Thursday, 30 October 2008

Asiimwe Paul

Ugandan parliament passes Trade secrets Bill

On the 28 October, 2008, the Parliament of Uganda passed the Trade Secrets Bill into law.

The passage of this bill comes against the backdrop of reluctance on the part of investors to increase investments, particularly those that may require protection of sensitive business and technical information without a law that protects them.

The trade secrets Bill is one of a series of Intellectual property laws expected to be passed before the end of the first quarter of 2009. Others include the industrial property bill and the geographical indications bill.

More details on the key features of the law will be posted in due course as soon as it becomes available.
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Wednesday, 29 October 2008

Darren Olivier

Lacoste's croc

Gerard Du Toit (Spoor & Fisher) kindly sent through one of the 12000 infringing crocs due to be culled following the Lacoste decision reported here:

You must be crazy to wear one of those critters buckle high.
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Darren Olivier

Domain name parking...the MXIT decision

In Mxit Lifestyle (Pty) Ltd v Andre Steyn (ZA2008-0020) the alternative dispute resolution body for South African domain names has found (its first decision on the issue) that domain name parking can be an abusive registration. The adjudicator also confirmed that the relevant date for showing rights to a name or mark is the date of the complaint and not the registration date of the disputed domain name. However, whilst the decision is welcome news for brandowners it may be interpreted as a step too far. Our prognosis - with the help of Stephanie Jearey (Bowman Gilfillan):

The Complainant, Mxit Lifestyle (Pty) Ltd (“Mxit”), lodged a dispute against an individual registrant’s (Mr Andre Steyn) domain name Mxit is a company which operates a social networking and communication service based on text messages aimed at the youth market claiming 8.7 million users. Mxit is the proprietor of several pending trade mark applications in South Africa and the domain names and which were registered on 9 May and 26 February 2004 respectively. However, the Complainant only began to use its MXIT trademark in May 2005.

The Adjudicator, held that, in regard to establishing rights, the Complainant could not claim trade mark rights (in the sense of an actionable right against third parties) in their pending trade mark applications, company name or domain name per se. However, the uncontested evidence of use of the trade mark between May 2005 and March 2008 was sufficient to establish common law rights in the trade mark MXIT (which was held to be neither a descriptive nor a generic term) and that the relevant date for showing such rights is the date of the complaint and not the registration date of the disputed domain name. The Adjudicator further confirmed that the contested domain name was similar to the Complainant’s trade mark MXIT.

On the question of whether the contested domain name was an abusive registration, the Adjudicator found that disputed domain name is used or has been registered in a way that leads people or business to believe that the domain name was registered to, operated or authorized by or otherwise connect with the Complainant. The adjudicator held that “people will, particularly in view of the similarity between the Disputed Domain Name and the Complainant’s trade mark MXIT and the fact that the Complainant’s trade mark is pronounced and often referred to in writing as “Mixit”, likely believe that the Disputed Domain Name is connected with the Complainant”.

The case is good news for brand owners but does it go too far? Although the factors for what may constitute an abusive domain name in domain name parking situations are usefully set out in the decision, one interpretation of the ruling is that it was primarily the similarity of the trade mark and domain that was sufficient to hold the domain name an abusive registration. It is not clear if and to what extent those factors (eg whether the domain name is an obvious trade mark or whether the landing pages were for competing products etc) were considered in making the finding that “… the Registrant generates revenue from the sponsored links and advertisements that appear on the landing pages and as a consequence of the confusion with Complainant’s trade mark.” This is particularly so because initial conduct of the Registrant in using the keywords “chat”, “messaging” and “Mixit” had ceased and their relevance apparently discarded by the adjudicator, leaving us with a situation where a parked domain name using ordinary terms for search engine optimization eg fashion, clothing, music that are unrelated to the Complainant’s rights give way to finding that the domain name is abusive.
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Sub-Saharan Africa: which operating software will dominate?

"Microsoft battles low-cost rival for Africa", by Steve Stecklow (Wall Street Journal) is a fascinating account that discusses the attempts by Microsoft to make its Windows software a fixture in sub-Saharan Africa, as well as the company's tactics to ward off competition from software based on the Linux open source model. He writes, among other things:
"Critics say Microsoft's efforts to outflank Linux are steering cash-strapped governments away from the cheapest, most sensible solution. They say Microsoft has been locking African government agencies into costly, multiyear agreements to license its software. "African governments cannot afford long-term licensing contracts," says Nnenna Nwakanma of the Free Software and Open Source Foundation for Africa, a Ghanaian-based nonprofit. The money, she says, would be better spent on training people to use computers and fostering homegrown software development.

