problems faced by Somalia's central bank, which plans to revamp the country's currency in the wake of a flood of fake notes printed by local warlords and businessmen. Speaking in Kenya, the bank's director general Sharif Mohamed Hassan said that "greedy" individuals had pumped counterfeit cash into the market for years, driving the local unit to its lowest-ever level. In 1990 the Somali shilling was worth around 930 to the US dollar; by 2001 it had fallen to 14,000 and was now around 25,000 shillings to the dollar.

While currency forgery is generally seen as a fiscal and criminal issues, there are also copyright issues involved: many countries make specific provision for the copyright protection of banknotes, while others regard them as falling within the general provisions relating to the protection of authors' works. A search of WIPO's CLEA database of national intellectual property laws failed to find any materials for Somalia at all. Can any reader advise as to what the copyright provision is there?

Friday, 28 March 2008

Stiglitz's "Making Globalization Work" in the dock

Writing for The New York Review of Books, Robert Skidelsky critically reviews Joseph E. Stiglitz's book "Making Globalization Work" in a clash piece entitled "Gloomy about Globalization". Skidelsky and Stiglitz (both heavyweight economists) comment on a number of issues affecting African countries, some previously reported on in this blog, including the tension between incentivising investment and R&D through robust IP regimes and access to drugs, and rules for traditional knowledge protection.

To whet your appetite, according to the review, Stiglitz, who was former advisor to the Clinton Adminstration and Chief Economist of the World Bank, "vigorously attacks the TRIPs" (trade-related aspects of intellectual property rights) agreement. Quoting from the review:

"TRIPs, he argues, have "imposed on the entire world the dominant intellectual property regime in the United States and Europe, as it is today." New drugs could save millions of lives in poor countries, but they are unaffordable because they are protected by patents that allow the drug companies to charge monopoly prices for a period of twenty years or more. By including patent protection in the World Trade Organization, he writes, American and European negotiators signed a "death warrant for thousands of people in the poorest countries of the world." Pharmaceutical companies should be forced to sell life-preserving drugs to poor countries at near cost—or face compulsory licensing of generic drugs that can be produced by, and traded between, developing countries. Stiglitz also wants to give poor countries reverse protection against what he calls drug companies' "bio-piracy"—exploitation of the traditional plant-based medicines of poor countries without paying for them.

Stiglitz raises the interesting question of whether, or how much, patent protection is needed as a spur to innovation, and in what fields. There is a case for arguing that such protection rewards trivial innovations, and slows down more fundamental ones by erecting barriers to entry into the market. It is also true that AIDS has shrunk life expectancy in southern African countries like Botswana, Kenya, Zimbabwe, Malawi, and South Africa. However, Stiglitz is wrong to single out TRIPs as the main obstacle to the use of antiretroviral drugs. As he recognizes, Brazil, another AIDS-ravaged country, simply disregarded the TRIPs regime and started manufacturing antiretroviral drugs on its own. In South Africa, by contrast, Health Minister Manto Tshabalala-Msimang denounced the drug nevirapine—used to prevent the transmission of HIV from mother to child—as "poison" to South Africa's women."

The book is available for sale here - ironically (given its content) only one price seems to apply to all.

MTN's yellow splash

There's a well-presented piece of journalism here in South Africa's Financial Mail, "Yellow Mettle", on the rise of telecoms company MTN, which has -- from an unpropitious beginning -- become a very major player in the region with more than 60 million users across Africa and the Middle East. The article mentions MTN's passion for covering all available space with its distinctive yellow livery.

Thursday, 27 March 2008

Shared computer use raises privacy, confidentiality issues

Writing for AllAfrica, Beatrice Gachenge reviews the position in Kenya of employees who have computers at their work stations. She explains that, instead of a PC for every employee, a single PC is being used by up to 10 people. Apart from efficiency problems, which occur when several employees are unable to work each time a PC crashes, there are issues of confidentiality and personal privacy when one or more employees are able to read documents and files belonging to their colleagues. The need for proper passwording practices is stated.

Wednesday, 26 March 2008

Kenya's call for anti-counterfeit legislation...amongst other changes

Abwao Oluoch writing for East African Business week reports that Kenya has outlined its priority legislative agenda for the East African Legislative Assembly (EALA), putting emphasis on laws that will fast-track the country’s post electoral crisis recovery efforts and consumer protection bills. At the same time, EALA law makers have pledged to roll out a series of legislations to facilitate regional trade, ease the inflow of raw materials and remove bottlenecks to regional trade in its legislative for this year, assembly members said early last week. In particular Kenya’s Trade and Industry Permanent Secretary, Mr. David Nalo called for the passing of an anti-counterfeit legislation this year.

The East African Community (EAC) region, which has been implementing a gradual integration programme aimed at eventually making the region into a single market, a monetary union and a political federation, has lately decided to train its attention on economic integration.

“The issue of anti-counterfeit legislation is so important. There is also need for harmonisation of the various rules and regulations regarding trade in the region,” Nalo said.

Tuesday, 25 March 2008

Netcare settlement rejected by SA Competition tribunal

In a case involving an application by the Competition Commission to confirm a settlement agreement of R6million (approx $800 000.00) reached between the Commission and the respondents (Netcare and the Community Hospital Group), the Tribunal refused to supply the order stating that they did not believe that the settlement agreement adequately safeguarded the public interest.

