Thursday, 28 August 2008


EU-Egypt Action Plan: the IP details

Recommendation No 1/2007 of the EU-Egypt Association Council of 6 March 2007 on the implementation of the EU-Egypt Action Plan has just been published this morning on the website of the Official Journal of the European Commission. This recommendation has some IP content. In particular:
Recommendation 2.2.4

(c) Intellectual property rights

— Accede to the conventions within the timeframe stipulated in the Association Agreement and apply the standards of protection stated in such conventions or other conventions and agreements to which Egypt is party. Strengthen enforcements of IPR legislation within TRIPs requirements,
— reinforce the fight against piracy and counterfeiting and promote cooperation between the authorities involved, police, judiciary and customs. Significantly reduce circulation and trafficking of counterfeit/pirated goods,
— increase awareness at both public and private level and encourage the establishment and effective functioning of associations of rights holders and consumers,
— explore the possibility of enhanced interaction with other Euromed partners,
— initiate a policy dialogue covering all aspects of IPR, including further legal/administrative improvements and possible membership of additional relevant conventions, etc.
There is also something with an IP flavour in terms of technical cooperation:

"2.5. Science and technology, research and development, information society and audiovisual cooperation

(a) Science and technology, research and development

Accelerate the integration of Egypt into the European Research Area and the Community Framework Programme

— Start implementation of the agreement on Scientific and Technological Cooperation,
— put into place and ensure the well-functioning of a network of national contact points for the 6/7th Framework programme and link them up with the national RDT and innovation operators as well as with other EU Science and Technology activities,
— pursue EU-Egypt cooperation in RDT-I, identifying the priority sectors of mutual interest, the instruments and means of cooperation and implementation policies and strategies, including the promotion of links between centres of excellence on both sides,
— disseminate research results to all potential users, develop a ‘patent culture’ and set up intellectual property offices in technology parks and universities, including support for the introduction of a doctoral level programme in intellectual property law in the framework of the Agreement on Scientific and Technological Cooperation.

Develop the scientific and technological capacity with a focus on the use of RTD results by the industrial and SME sector

— Strengthen human, material and institutional resources in order to improve the capacities of RDT-I operators, including quality evaluation and management processes,
— adopt a strategy for regional technopoles with a view to organising a dialogue between all those involved in research and end-users (industry, SMEs) and implementing interaction mechanisms between research and industry, public-private sector,
— explore possibilities for EU support in the setting up and running of a National Fund for Scientific Research and Development".

I don't know (i) why it has taken so long for a March 2007 item to be published in the Commission's Official Journal or (ii) whether there has been any follow-up on the IP provisions and, if so, what. If any reader can enlighten me, I shall be delighted.
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Wednesday, 27 August 2008

Darren Olivier

Nigeria: the devastating effect of piracy

LeadershipNigeria has published an informative and well written "essay" by Michael Dibie on the damaging effects of piracy on global trade, stressing the extremely dire position in Nigeria which, according to the article, accounts for 80% of the pirated international music CDs. Apparently the piracy is so bad that the local music industry has actually called for a ban on the importation of music CDs. And it is not only the local music industry that is affected; the article cites the problems in the fast growing (yet hampered) Nollywood film industry book publishing and computer software. In addition, piracy is a cancer that spreads - with counterfeit product from Nigeria being found in Algeria, Senegal, Ghana, Zambia and South Africa. The "essay" is a worthwhile read for anyone interested in learning how the most populous country in Africa and greatest potential market for foreign investment on the continent, is crippled by the inability to properly deal with the problem - the request for stiffer penalties under local Copyright Act seems only part of the solution.

For more on the difficulties enforcing IP in Nigeria click here.
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Tuesday, 26 August 2008


Zim paper asks where Marley got his Buffalo Soldier

An article in the Sunday Mail, Zimbabwe, suggests that Jamaican reggae legend Bob Marley may have been a copyright infringer. The article cites similarities between the Banana Splits’ "The Tra La La Song" and Bob Marley’s "Buffalo Soldier". The Banana Splits first achieved prominence in 1968, whereas "Buffalo Soldier" was first released posthumously in 1983. The Bob Marley Foundation maintains that Marley would probably never have heard of the Banana Splits, let alone be inspired by them. However, a musicologist who asked not to be named for professional reasons maintains that the songs are "strikingly similar" -- and Marley's work is often inspired by, or otherwise reflects, African influences.
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Monday, 25 August 2008

Darren Olivier

Ecobank's $2.5 billion rights issue

According to Reuters and numerous other sources, Pan-African banking group Ecobank has launched a $2.5 billion rights issue and public offer on three West African stock exchanges in the biggest cross-border operation of its kind on the continent. The simultaneous offer will close on Oct. 3, ran on the exchanges in Ghana and Nigeria and on the West African regional bourse in Ivory Coast -- a range that encompasses 10 African countries in all. Ecobank, based in Togo's capital Lome, has more than 10,000 employees and more than 500 branches across 25 countries in Africa. It has expanded out of its traditional base in West Africa and in June bought a 75 percent stake in Kenya's EABS. The move follows this year's completion of the largest inward investment deal into South Africa by China's Industrial and Commercial Bank of China Limited, when they acquired a 20% stake in Standard Bank Group. Both positive signs for growth on the continent.
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William Kentridge and the fame name game