Microsoft says its pricing in Africa is fair, and that the company is investing heavily in community projects across the continent. "We believe we can help improve the lives of millions of people and potentially grow our own business in the long term," says Thomas N. Hansen, Microsoft's general manager for the region".
What is interesting is the way in which the battle between proprietary software and open source products is being fought out in economies in which financial resources are scarce, competition law of little apparent relevance and market forces at local level vulnerable to government pressures.
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Tuesday, 28 October 2008

Darren Olivier

Noseweek's Thick as IP lawyers

Noseweek's taster for its latest edition reads:

"UPDATES: Thick as intellectual property lawyers

The South African Institute of Intellectual Property Lawyers (SAIIPL) declares on its website that among its objectives is “to act as a disciplinary body that protects the interests of the South African public by ensuring that standards and practices in the field of Intellectual Property Law are maintained”.".....

I am dead keen to know why we are "thick" but cannot find myself parting with R278 (the Noseweek susbcription) to find out.

Can anyone enlighten all of us? Mr Welz - it would be for a good cause...
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Ethiopia streamlines trade mark formalities

The INTA Bulletin, vol.63, No. 19 (15 October 2008) records that, with effect from 13 August 2008, the Ethiopian Trade Mark Office removed the legalization requirement for all documents filed at the Office except one -- the power of attorney. The only authentication requirement for these documents will be a valid attestation by a notary public. Filing requirements and the revised authentication procedures are listed in the Bulletin.
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Darren Olivier

Botswana and South Africa to benefit from Pharma grant

A McGill University parasitology researcher (Dr. Timothy Geary) has received a $100,000 grant from the Gates Foundation to help establish locally controlled pharmaceutical research programs in Botswana and South Africa.

"Over the last 15 or 20 years there has been tension between the industrialized north and the developing south over this issue," he continued. "There was a sense in the south that people from the north were simply looting this resource. We called it bioprospecting; they called it 'biopiracy,' which caused obvious problems in negotiating access and contracts." Moreover, said Geary, philanthropic attempts to establish a pharmaceutical research base in Africa often fail because they lack the crucial element of sustainability: Donations of expensive high-tech equipment typically do not take long-term maintenance into account, for example.

According to Geary, "Africans will do the research and own the intellectual property. This creates sustainability: if you can license the products of your screening, you have a revenue stream."... "The other goal, that's very important, is that Africans should be leading this program in the very short term, two to three years. I hope to make myself irrelevant." (Source Eurekalert)

The cause seesm both sensible and noble but wonders how far $100,000 will go. Hopefully the revenue streams start to materialise fairly quickly and the programs are able to benefit from other funding or government initiatives.
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Monday, 27 October 2008

Darren Olivier

Uganda has reason for Smile

Reuters is reporting that South African-based low-cost telecoms firm Smile Communications has been awarded a telecoms licence by the Ugandan government. Smile Communications, led by former MTN Group director Irene Charnley, plans to provide affordable communications to the poor and is seeking other expansion opportunities across Africa and the Middle East. Smile plans to offer free telephone numbers and voice message boxes to customers, whether they own a handset or not. A customer will be provided with a secure PIN code to use on any Smile phone. Smile Communications will operate through agents, which provide mobile handsets in street kiosks, stalls and payphones. See also AllAfrica report here.
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Darren Olivier

Nigeria textile industry under threat from China fakes

MANUFACTURERS Association of Nigeria (MAN) and Nigerian Textile Manufacturers Association (NTMA), has raised alarm over the systematic and deliberate destruction of the Nigerian textile industry and economy by unscrupulous Chinese their textile exporters and called on the Federal government to engage the Chinese government over the matter. MAN and NTMA lamented that the most serious problem afflicting the textile industry in Nigeria is the unabated influx of counterfeit textiles from China according to this article in Vanguard (Victor Ahiuma-Young).