The settlement was made pursuant to section 49D of the Competition Act (the ‘Act’) for:

a) the implementation of a merger without the approval of the Competition authorities in contravention of section 13 A(3) of the Act; and

b) contravention of section 4(1)(b) of the Act, in that whilst not being members of a single economic entity, and being instead competitors, they adopted the same pricing structure for the tariffs charged by the hospitals in their respective groups

In particular, the Truibunal held that:

"Whilst we encourage parties to negotiate settlements with the Commission and believe this is in both the public interest and the interests of affected parties, we cannot sanction agreements which fall far short of the standard of an appropriate penalty..."

"...even though the respondents may have come clean when confronted at the time of the Commission’s non–notification investigation, the Commission is entitled and indeed ought to have had regard to the history of inconsistent explanations on the same issues before the Competition Authorities to assess properly the firms’ behaviour and degree of co-operation. If one or both of the respondents had been less than frank on this issue with the competition authorities this should be taken into account as an aggravating factor in assessing an appropriate quantum for the penalty. In our view, the Commission by failing to seek a satisfactory explanation on this aspect has given no consideration or insufficient weight to this issue in considering an appropriate penalty."

"Another criticism we have of the Commission’s approach is the fact that it entered into the consent order prior to the conclusion of the merger hearing."

"...the commission has failed to give due weight to certain considerations or taken them into account at all and has erred in calculating the affected turnover, an appropriate penalty, absent a satisfactory explanation to some of the concerns we have raised, should be substantially higher than the present one."

On "affected turnover" the Tribunal had this to say:

"IF NETCARES’ HOSPITAL TURNOVER IN SA WAS TAKEN INTO ACCOUNT AND ADDED TO THAT OF CHG, THEN THE PRESENT FINE WOULD CONSTITUTE A TINY FRACTION OF THIS FIGURE - LESS THAN 1%. THIS IS MINISCULE INDEED.."

For the full case click here

Sudan - better to stick to basics, not IT?

Writing in Global Research ("A New Asian-African Alliance? China supports Sudan's Economic Growth") Muriel Mirak-Weissbach waxes lyrical concerning the sudden surge of growth in Sudan in the wake of principally Chinese -- but also Indian and Malaysian -- investment. This is predicted to lead to Sudan becoming the breadbasket of Africa, with an infusion of Chinese technology in the building of dams and improved agricultural technology. This approach is vaunted as a better alternative to the usual route adopted nowadays, of investing in tech transfer in the IT sector.

Monday, 24 March 2008

Can you tell a "jeep" from a "Jeep"?

The South African arm of international automobile manufacturer Chrysler has objected to an advertisement by Indian vehicle maker Mahindra and Mahindra that uses the term "jeep", saying it owns the trade mark to the world's oldest sport utility vehicle. The Advertising Standards Authority of South Africa (ASA) is looking at the matter. Mahindra and Mahindra says it used "jeep" in lower case letters to denote the generic name for the kind of multi-purpose vehicles it makes.

Sunday, 23 March 2008

If education and pricing policy fail, says Adobe in Nigeria, we can still sue

AllAfrica reports that software giant Adobe has restated its commitment to the Nigerian Information Technology market, saying that it would use education and a realistic discount structure in seeking to stem the continuing flood of infringing activity.

Elastair deWet (Adobe Channel Compliance Manager, Middle East and Africa) is quoted as making this clear during the company's road show in Nigeria last week. Although he did not disclose the amount Adobe may be losing in the Nigerian market or globally, he noted that software piracy comes in many forms including licensed user duplication for unlicenced users, illegal internet distribution, illegal use of Adobe Acrobat over a network, distributing specialised education versions to unauthorized markets, and distributing inauthentic Adobe software or fonts. He added that, if education and pricing policy don't stem the tide, the comnpany will resort to the usual means of legal enforcement of compliance.

Saturday, 22 March 2008

CDM: good intention for tech transfer blighted by brokers?

According to the Africa Science News Service, Kenya’s civil society organizations (CSOs) are up in arms against brokers who have invaded the Clean Development Mechanism (CDM) of the Kyoto Protocol and are offering as little as US$20 per surviving 1,000 trees that are meant to sequestrate carbon. The brokers, mostly from the west, are busy seeking the support of local non-governmental organisations to help them sell the idea to farmers. Dr Dominic Walubengo, head of the Forest Action Network (FAN), is however adamant that the Kenyan CSOs will not sacrifice Kenyans farmers, telling Africa Science News Service that local NGOs are united in their position against these brokers. He added that, though carbon credit is a good idea at the international level, the intervention of brokers has the effect of denying benefits to farmers.

The article explains a little more about CDMs and their low rate of take-up:
"The CDM is supervised by the CDM Executive Board (CDM EB) and is under the guidance of the Conference of the Parties (COP/MOP) of the United Nations Framework Convention on Climate Change (UNFCCC).

One of the intentions in the creation of the CDM was to bolster Africa through technology transfer, community-level development benefits, enhanced private-sector investment and market development. Given the huge need for resources to support sustainable development plans in the region, and the seemingly large potential for CDM activities there, one might expect Africa to be a very active participant in the CDM.