According to the Beeld newspaper of 25 August, a young South African artist has successfully applied to the Department of Home Affairs to change her name from something perfectly ordinary to William Kentridge, and now proudly displays an ID document bearing her photograph but the name William Kentridge. Her reasons - he is famous and 'she will feel successful if she is famous'. Her argument - Stella McCartney achieved success because she already had a foot in the 'fame' door thanks to her father. Fame comes from fame, and if you don't have it, you can adopt it.
What Kentridge thinks of this is not reported. Neither are the 'good and sufficient reasons' that she had to provide to the Department in terms of s26(2) of the Births etc Act 51 of 1992.
The artist announces that her change of name is 'the logical result of playing around with ideas about authenticity, legitimacy, intellectual piracy, copyright, imitation, counterfeiting and branding'.
So far, while this appears to be an instance of infringement of personality rights, so far she doesn't appear to have infringed any intellectual property rights. But she had better not sign any of her artworks!
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Darren Olivier

New Merchandise Marks Regulations 2008 for Tanzania - "A Giant Step Against Counterfeiting and Piracy"

This good news headline comes compliments of African trademark specialist Natalia Pereira who forwarded Afro Leo, Mkono's newsflash (August Mrema) summarising the regulations (see below) and concluding that the legislation is "A Giant Step Against Counterfeiting and Piracy" in the region (see earlier post highlighting the problem: "Houston, we have a problem" here). The Regulations were published in June and are now in force, according to the newsflash.

The salient features of the Regulations are as follows:

"a) The Regulations have established a task force known as Interdepartmental Task Force. The duties of the Task Force are to oversee the implementation of the Act and the Regulations. The Members of the Task Force shall be appointed by the Minister from the Attorney General Chambers, Tanzania Revenue Authority, Tanzania Police Force, Tanzania Bureau of Standards, Food and Drugs Authority and another representative from Public Officer (sic).

b) The Regulations have given various powers to the Chief Inspector appointed under the Act. For instance the Inspector has been empowered to conduct investigations on any breach of the provisions of the Act, to detain or seize any goods which he reasonably suspects to be counterfeits. He may also conduct a public inquiry in respect of any serious breach of the provisions of the Act or Regulations. Furthermore, the Chief Inspector has also been empowered to conduct summary proceedings against any suspects upon receiving a complaint from any person who has reasonable grounds to suspect an importation or exportation of counterfeit goods or pirated goods in violation of his IP rights.

c) The Regulations also provide for the establishment of Zonal offices in various places of the country to combat counterfeiting.

d) Under the Regulations an appeal against the final decision of Chief Inspector shall lie to the Fair Competition Tribunal, a quasi Tribunal Established under the Fair Competition Act 2003 and chaired by a judge of the High court

e) The Regulations have prescribed measure to be taken at the border by empowering the Customs Officials to seize any goods imported or exported which are suspected to be counterfeits products or any goods which are suspected to violate the IP rights of any person that are recognised under the Act or any other written law.

f) The Regulations have also provided for the possibility of obtaining ex-parte search orders (Anton Piller Orders). The search order can be obtained from any District Court by the Chief Inspector or any IP right holder authorising the entering and searching of any premises suspected to contain counterfeit goods.

g) The Regulations also contain provisions for seizure, detention, storage and disposition of counterfeit goods.

h) The Regulations have also provided for application for obtaining freezing orders (Mareva injunctions) from the Court to enable the Applicant to have the Respondent’s asset frozen so that they cannot be dissipated from beyond the jurisdiction of a court to frustrate the final order or judgement.

i) The Regulations have also prescribed the fees and fines payable for offences committed against the Act

j) The regulations have also provide for a mechanism under which suspected offenders may be committed to the Director of Public Prosecution for criminal prosecution for importing, exporting or dealing in counterfeit goods which endanger health and public health of the inhabitants of Tanzania

k) The Regulations also contain a Scheduled with various prescribed forms which may be used to commence an application either before the Chief Inspector or Custom officials."
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European retail brands: how relevant is their experience for Africa?

Today's Business Daily carries an article, "Rise of retail brands is based on a holistic set of strategies", by Richard Mukoma (Chief Executive, Interbrand Sampson East Africa). This feature explains in fairly basic terms what a retail brand is, listing Uchumi, Nakumatt, Ukwala and Tuskys -- all supermarket brands -- as leading retail brands in Kenya.

The author asks: "So how do retail brands create their value and what lessons can we learn from the leaders?", answering this question by reference to Interbrand's own research in Europe. The findings indicated that almost two-thirds of the top-performing European retail brands offered private-label products, with three of the top five brands selling only private-label products.