Presenting the joint position of MAN and NTMA, Executive Secretary of NTMA, Mr. Paul Olarewaju alleged the counterfeited textile fabrics originate in China and specifically target and copy the trade marks of Nigerian textile manufacturers, ‘Made-in-Nigeria’ or ‘Made-as-Nigeria’ on the selvedge and even blatantly take SON/NIS markings to deliberately mislead consumers. According to Mr. Olarewaju, the markets in Kano, Ibadan, Onitsha and Lagos are flooded with smuggled textiles through nation’s land borders, particularly, Niger Republic which now occupy over 80% market share.

For more on the devastating effect of piracy in Nigeria click here.
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Thursday, 23 October 2008


Second level domains in Cameroon: the race is on!

If you were thinking of registering a second level .cm domain name, is the official registry operator for the Republic of Cameroon and it is to that body that you must address your application. So far as, and names are concerned, sunrise domain name applications from trade mark holders have been accepted since 15 October 2008. The general registration period is expected to commence on 15 November 2008, which will allow the general public to register CM domain names. NETCOM also provides registrar facilities in Niger, Gabon, Chad, and Burkina Faso.
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Darren Olivier

What happens to an abandoned bok...part 2

Further to an Afro-IP post last week, journalists Aziz Hartley and Ashfak Mohamed have done some investigative work in connection with a claim by Sports Minister Makhenkesi Stofile that the department of sport and recreation owns the Springbok emblem. They report that searches of the trade mark register by Owen Dean's firm Spoor & Fisher and Trade Mark Attorney Dan Badenhorst confirm that SARU (South African Rugby Union) is the proprietor of the trade marks. Apparently, on Tuesday, Stofile told parliament's sports portfolio committee that many South Africans, including the rugby union, did not know who owned the trademark.

Determining ownership of a trade mark is not as easy as it may appear. The trade mark register serves as first glance proof of a valid right to a trade mark. However, a trade mark serves as a badge of origin and a guarantee of source and if it should fail to continue in that function it runs the risk being cancelled. If Stofile is correct that many South Africans did not know who owns the trade mark then that is a sign that the trade mark may not be indicating origin. If upon further investigation (eg by interviewing the relevant public) it appears that they are confused as to who owns the trade mark by suggesting that several different bodies, organisations or firms do, or that nobody does or as as national symbol that the public does (another debate altogether) then that trade mark may well be vulnerable to a cancellation claim. The investigationso may also indicate that the goodwill associated with the trade mark is in fact owned by a different "person" than the legal proprietor of the trade mark which means that the rights conflict with one another and ultimately could also lead to a loss of rights in the registered trade mark.

I had a number of comments on my earlier post and look forward to further comments on this one. It would be great if those comments would be made live on this site as this is a discussion that appears to have have no clear answer.
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Monday, 20 October 2008


ECOWAS Ministers adopt Cyber Crime text

The Standard Times Press News reports that Regional Ministers responsible for Telecommunications and ICT ('information and communication technology') met on 16 October 2008 in Praia, the capital of Cape Verde, and adopted two important legal texts on cyber crime and personal data protection in ECOWAS Member States (ECOWAS is the Economic Community of West African States).The Supplementary Act on Cyber Crime within ECOWAS seeks to bridge the legal gap relating to cyber crime repression through the adoption of new offences specific to the use of ICT as well as adapt traditional offences to ICT offences, sanctions and the punishment regime in force in Member States to the new technological environment.

ECOWAS press release here.
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Call for tech transfer for a nuclear Ghana

Professor Edward Akaho, Director General of the Ghana Atomic Energy Commission (GAEC), has urged that the country make plans to enable it to explore nuclear energy for electricity generation by 2018 if it is to avert future supply disruptions. This message was delivered in his inaugural lecture as a Fellow of the Ghana Academy of Arts and Sciences, "Nuclear Power for Generating Electricity in Ghana: Issues and Challenges”.

Prof. Akaho called for the ratification of all relevant international conventions in order to help build the necessary public and international confidence in the country that it would use nuclear for peaceful purposes. Emphasis was placed on the need to train skilled human resources -- concerted efforts had to be made to promote effective technology transfer and partnership through bilateral and multilateral agreements.
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Saturday, 18 October 2008


"Softlifting" adds to SA piracy woes

According to the latest bad-news assessment of damage inflicted by copyright infringers in the software sector, South African software pirates are currently depriving industry of R1.9bn each year. The data comes from global technology research company IDC, which also reports that, though things may be bad in SA, they're worse elsewhere:
"... South Africa last year had a software piracy rate of only 34% compared to the African average of over 80% (Zimbabwe being 91%)".
A reduction in piracy of 10 percentage points over four years could generate R6 billion in additional revenue in the South African information technology (IT) industry and as many as 1210 extra IT sector jobs.