However, the reality is the extreme opposite. Projects in Africa that had successfully journeyed through the formal procedures for developing and registering a CDM project numbered four by December 2005.

There were over 200 projects in various stages of development by this time, of which only a handful were in Africa.

Today, Africa has only 214 CDM projects most of which are either in South Africa or in the Northern parts of the continent".

Friday, 21 March 2008

Microsoft success in Botswana

In an article penned by Zeph Kajevu in Botswana's The Voice , it is reported that after a week's investigation Microsoft succesfully raided premises of computer salesmen selling their pirated software, with the help of the Botswana Police. According to the report "In total, six computers containing unlicensed versions of Microsoft’s Windows operating system and Microsoft Office applications on sale have been confiscated - in addition to 16 CDs containing a variety of counterfeit Microsoft software, all amounting to a total street value of P103, 000 (US$16 000). Five staff members, including the owners of these businesses, have been arrested on charges of copyright infringement and, if found guilty, they could serve a term of imprisonment or, alternatively, pay heavy penalties."

"The Botswana Polices Services, in accordance with the Copyright and Neighbouring Act of the Republic of Botswana, conducts raids against dealers of counterfeit and pirated materials across a wide variety of goods, including music, DVDs, software, clothing, pharmaceutical products and general consumer goods. Hlatshwayo [Microsoft’s anti-piracy manager for East & Southern Africa] said that the department has been met with much success in its efforts to combat piracy in Botswana, largely due to the support of the intellectual property owners themselves. In order to train law enforcement officials to identify pirated software, Microsoft has hosted several workshops for law enforcement departments in Botswana. These workshops have made it easier for the Botswana Police Services to find, catch and prosecute suspected software pirates in the country."

For other Afro-IP reports on Botswana, click here

For other Afro-IP reports involving Microsoft in Africa, click here.

Thursday, 20 March 2008

Freeworld buys Canadian coatings technology, with further options

Marketwire reports that the Canadian environmentally advanced coatings company Napier Environmental Technologies Inc. has signed a term sheet for the sale of its intellectual property outside North America to South African company Freeworld Coatings Global - makers of Plascon paints - for $5.25 million in cash. Napier will also grant Freeworld a one-year option to acquire its North American sales, marketing and manufacturing operations, including existing customers outside of North America. Should the option not be exercised, Napier would refund $100,000 to Freeworld. Should Freeworld exercise the option, among other conditions, they would be obligated to purchase the production equipment and inventory from the company at the then net book value, currently valued at approximately $550,000.

The transaction remains subject to regulatory approvals in Canada and South Africa. Says Andre Lamprecht, CEO of Freeworld Coatings Global:
"This acquisition furthers our intention of building on the essence of our brand, which reflects our vision of becoming an even stronger international force within the coatings industry and a world-class multinational company that is commercially, socially and environmentally responsible".

Wednesday, 19 March 2008

Bafana Bafana ASA ruling: update from Roshana

Two mobile phone networks slugged it out recently at the Advertising Standards Authority during an appeal to the Sponsorship Dispute Resolution Committee. MTN is the sponsor of an under-16 South African team, while Vodacom sponsors the national team, Bafana Bafana. MTN, when advertising the event it sponsored, captioned the advertisement 'Turning young men into Bafana Bafana'. Vodacom alleged that this contravened various articles of the ASA Code,including the ambush marketing prohibition in article 11.1.1 of Section10 of the Code, which states that no organisation other than the official sponsor may directly or by implication create an impression that its communications relate to a specific event or create an impression that they are the official sponsor of such an event. The ASA Directorate, while accepting that Bafana Bafana is the general term used when referring to the men's soccer team, held that the use of these words was not strictly necessary in the advertisement, and could imply a connection between the team and MTN. for this reason, it ordered that the advertisement be withdrawn. On appeal, the Committee ruled that Vodacom did not have exclusive rights to the name Bafana Bafana, as the name is in general usage and can be used by competitors provided they do not contravene the sponsorship code. MTN did not breach the ambush marketing provisions of the code (quoted above) as it referred to its own sponsorship in the advertisement and did not imply a link to the respondent's sponsorship.

Pirates turned enforcers?

In part comment to Jeremy's posting immediately below, according to a radio interview by BBC World Nick Rankin explains that the US economy claims that in 2007 it lost £58 billion pounds and 273,000 jobs due to international piracy. However he goes on to point out that "the United States were themselves the biggest intellectual pirates in the 19th century. British authors like Charles Dickens and Sir Arthur Conan Doyle had to fight to be paid any royalties for their written work in America. It seems like yesterday's pirates are today's enforcers." An interesting prognosis for China and hopefully, Africa too. To listen to the interview and Nick's investigation into modern day sea piractes off the coast of Africa, click on the link above.
Unfortuantely there is no delightful typo or faux paus to report on this time (except mine).

Who owns 'Africa Money?'

Writing in Modern Ghana, Weekly Fylla asks: "Who owns 'Africa Money'? Sidney or Kwaku Bonsam?". This article describes, in fairly graphic terms, the background and current state of an ongoing dispute between Sidney (right) and the members of the Mile-End Compilation crew. It is a must-read for anyone who wants to see how copyright law affects the lives and activities of individuals working at the rock-face of creativity. Oh, and there's also one delightfully funny typo ...