The question that this article does not answer is how far the experience of the leading European retail brands can be made relevant to the development of retail brands in Africa. The big retailers in Europe had the advantage of being able to leverage their relationship with consumers on the back of the huge advertising spend of the independent brands they originally sold, in a market in which private -label brands could flank the independent products by offering no-frills low-priced products as well as high-priced premium products. How well would this work in Kenya? Readers' comments are welcomed.
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Friday, 22 August 2008

Darren Olivier

Namibia Industrial Property Draft Bill - update

Fellow blogger Paul Asiimwe reported that Brigitte Weidlich of The Namibian had stated that the long-awaited bill to protect industrial patents, trademarks and industrial designs in Namibia was in its final stage and might head to Parliament before the end of this year, according to the Ministry of Trade and Industry. Readers may recall that the Bill was circulated for comment by the SAIIPL and the Afro-Leo has heard nothing further. Those who took part in the discussion on the Bill would have recalled that a number of queries and comments had been raised. Afro-IP also received a number of requests for copies of the Bill by interested parties and was asked to put forward comments to the relevant SAIIPL committee. If anyone can enlighten this blog, either as to the progress of the Bill or the attitude toward the comments, we would be most grateful.

In the meantime, this blogger attended the Adams and Adams centenary function last night at the "Palace of Justice" in Pretoria last night, which was a wonderful occasion to meet who's who in the local RSA profession and hear some good speeches. It is refreshing to note that despite the competitive tensions between firms, the centenary was exceptionally well supported by rival firms, which is a credit to both the profession and also, the centurions. One memorable conversation involved a lively discussion on the pros and cons of compulsory sabbaticals for partners of firms. Perhaps an idea for Afro-Ip's second poll? Congratulations to the centurions, again!
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Thursday, 21 August 2008


"Design Africa" programme -- a springboard for top-end export

About five minutes ago the July/August issue of WIPO Magazine came out. It contains an article, "International Home Decoration Market Beckons Africa’s Designers", by Sylvie Castonguay (WIPO Magazine Editorial Team, Communications and Public Outreach Division). Among other things, this handsomely illustrated article explains the background to the Design Africa programme, which was launched in 2006 by Canada’s Trade Facilitation Office (TFO Canada) to assist African home decoration companies in reaching the international market place with some stunning items that have been crafted for the top end of the market. The article records that 19 SMEs in five countries (Ethiopia, Ghana, Mali, Senegal and South Africa) are now part of the programme, adding that "The Design Africa brand serves as an example for creators on how to market their products internationally".
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Wednesday, 20 August 2008

Darren Olivier

Afro-IP's First Poll

Do you think FIFA's 74 registered RSA trade marks for SOUTH AFRICA 2010 and WORLD CUP 2010 are capable of being cancelled as being non distinctive?

This question follows the recent posting on Afro-IP (courtesy Roshana) IPKAT (courtesy Jeremy) here and here (see "World Cup Woes"), and is particularly important in the run up to the World Cup 2010 (oops, am I infringing?) in South Africa.

Cast your vote alongside - it's anonymous.

Roshana is interested in receiving the BOA decision as soon it is to hand and can be contacted here.
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Legatum Prize seeks out profitable innovators

The Ghanaian Times reports that ten African countries have been selected to participate in the 2008 Legatum Pioneers of Prosperity Africa Awards programme, which "recognises and rewards business leaders of Africa who serve as role models to the continent’s aspiring entrepreneurs and demonstrate business excellence, innovation and profitability" [a noble aspiration indeed].

Privately-owned Legatum, in collaboration with S.E.VEN (Social Equity Venture Fund) and the OTF Group, is accepting submissions from (in alphabetical order) Botswana, Cameroon, Cote d’Ivoire, Ghana, Kenya, Namibia, Nigeria, Rwanda, South Africa and Uganda. More than 1,200 businesses from those countries are expected to submit applications. Atotal of $350,000 will be awarded to the winners, who will be selected on their ability to operate truly sustainable and innovative businesses.

The winners of the 2007 Awards were profiled in the documentary film "Unlocking Africa", directed by Jeff Zimbalist, which Afro Leo and his friends can watch here.
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Tuesday, 19 August 2008

Darren Olivier

Mr Video appealing

According to a report in the Cape Argus Mr Video has been granted leave to appeal against a ruling injuncting it from obtaining Zone 1 DVDs from US distributors instead of obtaining them through Nu Metro and other copyright holders. The judge in the Cape High Court ruled that there was a reasonable prospect of another court coming to a different conclusion. Readers can come to their own conclusions by reading Afro-IP's earlier digest here.
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Monday, 18 August 2008

Darren Olivier

Adams & Adams centenary

The partners of Adams & Adams are hosting a cocktail reception to host members of the Judiciary and the Legal Profession on the occasion of the firm's Centenary

Date: Thursday 21st August 2008
Venue: The Palace of Justice
Church Square Pretoria
Time: 18h00 for 18h30 - 21h30
Dress: Cocktail, business or traditional attire
By invitation only

Afro-IP congratulates them!
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World Cup Woes

FIFA's many trade mark applications and registrations in South Africa, in preparation for the 2010 Soccer World Cup, are looking less secure after reports that the OHIM Board of Appeal upheld Ferrero's objections to the FIFA community trade mark registrations for the German 2006 Soccer World Cup. The Board of Appeal cancelled five word marks, including World Cup 2006, Germany 2006 and World Cup Germany. The decisions have not yet been posted on the OHIM website but will no doubt make interesting reading when available. And while they have no legal effect here, they will be of persuasive value should any attack on FIFA's South African rights be launched.
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Fertilizers, cement found in fake products