Various types of infringement are identified, including “softlifting”, the purchase of a single licensed copy of software which is loaded on to several machines.
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Friday, 17 October 2008

Darren Olivier

Cameroon: Penja Peppercorn, Oku Honey Valorised

According to a report in the Cameroon Tribune The two products were declared fully protected last 06 October in Yaounde. The people of Oku in the North West province and those of Penga in the Littoral now have products which they can claim fully belong to them. Full property rights were accorded the two products, Oku Honey and Penga pepper corn respectively last October, 06 in Yaounde following the signing of an agreement between the French Secretary of State for External Trade, Anne Marie Idrac and the Director General of the African Intellectual Property Organisation, Paulin Edou Edou. (Source AllAfrica)
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Thursday, 16 October 2008

Darren Olivier

What happens to an abandoned bok?

There is currently a heated debate going on in South Africa about the abandonment of the Springbok, South Africa's traditional rugby emblem. For the uninitiated the Springbok is to South African rugby what the Lion is to the British Isles, the Bull to the Chicago Bulls and the Vulture is to the Flamengo Football Club. However, the Springbok is also seen by many as a symbol of the old South Africa and its continued existence, an impediment to full transformation to a non-racial society. This post is not about that debate but, ponders the following:

What would happen to the Springbok if it was summarily kicked out the game park? What would happen to the intellectual property attached to the bok and is there a prospect that someone could exploit it?

Leaving aside what might happen to Afro-Leo (who has been hunting springbok for years and may now need the services of a nutritionist) there are undoubtedly registered trade marks throughout the world, valuable goodwill attached to the name and bok symbol and copyright in the symbol too. Does a public abandonment of the emblem leaves those trade marks vulnerable to cancellation eg for lack of intention to use? In some jurisdictions that may be the case. However, does this mean that someone like Mike Ashley, disillusioned by his brief foray into the Premier League, could start a rugby side called the SPRINGBOKS and exploit the emblem for commercial gain? We have seen that protectable goodwill can endure for many years but goodwill is not protected in all jurisdictions in the same way and perhaps more importantly, who would foot the bill to enforce the rights - surely not body that has abandoned it, especially in such circumstances? Copyright in the bok symbol would remain an actionable right too in most jurisdictions but then again would it be enforced? Would the risky prospect of damages be a sufficient incentive? Unlikely one would think.

It seems that the abandonment of the symbol and name does create an opportunity for someone who thinks they could gain an advantage out of it. It not as easy as it may sound - the symbol would have been endorsed as a throw-away asset for a reason and that reason would taint its potential commercial value, among other things. That said, if the debate is heated enough we could find ourselves with a rebel SPRINGBOK sponsored by some body who feels that they could exploit it or with enough money not to bother.
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Monday, 13 October 2008


Justin and Just Giving

Prominent IP lawyer Justin Watts (Freshfields) has entered the British Indoor Rowing Championship on 26 October in order to raise money for educational causes that a number of schools in Nachingwea, Tanzania. If you'd like to support Justin's venture, you can sponsor him by clicking here: Who knows, your donation may be contributing to one of the next generation of inventors, creators, lawyers and administrators who drive the IP community.
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Darren Olivier

Nigerian Trade Marks Journal & BOPI update

"The Nigerian Trademarks Registry in a move to clear all back log of pending applications have published two trade mark journals within a couple of months of each other, namely 6th June, 2008 and 30th July, 2008. In times past the registry was only able to publish one every three years or at best, once a year. This change has primarily been achieved by the decision of the Registry to publish certain trade marks without the full information that in previous editions was required. This is to accommodate more publications in the journals. All the information left out in the publication will be included when the certificates are issued. Intellectual Property practitioners and brand owners have seen a great improvement in the activities of our registry and it is believed that this will continue." (Source: - kindly brought to Afro-IP's attention by Natalia Pereira).

Afro-Ip wonders what use the publication will be if information, like the specification of goods and services covered by the trade mark, is missing.

Thank you for the emails requesting the OAPI journal. Afro-IP has made enquiries on your behalf and will let you know the outcome shortly.
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Darren Olivier

Pressure to sign up to EPAs mounts

An article entitled Defiant Guyana to be Punished published by Inter Press Service indicates that pressure is mounting on African States to sign up to EPAs (European Partnership Agreements) as Guyana faces up to the ramifications of not signing the trade agreement.