Listen to 'Africa Money' here

Monday, 17 March 2008

Namibia Industrial Property Draft Bill: Comments please

The final draft of the Namibia Industrial Property Draft Bill has been circulated for comment by the South African Institute of Intellectual Property Law. The 125 page document sets out to "...provide for the establishment of an Industrial Property Office and the appointment of a Registrar of industrial property; to provide for the grant, protection and administration of patents and utility model certificates; to provide for the registration, protection and administration of industrial designs; to provide for the registration, protection and administration of trade marks, collective marks, certification marks and trade names; to provide for the registration of industrial property agents; to provide for the establishment of an Industrial Property Tribunal; and to provide for incidental matters."

SAIIPL has called for comments through their various committee chairs by 30 April 2008. if anyone would like a copy of the draft Bill please send an email here.

Namibia counts cost of Ramatex closure

The sudden closure of the Malaysian Ramatex textile factory in Windhoek, Namibia, with the loss of 3,000 jobs, has led to a good deal of recrimination within Namibian political and commercial circles and debate as to whether the government made too many concessions in order to obtain the factory in the first place. While Namibia counts the cost, one of the questions being asked is whether there has been any net gain in technology transfer terms, through the acquisition of new technical skills by the company's mainly female workforce.

Sunday, 16 March 2008

SA SCA Decision on security of costs

In D W Zietsman v Electronic Media Network Limited Others, South Africa's Supreme Court of Appeal recently (7 March 2008) issued a media statement that it has "upheld an appeal against a judgment in the Court of the Commissioner of Patents in terms of which that court ordered a plaintiff who is resident in South Africa to provide security for the costs of three of the defendants [which included Vodacom and Multichoice Africa]. The SCA held that, in terms of s 17(2) of the Patents Act 57 of 1978, a court a quo had a discretion to order an incola plaintiff to provide security but that the court a quo misdirected itself in assuming that the parties were agreed, that in the event of it being found that an incola plaintiff could be ordered to provide security, only the quantum of such security had to be determined. The SCA thereupon considered all relevant factors and concluded that the plaintiff should not have been ordered to furnish security. One of the factors that weighed with the SCA was that the defendants had not disclosed a defence. The SCA stated that it would be quite unreasonable to order a plaintiff, an incola natural person, to provide security for the costs of an action instituted by him, at the behest of a defendant who may not even have a defence worthy of consideration."

One wonders why a court media statement contains words like "incola", "a quo" and "quantum" which can make its meaning difficult to digest. For the uninitiated an "incola plaintiff" is someone who resides in the country, the words "court a quo" mean court of first instance or court where the decision under appeal was made and "quantum" means amount or value. The latin terms reflect one of the origins of South African law which is Roman Dutch law. SA's IP laws, on the other hand, are largely influenced by English law whilst custom made law and US style constitutional law are additional ingredients in the SA legal broth, to which you can also add 11 official languages and then....smatterings of latin. Although the concoction can hardly be described as bland, there is a significant challenge to avoid it becoming tough, and alienating the man on the street. Posted by Darren Olivier

Friday, 14 March 2008

INTA topics and speakers of interest plus congrats!


The Afro Leo was browsing through the INTA Annual Meeting Brochure and noticed the following tasty morsels on Africa:

Enforcement in Africa as Trade Barriers Ease

Moderator:
Chris K. Job, Adams & Adams (South Africa) (and new chairman of Adams and Adams, again!)
Speakers:
Mondher Almensi, Al Mensi Law Firm (Tunisia)
William I. Maema, Iseme, Kamau & Maema Advocates (Kenya)
Obatosin Ogunkeye, Allan & Ogunkeye (Nigeria)
Kay Rickelman, Spoor & Fisher (South Africa)


Sport Sponsorship: Ambushes and Other Perils

Moderator:
Christian Rohnke, White & Case LLP (Germany)
Speakers:
Xuemin Chen, Zhongzi Law Office (China, PR)
Gérard du Plessis, Adams & Adams (South Africa)
David J. Gill - Trade Mark Attorneys (United Kingdom)
Julia Schönbohm, DLA Piper (Germany)

Trademark Protection Safari: Hunting for Effective Enforcement Strategies in Africa (hopefully not Lions!)

Marilyn Krige, Adams & Adams (South Africa)

*****STOP PRESS*****

The Afro Leo has just heard that his good friend and fellow country(person) Danise van Vuuren-Nield has just been appointed head of Global Trademarks for The Coca-Cola Company, based in Atlanta. Congratulations - a significant achievement indeed!

Thursday, 13 March 2008

Telkom v Internet Corporation -- SAIIPL hears appeal

A note by Daniel Greenberg (Lexsynergy) on the appeal by Telkom against the refusal of the initial adjudicator to uphold its complaint against the registration by Internet Corp of the phonebook.co.za and whitepages.co.za domain names has been published here on the IPKat weblog, together with a link to the full text of the SAIIPL decision.

Alteration of product expiry dates

The Nigerian Tribune has published a depressing Editorial, "Altering Product Expiry Dates". This piece states, in relevant part:

" ... Insecticide is used to destroy insects and protect lives and crops. A mosquito bite often means death in Nigeria. The gutters are swollen and stinking during the rainy season and mosquitos cannot imagine their good luck. Health ministries sprayed stagnant pools of water with insecticide in the past but not any more. It is a new Nigeria of fallen standards, selfishness and stolen wealth.