Mmegi online reports that the Zambia Police Service has raided several companies that were believed to have been producing counterfeit goods over the past 10 years. Fake products seized included body lotions, confectionery and leading brand products such as Vaseline ointment and Johnson & Johnson baby powder. The head of Zambia Police's anti-piracy squad has indicated the possility that some of these illegal goods were imported from the SADC region. The police found that some of the goods seized contained ingredients such as fertiliser and cement. Many of the fakes are easy to spot since they bear no dates of manufacture or expiry.
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Friday, 15 August 2008

Darren Olivier

Academic Wranglings: Copyright in collaborative works of a scientific nature

Tim Ball of Brian Bacon & Associates has kindly sent Afro-IP an interesting judgement concerning the question who owns copyright in a research article based on the collaborative input of two academics working out of the University of Cape Town. In the case of Peter-Ross v Ramesar Judge Desai was asked to adjudicate on facts which roughly go as follows:

Peter-Ross and Ramesar worked together in developing the idea that the genetic location of bipolar disorders can be improved by concentrating on patients who were not only bipolar but also had some other genetic disorder. Although there is some dispute as to the nature and extent of their collaboration, a draft article (the "Draft") was prepared by Peter-Ross at the end of 2004 citing both academics as its authors. Their relationship then broke down. In 2006 Peter-Ross informed Ramesar that she had written and submitted an article (the "Article") for publication to Molecular Psychiatry. Ramesar informed the publication that he was to be joint author and the publisher stopped publication. Peter-Ross then sought a declaratory order that she was the sole copyright owner in the Article (copied almost entirely from the Draft) which Ramesar resisted.

A precursory issue was the involvement of UCT and the extent to which the university had control over the publication of the Article. In addition, counsel for Ramesar suggested that even if Peter-Ross were to succeed, the result would be practically "academic" because the article would infringe the jointly owned copyright in the Draft. Unfortunately the judge did not venture an opinion on the legal position of UCT (Afro-Leo suggests that this might be contractual or otherwise governed by legal provisions relating to works created under employment conditions, if relevant). However, it is a useful judgement for determining criteria for joint ownership in collaborative works, particularly in situations where one of the collaborators does not actually do any work on the final piece in which he/she claims copyright but was apparently intimately involved in the work up to that point. The analysis brings into play the tension between ideas and their expression and when copyright begins to exist and then, who then owns it. The Desai J held as follows:

"In between these two situations [the simple idea & the literary/artistic expression] there are a variety of scenarios where it would be unwise to focus exclusively on contributions to the physical expressions of the work. One such case is where two persons agree they will research and co-author an article. The ideas are quite obviously more important to the collaborators if the article is on a scientific topic. If they research and settle on the ideas to be recorded and it is left to one of them to produce a draft, there seems to be no reason why they should not be recognised as having jointly "made" or "created" the draft.

Where the ideas to be recorded are the product of collaborative endeavour and the one has undertaken the physical recording of the ideas the collaborators could properly be regarded as having jointly "made" or "created" the work. What distinguishes this type of case from the situation where it is said that there is no copyright in ideas is that there is collaboration from the outset and the contributing of ideas does not occur in vacuo (in an a vacuum) but is directed towards the creation of a literary work."

The Judge then held that the use in the Article of the reproduced text infringed the copyright in the Draft held jointly and therefore Ramesar's consent for such reproduction was indeed required. As almost the entire Draft had been copied in the Article Peter-Ross was not entitled to a declarator that she was the owner of the copyright in the Article. "...if it is accepted that the Draft is a "literary work" and the reproduced text in the Article is simply a copying thereof, it is sufficient to preserve the first respondent's [Ramesar] status as co-author of the reproduced text....the Article was the end product of the collaboration to which the parties had committed themselves in their agreement." Desai J then held that collaborators were co-authors not only of the reproduced text but also the additional text (which could not be regarded as something two which Peter-Ross had exclusively contributed), and thus the entire Article.
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Asiimwe Paul

Trademarks Bill 2008 Finally gazetted in Uganda

The Government of Uganda has filally gazetted the Trademarks Bill 2008 after a protracted process of review spanning over 5 years. According to the memorandum, The new law is expected to meeet the demands of "present day policies, international obligations, globalisation and technological developments". The other reason is that the current law is perceived as one that impedes investment as a result of inadequate protection provided under it.

Below are some highlights of the bill, soon to be tabled:

1. The definition section of the bill brings the much awaited provision that allows registration of service marks. The definition reads as follows: "trademark means,a sign, or mark, or combination of signs or marks capable of being represented graphically and capable of distinguishing goods and services of one undertaking from those of another undertaking".

2. The bill provides more extensively for the registration of certification marks in comparison with the existing Trademarks Act cap 217. In particular, it provides that certification marks will only apply to goods and not services.

3. The Length of Protection for first filings remains the same at seven years. For unknown reasons however, renewal periods have been reduced from 14 years under the existing law (see s. 22 of the Trademarks Act, Cap 217) to 10 years.