Quoting from the article:

"Last month, [Peter] Mandelson said there was "no question of confining any country (that declines to sign an EPA) to outer darkness."

"A document expected to be rubber-stamped by the EU's foreign ministers Oct. 13 suggests that Guyana will therefore no longer benefit from the favourable treatment scheme for its Europe-bound exports that has been in place since 1975. As a result, it would be subject to higher tariffs on its exports of rice, rum and seafood. "

"Some African governments are worried that the action taken against Guyana could lead to similar action being taken against them if they do not sign EPAs. An African diplomat, speaking on condition of anonymity, described the EU move as "completely unacceptable", suggesting that it ran counter to assurances given by the Union earlier this year that it would display flexibility towards ACP countries which express particular concerns about the content of the proposed accords."

"Dalindyebo Shabalala from the Centre for International Environmental Law in Geneva branded the intellectual property provisions in the EPA as "extremely troubling." In a recent paper, he stated that these clauses are not designed to help the Caribbean develop in a way that benefits its societies and avoids ecological harm but to advance the EU's own "mercantilist interests". It is "astonishing", he said, that the EU is using this agreement to try to enforce rules originally intended for wealthy countries in poorer ones"

For more from Afro-IP on the EPA debate click here.
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Friday, 10 October 2008

Darren Olivier

Needletime rights introduced to South Africa

Needletime refers to a performer’s right to receive a royalty for the broadcast, to the public, of a sound recording embodying a performer’s performance. With the introduction of the Performer’s Protection Act, the amendment of the Copyright Act and the promulgation of the Regulations on the Establishment of Collecting Societies in the Music Industry, performers are now entitled to a royalty for their performance embodied in a sound recording. These royalties may be collected by the performer and/or copyright owner or, alternatively, on behalf of the copyright owner and performer(s) by a “collection society” who administers their rights. The latest development in this law is the recent accreditation of SAMRO (South African Music Rights Organisation) as a collection society for needletime rights royalties. Collecting societies collect royalties from broadcasters and distribute the monies to the performers and copyright owners as per an agreement between the parties. Previously, the SA Copyright Act protected only copyright owners (usually the recording company) and royalties claimed were paid to the copyright owner of the sound recording and not the performer.

Does anyone know what the applicable royalty rates are for needletime rights? Is it possible to benchmark?

For a short history of needletime rights click here.

Some tatoo artists have been arguing that their customers also deserve needle time compensation...
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Thursday, 9 October 2008

Darren Olivier

Lacoste sues and...wins

In Lacoste v Long Chang Trading CC, the High Court of South Africa has injuncted Long Chang from infringing Lacoste's registered trade marks. In this case, the Plaintiff (Lacoste) instituted an action against the Defendant (Long Chang) for an order in the terms including an interdict/injunction against the Defendant for infringing the registered rights of the Plaintiff in the Lacoste trade marks. The Court found for Lacoste and a helpful summary (provided by very kindly by Msawenkosi Gaxo - Bowman Gilfillan) and a short comment from me at the end is provided below. For more from Afro-IP on Croc Fights click here.

The Court had to determine whether marks used by the Defendant on its belts constituted an infringement of the marks belonging to the Plaintiff.

The Plaintiff is a registered proprietor of marks including two crocodile devices in class 25. It is also a registered proprietor of the LACOSTE trade mark in class 25. The Defendant is the importer of a consignment of twelve thousand belts which were first detained and later seized by the South African Revenue Service ("SARS") in terms of the Customs and Excise Act, 90/1964 read together with the CGA as being suspected counterfeit goods.

The basis of the detention and seizure was that the belts bore a mark similar to that of the Plaintiff's registered crocodile device.

The Defendant conteded that its mark does not resemble the Lacoste trade marks and therefore deception or confusion was not likely.

The Plaintiff's claim is pusuant to section 34(1)(a) of the TMA which reads: the rights acquired by registration of a trade mark shall be infringed by the unauthorised use in the course of trade in relation to goods or services in respect of which the trade mark is registered of an identical mark or of a mark so nearly resembling it as to be likely to deceive or cause confusion.

The Defendant's belts are clothing classified into class 25. The Plaintiff has registered its mark in that class. The Defendant's use of its mark is in relation to goods in respect of which the trade mark is registered.