The National Agency for Food and Drug Administration and Control (NAFDAC) has accused a Lagos chemical company of something worse than selfishness. The agency accused the company of knowingly and coolly breaking the law, of endangering the financial health of farmers and the well-being of Nigerians.

NAFDAC’s Deputy Director, Regulatory Affairs, Mrs. Ariz Madukwe, said at a news conference last week that the company changed both the dates of manufacture and expiry of an insecticide called Endocap. The chemical is used to keep insects away from crops.

The senior NAFDAC official said the insecticide was manufactured in April 2006 and had a potent shelf life of two years. Any unsold stock should have been withdrawn at the end of April, but the company was caught relabelling the product. The company is now claiming that the product was manufactured in January 2008, though it was to expire in April. The new expiry date for a product manufactured in 2006 was now January 2010.

The company is apparently a well established one. It has offices on Victoria Island and a warehouse in Ikeja. NAFDAC said the company was engaged in the criminal alteration of the expiry date of Endocap at its warehouse.

Will the Endocap caper lead to the deserved end of the company? Not likely. Though NAFDAC’s deputy director of regulatory affairs said workers of the chemical company were caught, relabelling the product, nobody was apparently arrested. The company was merely sealed off. The company might have been engaged in the criminal alteration of the expiry date of its brand of insecticide for many years before NAFDAC was tipped off.

There are drug companies in Nigeria set up to manufacture or sell unwholesome drugs. They have foreign collaborators. One Italian pharmaceutical company was set up to manufacture and export useless drugs to developing countries, especially those in Africa. The company said it was doing Africans a favour after it was exposed by the London Sunday Times. It said Africans could not afford efficacious drugs. The company was closed down by the Italian authorities following an international outcry.

This happened in the 1980s, at a time Nigeria had no drug regulatory authorities to speak of. Expired drugs were shipped to the country and they were openly sold in pharmacies and patent medicine shops. A pharmacist was arrested for selling expired drugs, but he was not tried. His pharmacy was reopened after being shut for a few days.

Babies died in a teaching hospital after being given medicine for cold. Their parents wept while the manufacturer of the drug of death laughed while cuddling their blood money. There was an enquiry that avoided apportioning blame.

The coming of Professor Dora Akunyili as Director General of NAFDAC halted the haughty stride of the merchants of death. Adulterated or expired drugs were seized and burnt. Markets where dangerous drugs were sold were sealed off for a time.

Bad medicines make millions for the manufacturers and they fought back. They burnt down two or three NAFDAC laboratories and attacked some of the agency’s staff members. Some people were charged with trying to murder Professor Akunyili.

It is the only trial of people suspected of manufacturing, adulterating or selling harmful drugs as far as we know. And they were tried for attempted murder with the use of a gun and not the killing of unsuspecting patients who take poisonous or non-potent drugs.

Why has nobody been convicted of manufacturing or selling unwholesome drugs? Has it to do with the absence of the necessary laws? Or is their enforcement the problem? Is NAFDAC being given the security and legal assistance that it needs?

Punishments should swiftly follow crimes, especially when the lives of hundreds of thousands of people are deliberately put at risk by people seeking easy riches. NAFDAC should make an example of the owners of the company that altered the expiry date of Endocap, its brand of insecticide.

A mosquito may not be blamed, but those who manufacture or sell dangerous drugs and chemicals deserve to be jailed".

The truth of the matter is that, so long as the profit to be derived from the sale of products outstrips the profit to be derived from increasing value of the goodwill in a brand and then leveraging it, companies will be more tempted to relabel their products than to encourage the belief that medicines made under their names and brands are reliable.

Wednesday, 12 March 2008

Namibia to adopt Competition Legislation

NAMIBIA has become one the few countries in Africa that has taken the first steps towards the introduction of competition legislation. “Namibia was inspired by SA’s competition laws. Much of Namibia’s legislation is based on SA’s Competition Act,” says Nkonzo Hlatshwayo. At present only SA, Madagascar, Mauritius, Namibia, Malawi, Tanzania, Zimbabwe, and Zambia have adopted competition laws in Africa.

The Southern African Development Community (SADC) is raising awareness of the need for a competition regime at a regional level. SADC’s integration has called for the accelerated achievement of a free trade area (FTA), to be followed by a customs union in 2010, a common market by 2015 and finally a monetary union.

The Common Market for Eastern and Southern Africa (Comesa) is setting up a regional competition authority in Africa. However, SA and Botswana are not members of Comesa. Comesa has also put a customs union at the top of its agenda this year. The union, which would bring member countries under common external tariffs, is expected to ease the costs and processes of trade. It is expected that Comesa will have appointed commissioners for the regional authorities by July 1.The competition regional authority for Comesa is expected to be set up in Malawi or Rwanda, following the European Union (EU) model. For the full Business Day report click here. Posted by Darren Olivier

Tuesday, 11 March 2008

The W****D C*P of 2*1*: FIFA's intellectual property rights in South Africa

In an article entitled The W****D C*P of 2*1*: FIFA's intellectual property rights in South Africa co-blogger Roshana Kelbrick, writing for the Journal of Intellectual Property Law and Practice which is edited by Jeremy Phillips, sets out the various statutes that protect FIFA’s marks in South Africa and considers whether these marks are entitled to such extended protection. The South African Merchandise Marks Act 17 of 1941 was amended in 2002 to provide protection against ‘ambush marketing’. Section 15 of this Act gives the trade marks of designated international organisations protection that may far exceed what is available in terms of trade mark legislation.