4. The bill provides under S.45 and 46 priority rights for marks already registered in countries of origin on the basis of reciprocal treatment.

5. The Bill provides more explicitly for remedies in the event of infringement. These include:
*prohibition on import of goods bearing an infringing trademark
*prohibition on export of goods bearing infringing trademarks
* damages or rendering an account for profits
*cancellation of trademark registration

6. The Bill requires applicants in proceedings challenging the registration of a mark who reside outside East Africa (Rwanda, Burundi, Kenya, Tanzania and Uganda) to provide security for costs. This requirement also applies in applications where an applicant seeks to expunge a mark from the register under s.46.

7. Offenses under the Penal Code Act, Cap 120 relating to trademarks are subsumed under the new bill. More importantly, the bill creates new offenses and provides new penalties as follows:
*falsifying a registered trademark
*falsely applying a registered trademark
*manufacture and possession of things used in an offense.

The fines proposed are a maximum of 48 currency points or imprisonment for 2 years or both. Whereas the prison sentence may be of some deterrence, its hardly likely to dent the enthusiasm of well connected business people dealing in counterfeits, some of which are dangerous to human life. The bill needs to reduce the judicial discretion in applying sentencing and increase the monetary fine from the proposed 48 currency points (960,000 shillings or about US$500 to the equivalent of US$100,000. This will act as a more realistic deterrent and discourage the rampant import counterfeit medicines which pose an unprecedented threat to health in Uganda and the East African region at large.
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Thursday, 14 August 2008


China condemns its own export of fakes to Tanzania

Remarkably, according to an article in the Daily News, China has issued an expression of regret concerning the inflow of its own counterfeit goods into Tanzania, calling for joint international efforts to stem the inflow. This comes with an admission from China's Special Envoy on African Affairs, Liu Guijin, that Chinese fakes had undermined the credibility of his country's products and that there was a need to fight the problem through customs. He said:
"We need to come up with a joint approach to tame this illegal practice through tightening control at the customs".
It seems to this writer that, since the counterfeit goods emanate from China itself, and its controlled economy is better equipped to monitor goods before they leave the country than it for the poorly-resourced Tanzanian customs to stop them entering the country, China should be prepared to take full responsibility for its own infringing exports.
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Wednesday, 13 August 2008


Gambia: extension of UK registered rights

This week the UK Intellectual Property Office has updated its guidance on the extension of UK intellectual property rights abroad, revising its information concerning The Gambia. Following the coming into force last year of the Industrial Property Act, the position is as follows:
* An application for a patent based on an existing UK patent, made within three years of the UK date of issue, will normally be granted and the patent will expire at the same time as the UK patent.

* An application for a patent based on an existing European patent designating the UK, made within three years of the date of issue registration, will also normally be granted, the patent expiring at the same time as the with EP(UK) patent.

* An application for registration of a trade mark must be made within four months of the UK application, giving the UK filing date as the priority date.

* UK design registrations are automatically extended.
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Asiimwe Paul

Gifted by Nature to be revived

The Government of Uganda has resurrected the Gifted by Nature(GBN) logo as a way of promoting Ugandan products under a common mark.

Although it is not entirely clear whether the Gifted by Nature initiative will continue with the previous logo, the New vision newspaper reports that soon, all manufacturers and exporters will be required to have the logo on their goods. According to Janat Mukwaya, Minister of Trade and Industry, the practice would start this year to reinforce the promotion of a positive image and branding of Uganda. What is not clear yet is how this mark will differ from the existing Uganda National Bureau of standards quality mark.

What will be more challenging however will be ensuring conformity with set standards and fighting counterfeits bearing the Gifted by Nature logo.

It would be even more interesting if the Government decided to use the mark as a certification mark for both goods and services. This alone would help fast track the passing of the Trademark marks Bill which is long overdue. According to the Minister of Trade in the article above, Hotels are some of the entities that will may use the Gifted by Nature Logo to market the country. If these efforts come to pass, they will go a long way in enhancing the brand value of Ugandan companies and goods, especially in the services industry that have no explicit protection under the Trademarks Act of Uganda.
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Darren Olivier

Help please: biotekkie in despair

Ugreson Maistry has written to Afro-IP with a problem relating to lack of information on the law pertaining to Biotechnological inventions in South Africa. Ugreson is currently situated in Germany writing Masters Thesis in Biotechnology Patent law. His problem is that is that he has not found any source of material which outlines the South African position. Thus far, he has been using trusted sources such as Burrell's Patent law text book (1999) and Gernholtz's Patent law textbook (1971) but neither book has a specific focus on Biotechnology.

Would any reader be able to direct him to:

1. Any textbooks that might be of help in outlining the legal position relating to the protection of biotechnological inventions;

2. Any articles that would be of help in outlining the legal position relating to the protection of biotechnological inventions;

3. Recent case law that I would need to be aware of that relates to biotechnology.

Ugreson can be contacted here.

Afro-IP suggests these posts to further his thoughts on the subject. The very fact that there appears to be a dearth of information relating to the subject suggests that Ugreson's topic is well chosen.
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Tuesday, 12 August 2008


Kenyan camel milk brand wins FDA approval

Business Daily reports that Vital Camel Milk, sub-Saharan Africa’s only processed camel milk brand, has broken into the world’s biggest economy after a two-year application process. The product has finally received the approval of the Food and Drugs Administration in the United States. Now that the FDA has certified it, the product can be exploited commercially throughout the US.