The enquiry as to whether the Plaintiff's exclusive rights have been infringed is confined to the comparison between the two marks. The question is whether the representation of the two marks visually resembles each other to such an extent that it is likely that the average consumer might be deceived or confused.

The Plaintiff's mark is a crocodile device. The Defendant's mark is a lizard device. Both creatures face towards the right if viewed from the front. Both marks depict two visible feet of the creature. Both marks have stripes running lengthwise along the creature, which extend to the tail. Both creatures have a tail on the left hand side, if viewed from the front, and both tails are raised and turned above the body of the creature to point in the same direction that the head is facing, towards right.

The difference between the two marks is that the Lacoste crocodile device has an open mouth while the Defendant's device does not. The Defendant's mark has the word Anole in the centre of the device while the Plaintiff's mark does not.

The question is whether the depictions of the respective marks are such that they are so different and are clearly visible to the average consumer.

The Court referred to Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), where it was held that in an infringement action the onus is on the Plaintiff to show the probability or likelihood of deception or confusion. It is not incumbent upon the Plaintiff to show that every ... customer ... would probably be deceived or confused. It is enough for the plaitiff to show that a substantial number of persons will probably be confused as to the origin of the goods or the existence or non-existence of such a connection.

The Court also referred to Distilleerderij Voorheen Simon Rijnbende en Zonen v Rolfes Nebel & Co 1913 WLD 3, where it was said that to constitute an infringement of a trade mark there must either be an adoption of a trade mark or of its essential particulars, or one of them, or else a colourable imitation of the mark or some one or more of its essential particluars.

The Court found that the Defendant's mark has more than one of the essential particulars of the Plaintiff's mark, and the marks to be very similar if not identical. It found the impression of the two marks, even to an average consumer acquainted with the Plaintiff's mark, is likely to cause confusion, as there are no dominant or striking features that immediately serve to distinguish one from the other.

The Defendant was interdicted from infringing the registered rights of the Plaintiff in the LACOSTE crocodile device trade marks.

The Defendant was ordered to pay the costs of this matter, including the costs of two Counsel.

The court only dealt with the issue of infringement and unfortunately, apart from the description of the marks, Afro-IP does not have a visual format to consider. It is interesting though that the RSA courts (and apparently Counsel) chose to use 1913 and 1984 judgements as a basis for the test applied to contemporary infringement. With wording in the SA Trade Marks Act (1993) that is very similar/nearly identical to the European Harmonization Directive and the vast number of European judgements (and other South African judgements) on that wording, it is curious the Court (and apparently Counsel) did not seek to take advantage of that jurisprudence. I came to a similar conclusion when reading the draft Namibian legislation which differs from the South African legislation in places where, at first glance, it seemed more effecient to use tried and tested contemporary language from either the South African or European context.
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Wednesday, 8 October 2008

Darren Olivier

OAPI – PUBLICATION OF “BOPI” (Official Intellectual Property Bulletin)

Forchak Valentine of Forchak IP & Legal Advisory has alerted Afro-IP to the fact that “OAPI” has recently published the first edition of the quarterly Official Bulletin of Intellectual Property “BOPI” No. 1/2008 dated 20th of September 2008. It covers a wide range of subject matter – patents, trademarks, industrial designs, utility models, commercial names etc. The Bangui Agreement governing the OAPI Trademarks Law provides that once published, any interested party can opposed the registration of a trademark within a maximum period of six (06) months by filing a Notice of Opposition and stating therein the grounds of opposition. After the expiration of the statutory period of 06 months, the registration certificate becomes final and unchallengeable. Therefore the deadline to comply with the procedure to oppose a trademark is fixed on the 20th March 2009. If anyone would like to receive copies of this IP Journal please send and email here.

Six months may sound like a long enough time but it is in reality very short and the penalty appears to that the registration becomes final and unchallengeable. As there is a provision for cancellation to the Oapi Courts this must refer to a period before registration of the trade mark?
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Tuesday, 7 October 2008

Asiimwe Paul

Zain applies for 3rd National telecom operator licence in Rwanda

Zain (formerly Celtel) has filed its application to become Rwanda's third licensee, the other existing players being Rwandatel and MTN Rwanda.