For an earlier post involving FIFA, click here. Credit to Dr Wim Alberts for drawing this article to our attention. Afro-IP has offered a reward to those who can guess Roshana's title in full (without infringing FIFA's rights)! Answers on a postcard please.

Parallel imports of DVDs to be tested in South Africa

IOL reports that movie production company Universal City Studios and its South African subsidiary are suing 230-store DVD franchise Mr Video to stop it importing movies directly from the United States, complaining that this practice undercuts their cinema circuit profits. This dispute was triggered when Universal discovered that Mr Video was offering copies of popular romantic comedy Knocked Up in early November, before the movie had left the theatre circuit. Mr Video says the practice of buying DVDs overseas is "widespread" and that this issue affects the entire South African movie rental industry.

Universal also says that Mr Video would often remove the "zoning" chip that prevents DVD machines from playing DVDs bought in other parts of the world. Mr Video denies any wrongdoing, adding:
"The videos that are the subject of this application are not counterfeit or pirated copies of Knocked Up; they are copies which were made in the US by or with the permission of the copyright owner".
Mr Video has agreed to stop importing DVDs until the conclusion of the court case, which will be heard on 30 April.

Al Gosling's Extreme Group expand in Africa

The Extreme Group has teamed up with Retailcorp (the brand retailing arm of Nakheel and part of the Dubai World group of companies) to launch their EXTREME brand in South Africa in the cafe space. Al Gosling, CEO of Extreme Group and founder of the Extreme Sports Channel commented: “Our vision for EX Freshies was to create a place where consumers want to hangout – a cool alternative to overwhelmingly corporate cafés in malls and high streets around the world. Our mission was to provide the finest freshly prepared food with great service in an environment that reflects what we and the EX brand stand for.” The Extreme Group employs 247 people and operates in more than 70 countries around the world.

Monday, 10 March 2008

Patent update in Nigeria

Courtesy of David Garrick, Kayode & Co, Afro-Ip weblog has learnt that:

In May 2005, Nigeria became a signatory to the PCT but up till now the National Assembly has not ratified the treaty as required by the constitution. Nevertheless applications to file PCT Patents in Nigeria are accepted by the Registry. The Registrar of Patents has clarified that the date on which annuities are payable on PCT applications filed in Nigeria is as follows:

1. Annuities on all applications based on PCT Patents filed in Nigeria within the priority period specified in the Treaty are payable from the date of the filing of the International (PCT) applications on which the Nigerian applications are based.

2. Any application filed outside the priority period prescribed by the Treaty would be deemed to have lost its priority and would be treated as a local patent under the Patents and Designs Act. Cap. 344 Laws of the Federation of Nigeria, 1990; annuity would thus be payable on the anniversary date of the filing of the application in Nigeria.

The Registrar has also directed that with effect from 2008, a new Patent numbering system would be adopted as indicated on the Official Filing Receipt. posted by Darren Olivier

Sunday, 9 March 2008

Power of attorney in Morocco

Via NJQ & Associates comes news that the Registrar of the Moroccan Trade Mark Office (OMPIC) has revised the requirements for the Power of Attorney, as of 1 February 2008. The power must now be stamped and sealed by the applicant, with the name and capacity of the signatory being indicated clearly on the power. An advance copy, sent by fax or email, will be accepted for filing purposes.

More on Starbucks and Ethiopia trade mark row

According to the Daily Monitor and reported in AllAfrica here, Ethiopia has won trademark rights for its specialty Sidamo coffee in the United States and successfully completed the row with US coffee giant Starbucks. Afro-IP notes that the trade mark SIDAMO was registered at the USPTO on 12 February 2008 in the name of Government of Ethiopia National Government, claiming use since 1928.

The row between Starbucks and the Ethiopian government has received much press commentry over the last twelve months. Hopes of an alliance between Starbucks and Ethiopia had receded last year when the retailer objected to a plan to license rights to coffee brands in countries where they were not registered as trademarks. Although the Ethiopian governnment succesfully concluded an agreement with Starbucks, the agreement attracted criticism by Fairtrade commentators who felt that the royalty free licence provided little reward to the Ethiopian farmers.

It is good to see the Ethiopian government taking steps to protect and grow their intellectual property rights, and succeed. Signs such as Sidamo do face risks of genericism. Hopefully the licence agreement between Starbucks and Ethiopian Government is robust enough to ensure that Ethiopia can benefit from the extensive distribution networks of Starbucks. Ethiopia is Africa's largest coffee producer. Darren Olivier

Saturday, 8 March 2008

Botswana -- most free and least corrupt. Shame about the IP ...