The milk is processed mainly from the company's plant in Nanyuki, Kenya, under an initiative supported by Northern Rangelands Trust, a non-governmental organisation that promotes community-based conservation and economic initiatives in Northern Kenya. Last year Vital Camel Milk threatened to relocate its operations to Ethiopia and Northern India, due to the slow pace of at which the Kenyan government was moving in placing measures to regulate and develop the industry.
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Monday, 11 August 2008

Darren Olivier

InVenFin venture : seed capital

According to Engineering News, Investment holding company VenFin has broadened it scope of potential investment opportunities with InVenFin, an early-stage intellectual property venture capital fund. VenFin is the sole shareholder in InVenFin, and has committed R50-million in seed capital."We have established InVenFin to provide specialist funding and support to inventors at an early stage, to develop their intellectual property and eventually succeed in corporatising it," says VenFin CEO Jannie Durand. He notes that VenFin has several large companies in the group, which means that smaller opportunities may be overlooked - a problem which can now be solved through InVenFin. Kieser (deputy chairperson) is a former chairperson of Enterprise IG. The CEO is Brett Commaille, formerly from Standard Bank. Other board members include John Newbury, former CEO of Nissan, patent and intellectual property attorney Don MacRobert, and design and branding specialist Kees Schilperoort. InVenFin's investment will typically vary between R500 000 to R10-million, says Commaille.

Afro-IP has reported on a number of other initiatives used to stimulate a knowledge based economy in South Africa including The Technology Innovation Agency Bill and the Tax Incentive Guideline.
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Friday, 8 August 2008


New initiative, more jobs for bureaucrats?

In "Anti-Counterfeiting Initiative Aimed At Protecting African Medical Industries", written for the excellent IP Watch, Wagdy Sawahel reviews the communiqué that followed “Protecting the consumer against counterfeit products through interagency and sub-regional collaboration,” a workship organised by the Food and Drugs Board in collaboration with the Ghanaian Institute of Packaging and the coalition against counterfeit and illicit trade. The conclusion of the workshop was that
"West African people should establish a medical anti-counterfeiting task force to promote local herbal medicines by protecting indigenous knowledge and genetic property and establishing benefit-sharing systems in addition to tackling the spread of cheap, fake medicines that are causing an unnecessary loss of life".
To protect the local medical industries, this task force would prepare a mechanism for reporting counterfeit issues, including its harmful effect on local economy and health, launching awareness creation programmes as well as advising governments and local companies on ways to increase the use of security features on their products including medicines, cosmetics and medical devices.

The bit that depresses this writer is this:
"Besides having a permanent secretariat and four subcommittees, namely, legislation and regulation, public education and awareness creation, information and intelligence gathering, and human resource and capacity development, the task force is expected to have representatives from government, industry, trade associations and consumers".
This is another example of the establishment of bureaucratic structures in response to devastatingly dangerous threats to health, safety and the economic well-being of millions of people.

The counterfeiters are tremendously successful. They make large sums of money with the willing connivance of many helpers, including distributors, retailers and in many cases consumers. They pay no taxes and, despite the large scale of their combined operations, take surprisingly little risk. Notably, they have no secretariats, executive structures, committees, subcommittees, governing bodies, task-forces and panels of experts representing industry, government and consumers. It is increasingly becoming the belief of this writer that the only effective way to deal with counterfeiters is to run anticounterfeiting operations in much the same way -- little or no bureaucratic burden, short chains of command and control, adequate funding at ground level and financial incentives for success. Do any of the readers of this weblog think along the same lines?
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Thursday, 7 August 2008

Darren Olivier

More on the case against Compulsory Licensing: AIDS

Writing for the New York Post, Thompson Ayodele of - a public-policy think tank based in Lagos, again sets out his case against compulsory licensing. This time co-inciding with the 17th International AIDS Conference in Mexico where 25 000 people are gathered to attend. Thompson's case is "that the focus on patents and the practice of compulsory licensing isn't just a distraction from the real issues: It also threatens the safety of many AIDS patients." In support he cites that:

* In some African countries (notably Nigeria, Kenya, Tanzania, Kenya and Sierra Leone) duties and taxes on medicines drive the costs through the roof.

* Government regulations also add to the price of drugs. It takes the South African government more than three years to grant regulatory approval for medicines already available in developed countries.

* Drug companies already sell their drugs to poor countries at prices well below cost. Just this year, GlaxoSmithKline, Merck and Pfizer donated $450 million worth of drugs to Burkina Faso; and

* A lack of investment in infrastructure (see earlier post summarizing his views here).

* Citing India as an example - as a result of poor-quality knock-offs that don't have to pass the same safety tests as their brand-name counterparts, drug resistance is on the rise.

He concludes that "if this week's conference is to have an impact on the growing AIDS pandemic, the participants need to get their priorities straight. Improving medical infrastructure and lowering tariffs should be their chief concern - not weakening drug patents."