Rwanda is looking at enhancing the competitiveness of its telecoms sector as the initial 5 year duopoly period comes to an end for Rwandatel and MTN Rwanda. This also comes against the backdrop of poor service and regular dropped calls on the MTN Rwanda network which led the Rwanda telecoms regulator to fine MTN an unprecedented 70 million Rwandese Francs.

Zain is competing for the third national license against Orascom Telecom's subsidiary, Telecel Globe Ltd of Egypt, Millicom from Luxemburg and Larrycom from Sudan.One of Zain's strongest selling points as a telecom brand is its world class 'one network' which enables subscribers on the Zain network in Africa and Asia to make cross border calls at local rates. This is one innovation European telcos would not welcome because of revenue generated from their expensive roaming charges.

Apart from its one network, Zain hopes to introduce world class communications services on the wimax platform as well as 3G and 3.5G telephony.
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Asiimwe Paul

South African Company unveils electric car

The BBC has reported that a South African company has unveiled the continent's first electric car, expected to go to the market in 2010. The car's manufacturers believe it will reduce green house gas emissions and noise pollution. Subject to pricing however, it could turn out to be a hit across most of Africa due to its claimed fuel efficiency.

Some of the car's benefits are its long mileage after its lithium cells are fully charged, an expected 400 Km(249miles!). The other benefit is that unlike some other electric cars which have to be charged off a 3 phase power line, the Joule can be charged at home on a single phase line. Thirdly, the Joule comes with solar panels mounted on the roof to enable motorists benefit from solar energy, which can push the vehicle another "15-20km".

What is likely to be a short to medium term challenge is the chronic scarcity of reliable electricity in most African cities, especially East and West Africa.

Whatever the future holds for the 'Joule', Afro-IP welcomes yet another African innovation. Hopefully, it will be a strong brand among the new wave of green cars in the years to come.
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Monday, 6 October 2008


FIFA trademark survey - overview

Following the OHIM Board of Appeal decision on the German FIFA trade marks, we asked readers of Afro-IP for their opinion on the validity of the South African equivalents. A total of 32 answers resulted in a resounding vote (nearly 80%) for possible cancellation of the equivalent South African FIFA marks on the grounds of non-distinctiveness. The results were:

24 Yes for cancellation
6 No
2 Maybe
The Afro-IP members now regret not asking for reasons - it is relatively easy to work out why most readers followed the OHIM decision, but on what grounds did the 6 'No' votes base their vote? As for the 'Maybe' votes- have you come to a definite decision yet?
Next time we will include 'room for a view' when we hold a poll, and if anyone wants to tell us why they reached their decision this time round, write to one of us and, if the opinion is suitable for inclusion in a family publication, we will post it here (with or without acknowledgement of source, as you prefer).
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WIPO and ARIPO to expand cooperation

WIPO Press Release 2008PR/2008/569, released on Friday, reports that the Director General of the African Regional Intellectual Property Organization (ARIPO), Gift H. Sibanda, signed a memorandum of understanding (MOU) on Thursday with the World Intellectual Property Organization in Geneva, which is intended to strengthen and expand cooperation between the two organizations. The MOU covers traditional areas of cooperation relating to capacity-building, as well as a special project to boost ARIPO’s patent information capacity.

The agreement is also intended boost the capacity of ARIPO member states to provide the means for research institutes, universities and the private sector to capitalize on the wealth of technical information available in patent documents. According to the Press Release:

"WIPO will also assist, where appropriate, in undertaking studies on the contribution of copyright-based industries to national economies, and the role of distinctive signs, particularly geographical indications, in the promotion of domestic and export trade. Cooperation will extend to building the capacity of copyright collective management organizations and enhancing rights management at the national and regional levels. In addition to the provision of technical and legislative assistance, cooperation will also be strengthened in establishing a legal framework for the protection on traditional knowledge and traditional expressions of folklore.

In a separate agreement relating to patent information and the dissemination of patent documents, WIPO will provide ARIPO with the necessary technical assistance to digitize and format its patent data. This will enable ARIPO to provide value-added patent information services to its member countries. WIPO and ARIPO will cooperate in the development of patent information tools to demonstrate the value of patent information and to increase awareness about the utilization of patent information. The two organizations will jointly organize symposia, seminars, workshops and other training programs in the area of patent information to address particular needs and requirements of users from ARIPO member countries. WIPO will integrate the patent information provided by ARIPO and its member states into WIPO’s patentscope ® Search Service to encourage the broader dissemination and use of this data".