Some encouraging news for Botswana: it scores very well in the 2008 Index of Economic Freedom assessment by the Heritage Foundation. While Botswana scores very highly on most criteria, the report faults that country for a restrictive standards regime, domestic bias in government procurement, and weak enforcement of intellectual property rights. Meanwhile, standing in 37th position out of 163 countries in Transparency International's Corruption Perceptions Index for 2006, Botswana is still the least corrupt country in Africa.

Friday, 7 March 2008

Science and IP in Addis Ababa -- a first-hand account

James Nurton, of Managing IP magazine, has been attending the Science with Africa conference in Addis Ababa this week. Afro-IP is delighted to hear from him first-hand as to what is under discussion. He writes:

"“Education”, “synergy”, “building partnerships”, “network building”, “renewed commitments”: this is how Africa is going to develop science, technology and innovation – at least according to the half a dozen distinguished ministers from around the continent who spoke at the conference on Wednesday this week. They did not address, however, why spending on R&D is less than 1% of GDP in most African countries or why, as Professor Edward Ayensu of the Council of Scientific & Industrial Research in Ghana pointed out in a well-received speech, why there had apparently been little progress since 1986, when he chaired a conference that promised much the same thing: “We pay lip-service to science and technology but don’t do anything about it … without science and technology we will never develop.”

A slightly different agenda emerged at the final conference session on Thursday, in a presentation called IdeaSolution, organised by BrainStore (who comes up with these absurd compound names?) which is “built on sound logic and Swiss precision” (their words not mine). In real-time, the 700 or so scientists, administrators and lobbyists attending the conference voted on 20 radical ideas to promote science in the continent, including an Olympic Science Games, an African science TV channel and a tax on luxury goods to fund R&D. The top three ideas, when the votes were counted, were:

* one sponsored science kit for every school (sponsored by who -- and what if they had an agenda?)

* an African Research Yearbook and

* advice on patenting indigenous knowledge (surely this would need some thought about novelty and prior art, not to mention the costs of protection and enforcement?).

This exercise did at least show that delegates are aware that IP has a key role in discussions about science in Africa, and especially one of the main failures so far – turning successful research into commercial innovation. Fittingly, “patents, IPR and technology transfer” was one of the plenary sessions and included five varied presentations – although there was probably little that would be news to readers of this blog. We heard how ARIPO offers protection in 16 countries and has recently offered a cut-price utility model to benefit SMEs, as well as providing training; how issues such as traditional knowledge and fair use are being discussed internationally; how studying patent documents can help businesses plan their strategies and innovate; and how technology transfer – if managed properly – can provide win-win benefits. There was also a mention of the new Pan-African Intellectual Property Organization (PAIPO) although I haven’t found anyone yet who really knows what it is doing or how it relates to other organizations.

Apart from one question, which wasn’t adequately addressed, there was surprisingly little criticism of IP rights or calls for alternative models. This may have been because those attending were IP standard bearers or it may have been because the Q&A session was moderated by Professor Sir Magdi Yacoub, a highly distinguished heart surgeon but by his own admission not well-acquainted with the subtleties of IP arguments. He pressed the speakers with questions about publication and the grace period, but they could not give him a uniform answer.

Despite superficial disorganization (a schedule that bore little resemblance to the published programme and which always seemed to be running an hour late) the organizers (UN ECA and African Union) remarkably produced not only a nine-page draft summary of the meeting in two languages, with 24 action points, but also a CD, distributed to all delegates before the conference closed.

Two of the 24 points related to IP: “(1) ARIPO, OAPI and PAIPO and the national IPR bodies should embark on intensive capacity building and awareness raising campaigns in IPR and patent issues; (2) African countries and their respective institutions should enhance their role as custodians of the governance of Africa’s indigenous knowledge and traditional artefacts by enforcing protection laws related to IPRs.” Nothing too revolutionary there. The Nigerian representative at the conference made some astute comments about what the draft summary said about IP, in particular that TRIPs was not mentioned, that protection in many countries is weak rather than strong and that patents should be seen as a separate issue from traditional knowledge.

This was a diverse conference, covering everything from IT to climate change, malaria drugs to transport. Perhaps too diverse. But the message was clear, and in the light of international focus on and investment in Africa, not to mention the Gates Foundation’s millions, it is well-timed: if Africa is to develop and address its health and environmental challenges, science should play a part. To do so, research needs to be commercialized, and as many speakers pointed out, that requires effective IP protection as well as venture funding and basic infrastructure. The most interesting presentation I heard was by Professor Peter Singer, who has led a study in three countries which suggests that research and commercialization are proceeding on “parallel tracks” in his words, both progressing but never meeting. That, he argued, needs to change (and he has some interesting proposals on how it can do so). I chatted to many of the delegates here, but did not meet a single African businessman/woman (among multinationals, I met one representative of big pharma; Microsoft was a sleeping sponsor; and someone from Nokia gave an interesting talk). When a conference like this attracts people from the private sector (whether factory owners, shopkeepers, pharmacists, grocers or even farmers) who want to use science to grow, then perhaps we will see some progress".

Ncube to lecture Swazi judiciary on copyright

Zimbabwe Music Rights Association (ZMRA) general manager Polisile Ncube is to attend a series of forums and workshops on copyright law to be held in Swaziland later this month, reports AllAfrica. Ncube, whose anti-piracy campaigning has been recognised by the World Intellectual Property Organization, will lecture on intellectual property laws to members of the Swazi judiciary, revenue authorities, duty and customs officials as well as musicians.