I would suggest that access to proper drugs is compounded by the significant problem of counterfeit drugs on the continent (see earlier posts here).

For further posts (and comments) on the issue click here, here, here, here, here and here.
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Wednesday, 6 August 2008

Darren Olivier

The Harmonization Debate: Southern African Customs Union

In a well composed piece in AllAfrica Tsidiso Disenyana sets out the economic need for the proper protection of IPRs in SACU countries and the advantages of (and challenges facing) harmonization within SACU. SACU claims to be the oldest customs union in the world and consists of South Africa, Botswana, Lesotho, Namibia and Swaziland. Tsidiso Disenyana argues too that intellectual Property Rights can no longer be seen as a category separate to trade matters.

Quoting from the piece, the advantages of harmonization would be:

"Firstly, given that the Sacu member states have relatively low patent filing numbers and that pooling of resources and manpower is likely to result in increased efficiency and decreased expenditure, the benefit is self-evident. Secondly, it is probable that a more efficient regional IPR system will aid in increasing the acknowledgement and enforcement of IPR and that this might, in turn, lead to an increase in investment and economic growth.

Thirdly, as harmonisation efforts tend to strengthen IPR, member states that harmonise their legislation will tend to comply with the WTO's Trade Related Aspects of Intellectual Property Rights (Trips) agreement. Lastly, from the investor's perspective, harmonisation of IPR legislation will provide familiarity and legal certainty that will boost investor confidence in the region."

BUT he discusses too that "Conversely, some argue that harmonisation and high IPR standards might not be a recipe for innovation, investment and economic development in the region. Empirical research on East Asian economies such as Singapore and the Republic of Korea suggest that capital accumulation and not high IPR standards played a key role in their growth and development.

Social capability to absorb and master foreign technology was also vital. Sacu could learn from that experience.

In this light Sacu member states should cautiously assess whether the capacity of their domestic policy and regulatory framework will permit them to balance their interests. Otherwise it is unwise to accede to commitments that will strain domestic capacity and could lead to the application of rules in a more restrictive manner than the harmonised system requires."

And concludes that "Not only have IPR issues been raised and stumbled over time and time again in multilateral and bilateral agreements, but if knowledge is not incorporated and protected in Sacu economies, it is unlikely that the region will stand any chance of competing in the global economy on an equal footing."

Of course, harmonization has been a trend within the world IP community for a few decades now and seems unlikely to abate. The trend is fuelled by factors such as globalisation, ease of communication through the Internet and the need to allow easier trade between countries all over the world. The growth of global legal and accountancy firms and consolidation in this area is also an example of how the service industry has reacted to the the phenomenon. So, in a sense it is not surprising that Tsidiso Disenyana sees significant advantages in harmonizing SACU's efforts. He seems sensitive to some of the difficulties too.
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Tuesday, 5 August 2008

Darren Olivier

Trademark and IP Practice Skills Course - RSA

SAIIPL and the Law Society of South Africa are presenting an introductory course on Trademark and IP Practice aimed at 15 practising attorneys from "previously disadvantaged backgrounds". The course is fully funded by Safety & Security Sector Education Training Authority as a pilot project for people interested in pursuing a career in this field.

The program seeks to:

- help candidates to understand and explain fundamental concepts of trade mark law;
- identify and advise clients on IP related matters with specific reference to trademarks;
- help candidates pursue a career in the field of trademark practice; and
- provide excellent preparation for ultimate qualification as a trademark practitioner.

Training is scheduled to run from the 2-4 October followed by at least 20 hours of "mentoring by IP specialists on real case scenarios through hypothetical scenarios" whereby a confidentiality agreement would be signed by the candidate. IP Leo assumes this step is to protect the company rather than the information imparted by the specialist but wonders if it wouldn't be easier if the case study was simply, hypothetical or based on that company's publically available information (which all their trade marks would be). Nonetheless, a course like this is dearly needed in RSA where there is a dearth of IP skills.

Applications must reach Ashley Mashaba (+27 21 441 4600) on or before 15 August 2008.
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Monday, 4 August 2008


Kenya: Anti-counterfeit Bill published

The Anti counterfeit Bill, 2008 has been published for introduction to the National Assembly. According to the memorandum of objectives and reasons, the Bill seeks to “prohibit trade and all manner of dealings in counterfeit goods”. An electronic version of the Bill is available here.

The Bill appears to be more of an arm for enforcing against infringement of IP rights available under various pieces of law in Kenya. The provisions of the Bill also seems to be geared towards domestication or fulfilment of the requirements of part III of the TRIPS agreement, which in essence obligates members to put in place enforcement procedures and remedies to deter infringement of intellectual property rights.

The Bill defines counterfeiting in terms of various actions done “without the authority of the owner of any IP right subsisting in Kenya or elsewhere in respect of protected goods”. The Bill further recognizes intellectual property right as any right under (a) the Copyright Act, 2001, (b) the Seeds and Plant Varieties Act (plant breeders’ right), (c) the Trade Marks Act and (4) the Industrial Property Act, 2001[patent, utility models and designs]. Considering that IP rights are territorial, it does not make sense why the Bill would require an IP right to subsist “in Kenya or elsewhere”.