For further information please contact the Media Relations and Public Affairs Section by phone +41 22 338 81 61 or 338 95 47 or fax +41 22 338 82 80. No email contact details are given.
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Friday, 3 October 2008

Darren Olivier

Have the SA legislators put the cart before the horse?

Legalbrief has alerted Afro IP to the second part of a comprehensive article on traditional knowledge penned by Tracy Rengecas (Spoor & Fisher) who warns (correctly in this blogger's opinion) that piecemeal amendments to existing intellectual property legislation to protect traditional knowledge will, in fact, make it very hard and expensive for traditional communities to try to protect their traditional knowledge. She argues that legislation specific to traditional and indigenous knowledge is required to clarify collective ownership issues; to determine what constitutes an indigenous community and who is entitled to act on behalf of that community; and to set out objective criteria for the determination of works which have an indigenous nature and traditional character. Only once this general law is in place, will it be possible to determine whether it is necessary and to what degree our orthodox intellectual property legislation should be amended. For additional reading on traditional knowledge as reported by Afro IP click here. For the full De Rebus article click here.
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Darren Olivier


The USPTO will grant a patent if the the invention is novel, non-obvious, and "useful". Afro IP has come across a US patent description entitled "Method of stopping a stolen car without a high-speed chase, utilizing a bar code" under US patent registration number 7108178. It is described as "a safe method of stopping a stolen car without chasing at high speeds, utilizing a bar code implanted between the inner layer and outer layer of a rear safety glass is comprised of steps: 1) scan the barcode, 2) compare the read in barcode with those of the stolen cars stored in the police computer net, 3) trigger one of the three stopping means of this invention. Those three stopping means are: 1) turn off the engine, 2) puncture the rear tires with bullets, and 3) puncture the rear tires by mechanical means."Text not available
Method of stopping a stolen car without a high-speed chase, utilizing a bar code Young Ill Choi
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Thursday, 2 October 2008

Darren Olivier

SA Investment Link Launch

According to a press release, SA Investment Link was launched on Monday, September 29, 2008 seeking to create facilitate trade and investment to and from Southern Africa. They offer a unique online marketplace to assist investors and those seeking investment. Afro IP wishes this new business well.

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Darren Olivier

Giant property entrepreneurs sign South African deal

That is the title of a report in PropertyWire describing how Donald Trump Jnr and Devland have partnered to invest in the current soft South African property market. "They are looking at developing residential and hotel projects worth millions of dollars in the next three years. It is expected to cover some 300,000 square metres but further details have not yet been released." Neill Bernstein (Devland) is quoted as saying that "the deal would bring a much needed flow of intellectual capital into the country's property market." According to this article the deal is worth R5 billion (over 500 hundred million dollars), a figure 100 times larger than the brand licensing fee Trump was paid for the use of his name on the Daewoo Trump World based in Korea, according to Wikipedia.
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Wednesday, 1 October 2008

Darren Olivier

South Africa: latest piracy raids

Kea Modimoeng writing in the Sowetan quotes Bowman Gifillan's Charl Potgieter and Quentin Boschoff and Microsoft's Charl Everton on the continuing rise in counterfeiting in South Africa. Counterfeit goods are no longer just the trade of street vendors, but can now be found in major shopping centres across the country. In the past few days, Quentin and Charl have completed successful raids for POLO and ZAMBUK products and their firm is involved in police raids at a rate of ten per month for 2008. The minimum penalty for counterfeiters is R5000 per item and or maximum of three years imprisonment. But, this does not seem to have deterred counterfeiters and according to computer systems giant Microsoft in South Africa, one in every three copies of its software is used illegally.

As this blog has repeatedly reported, piracy is a huge concern on the continent and, as the article comments, the law is not functioning as a deterrent. However, whilst there may be justified calls for tougher penalties and better IP laws this does not appear to be the answer, certainly not the only answer. In fact, RSA has legislation that makes it fairly easy to obtain warrants (often without notice) and, as the raid rate suggests, the police are generally co-operative. The problem is multifaceted. Africa is considered a dumping ground for fake goods and run offs and there is demand because consumers are either not concerned about the fact that they are buying fake products or worse (particularly in case of pharmaceuticals) they are genuinely deceived. Brand owners can play their part too - Microsoft's latest drive to slash prices of genuine goods in Kenya is such an example.
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