Wednesday, 5 March 2008

International Property Rights Index 2008

"The 2008 International Property Rights Index (IPRI) is an international comparative study that measures the significance of both physical and intellectual property rights and their protection for economic well-being. In order to incorporate and grasp the important aspects related to property rights protection, the Index focuses on three areas: Legal and Political Environment (LP), Physical Property Rights (PPR), and Intellectual Property Rights (IPR). The current study analyzes data for 115 countries around the globe, representing ninety-six percent of world GDP. Of great importance, the 2008 gauge incorporates data of PR protection from various sources, often directly obtained from expert surveys within the evaluated countries."

Ranking: top 20% Mauve, then Light Blue, then Green, then Yellow, the Red. White (apparently not researched).

Tuesday, 4 March 2008

Standard Bank ICBC deal completed

The JSE news service reports that Standard Bank Group has announced that the transaction in terms of which the Industrial and Commercial Bank of China Limited ("ICBC") was to acquire a 20% stake in Standard Bank Group has been completed.The equity investment is the largest foreign direct investment into South Africa and is a landmark transaction for Africa, according to this AllAfrica report. For other Afro-IP posts on Standard Bank click here.

Monday, 3 March 2008

BHP's answer to South Africa power outage problem

BHP Billiton Ltd., the world's largest mining company, plans to invest $975 million to expand a coal mine and processing facilities in South Africa to maintain exports amid rising prices for the fuel according to Bloomberg. Coal prices have apparently surged this year after bad weather and power outages cut output in countries including Australia and South Africa. The first coal from the new mining areas is expected by midyear and the new plant will be ready to receive coal by mid- 2010, BHP said. Mining operations are expected to extend until 2034, the company said. BHP also owns a 37.4 percent stake in South Africa's Richards Bay Coal Terminal, the world's largest export terminal for the fuel.

picture courtesy of Roshana

Madagascar to operate Madrid Protocol as from April

By Madrid (Marks) Notification No. 176, the World Intellectual Property Organization (WIPO) has announced that the Republic of Madagascar deposited, on 28 January 2008, its instrument of accession to the Madrid Protocol concerning the International Registration of Marks. Madagascar has announced that, in accordance with Article 5(2)(d) of the Protocol, the time limit of one year to exercise the right to notify a refusal of protection of an international application that the owner wants to extend to Madagascar is replaced by 18 months. The Protocol enters into force, with respect to Madagascar, on 28 April 2008.

Sunday, 2 March 2008

Lessons from Uganda trade mark decision

A High Court judge in Uganda recently held in favour of Anglo Fabrics & ano that Africa Queen & ano were infringing their registered trade mark ‘Mekako’ and passing off their medicated soap product. The plaintiffs were granted the injunction and the defendants ordered to pay SHs 10,000,000 (approximately $5800) plus costs (In The High Court Of Uganda At Kampala (Commercial Court Division) Anglo Fabrics (Bolton) Ltd And Ahmed Zziwa V African Queen Ltd And Sophy Nantongo). The case is interesting:

a. Speed: the case was filed on 16 October 2006 and judgment handed down on 22 February 2008. 16 months is not bad for a full trial.

b. Assignments: “an assignment [of a trade mark] is only valid to confer title after registration with the Registry of Trademarks” an unchallenged quote of the Assistant Registrar, International Property Rights, Ministry of Justice which the judge accepts. This has significant implications for brand owners acquiring or disposing of their trade marks who may best be advised to include a separate assignment recordal document (duly stamped) in their completion bundles, for immediate recordal in Uganda.


c. The tests for both infringement and passing off will be familiar enough to common law lawyers. For example, the Judge was guided by the five pointers in the English case of Reckitt & Coleman Ltd –Vs- Borden In (aka the Jiff Lemon case) for determining passing off. However, in applying the tests, the judge held that “[trade mark] infringement is analogous to the tort of fraud.” Fraud generally requires intent (which is absent in the normal test for trade mark infringement) and is a crime (which trade mark infringement, excluding counterfeiting, is not). The Judge was also able to establish passing off in a short paragraph, apparently, without reference to reputation in the getup. Getup, on the other hand, appears to form part of the Judge's reasoning under the infringement test.


d. The Judge acknowledged that Uganda is an ARIPO member state and appears to infer that a mark which designated Uganda would be enforceable, ignoring possible shortcomings of ARIPO. See earlier posting here.


e. The Court ordered that interest would be payable at the rate of 25% per annum. Darren Olivier

MEPs call for more involvement from African scientists

Last week Members of the European Parliament called for African scientists to be more involved in international collaborative science and R&D projects in order to keep and develop knowledge in Africa. The call came from members of the European Parliament's Committee on External Relations, adopting a joint resolution on the importance of supporting measures to improve international scientific cooperation with Africa.


Among other things, the MEPs have urged Member States to promote knowledge and technology transfer between the EU and Africa, together with R&D projects, under a new framework for action. The aim here is to achieve immediate and long-term goals for sustainable development, and accordingly develop policy and resources. Finally, the European Parliament called on the EU and the Member States to ensure greater consistency between the EU's international science and technology policy and the basic needs of African countries. This should lead to the development of a new global framework for science and diplomacy with Africa.