It is evidently clear that the Bill is heavily in favour of IP right holders; indeed going to the extent of laying down certain presumptions in favour of the right holder in as far as tendering evidence is concerned. For example, where a person lays a complaint against some counterfeiting activity and the existence of an IP right becomes an issue, the Bill requires that the complainant be presumed to be the owner of that right until the contrary is proved.

Anti-Counterfeit Agency

The bill also provides for the establishment of an Anti-Counterfeit Agency to oversee implementation of the Bill once enacted into law. In order to attain the objectives of the Bill, the Agency is expected (among other functions) to (1) educate the public on matters relating to counterfeiting, (2) combat counterfeiting and trade in counterfeit goods in Kenya (3) co-ordinate with other regional and international organizations involved in combating counterfeiting. This last mandate is quite interesting taking into consideration the Anti-Counterfeiting Trade Agreement being secretly negotiated by some developed countries. What if the negotiating countries establish the proposed governing body in the league of WTO or WIPO? Would this provision in the Bill be deemed to have inadvertently anticipated or recognized such a body and in the process putting an obligation on the Kenyan Agency to co-ordinate with such an international governing body?

Clause 22 of the Bill proposes appointment of inspectors who will be mandated to enforce the provisions of the Bill. In performing their duties under the Bill, the inspectors notably have been given massive powers including full police powers.

The powers of the inspectors, captured in clause 23, for example include authority “at any reasonable time” to enter and inspect any place or vehicle “reasonably suspected” to have counterfeit goods. The inspectors also have the power to search, detain and arrest, without a warrant, any person suspected of having committed any of the offences prohibited under the Bill.

Whereas the Bill provides for the inspectors to be appointed in writing, the proposed pool of candidates for appointment as inspectors is worrying, and may give rise to conflict of interest and abuse of the system. The pool includes trade development officers, industrial development officers, trade mark and patent examiners who because of the nature of their work have the mandate of making certain decisions in their respect roles. There is danger that giving these officials additional roles more so the duty of enforcing IP rights may open a can of warms, in light of the sweeping powers enjoyed by an inspector under the provisions of the Bill.

Boarder measures
Another notable inclusion in the list of inspectors is customs officers, who under the directions of the commissioner customs or acting on his own initiative may seize and detain all suspected counterfeit goods, which are being imported into Kenya. In the same breath, the Bill however safeguards against wrongful detention of goods by providing that any person who suffers damage or loss as a result of false or negligent seizure is entitled to claim compensation.

Some of the proposed penalties for those convicted of counterfeiting offences include:
· For a first offence- 5 years imprisonment and/or a fine of not less than 3 times the value of the prevailing retail price of the goods.
· For a second and subsequent offence- 15 years imprisonment and /or a fine not less than 5 times the value of the prevailing retail price of the goods.

After combing through the Bill and not finding a definition for the phrase “prevailing retail price of the goods”, Afro Leo wonders whether that phrase means the retail price of the counterfeit goods.

Hopefully some of the anomalies will be rectified before the Bill is enacted into Law.

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Designer tells "greenfly" to throw himself off a cliff

The Sunday World (South Africa) reports that acclaimed fashion designer David Tlale has been accused by a budding Jozi designer of being a greenfly in her milk. The accusation comes from Pfadzani Mphanama, who says Tlale has "ruined her career" by using her fashion trade mark name Exodus at his fashion shows, despite a letter from her lawyers warning him to refrain from doing so last year. Tlale apologised at that point, she says, maintaing that he didn’t know she owned the brand -- but Tlale has since told Sunday World that he owns the brand.

Says Mphanama:
"I’ve registered it with Cipro and I have patent rights to it. But he continues to say that he owns the brand. ... They think I’m a chancer. But I’m not. Tlale is and he is ruining my business and reputation".
The report states that Tlale asked to meet with Mphanama on Friday to sort the matter out, but that "the livid Mphanama told him to go and throw himself over a cliff".
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Friday, 1 August 2008

Darren Olivier

Harms' paper on Transshipment

One of the speakers at the recent "Enforcement Workshop on Combatting Counterfeiting within the SADC" was the Hon Justice LTC Harms (Supreme Court of Appeal), RSA whose paper is entitled Issues of Transit and Transhipment: Legislation and Jurisprudence. Harms is one of the more respected voices on IP in the RSA region and so his conclusions are worthy of note, especially as he may be the adjudicator in your next big IP case in SA.

After analysis of his own judgement in AM Moolla Group Limited v Gap 543/2003 [2004] ZASCA 112, commentary on laws relating to GIs, Artice 51 of TRIPs, prohibitions of designated pesticides in to SA and various EU judgements he concludes that:

"First, there is no clear international standard.

Second, there is no clarity about the justification for customs action in relation to goods in transit or transshipment.

Third, all transshipment cases cannot be dealt with on the same basis.

Fourth, in SA at least, the laws are contradictory and do not take into account the ordinary principles of criminal procedure.

Fifth, customs are not really equipped to deal with the problems.

And last, the issue is more often than not one of fact and not one of law."

Thanks to Quentin Boschoff who attended the workshop, see earlier post here.
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