Friday, 28 November 2008
“They (India) attracted the pharmaceutical industry from South Africa, and international designer labels are manufacturing in India. India has clamped down on piracy. If we (South Africa) want to be winners we must do what winners do.” Leon Louw, executive director of the Free Market Foundation.
Algeria Pharmaceuticals and Healthcare Report:
"Algeria's [positive] score for risks to potential returns is negatively impacted by the government's strong pro-generics stance and shortcomings of the country's intellectual property rights (IPR) regime."
ANC v COPE: Congress of the People fight - focus shifts away from IP
"The ANC (originally) inferred that it owned the trademark rights to the name, but it appears it has abandoned this argument," Deon Bouwer (acting for COPE). For the earlier Afro-IP prediction post click here. IOL reports that "the interdict was [now] being sought on the basis that COPE should be prevented from using its name because it was "unlawful" and falsely represented the party as the "exclusive successor" to the 1955 Kliptown Congress of the People, at which the Freedom Charter was adopted." The case is set down for 8-12 December.
IP Finance recently quoted stats from the USPTO and OHIM offices that trade mark filings are set for another record year in Europe and the US but questions whether this can continue. A cursory view of filings in South Africa indicates that filings have not dropped in Africa's most advanced IP market either....(yet?). South Africa has the added advantage that its currency acts as a buffer. Bad news drops the rate making it cheaper to file...depending, of course, on whether your trade mark attorney passes that saving on.
Tuesday, 25 November 2008
On the role of the Board, the CEO is quoted as saying that the Board is active in the fight against piracy and it has adopted several approaches to deal with the vexing issue. The Board is involved in campaigns to create awareness among the right holders and the public. The second approach is enforcement of rights carried out by an enforcement unit which includes the police who carry out raids and confiscate infringing copies.
Ms Ouma cites a number of challenges faced by the Board such as lack of complainants and the fact that copyright infringement is not seen as a serious crime as evidenced by the non-deterrent penalties imposed on the offenders. The CEO sees collaboration with other government agencies and right holders as crucial in the fight against piracy.
The article gives a good account of the cases as well as the significance of the decisions for new investors in the Kenyan market. The writer observes that the increase in cases contesting brand names in the Kenyan market demonstrates the importance of protecting trade marks in order to “maintain an edge in an increasingly competitive business environment”.
On account of the decisions arrived at in the various cases looked at, the articles advices potential investors to protect their trademarks as neglecting to do so may in the end lead to far larger losses. According to the writer, a cost effect route for obtaining trade Mark protection is the Madrid system of International Trade Mark application of which Kenya is a member.
Cope Refuses ANC's Demand for a Name Change
"The Congress of the People was a "seminal, historical event" in 1955 organised by the ANC and its congress alliance partners, which led to the adoption of the Freedom Charter, said ANC spokesperson Carl Niehaus. A letter from the ANC stated: "We believe we enjoy common law [ed - rights] in and to the name Congress of the People. "The ANC is also concerned about the fact that "in many political circles, the ANC is commonly referred to as the Congress of the People". The Nguni translation of the ANC is "khongolese", which means congress. "The consequence of this is that there will be serious confusion," said Niehaus. The letter asked Cope for an undertaking in writing that it would not use the name or any similar names and that no promotional or advertising material bear the name. The ANC "requests delivery of all material in their possession for destruction". "If they do not abide by this we will be entitled to institute urgent high court proceedings," said Niehaus. Job said on both sides affidavits and answering affidavits had not been filed yet. He said the matter may eventually become moot."
"Job says the ANC has no problem with the use of the word congress, or the acronym, Cope, but that the phrase, Congress of the People, cannot be used according to this article."
According to The Star Motlanthe enters COPE fray
"When you look at the ANC's historical documents on their website there is no instance where they claim the name Congress of the People. "That is a historic event and is not the sole property of the ANC," said Bouwer. In a letter to the ANC on behalf of COPE, Bouwer questioned why the ANC wanted to go to court when the Independent Electoral Commission (IEC) was already engaged in examining COPE's application to register as a political party.
Chris Job, said COPE's refusal to accede to the ANC's demand made high court action "inevitable". "We will apply for an urgent interdict at the Pretoria High Court as early as next week," he said. We want to have a court hearing as soon as possible. We want the hearing to be heard before December 16. "We want to move urgently on this matter," Job said. The ANC would object to COPE's registration as a company and its applications to register its trademark and as a political party, he said.
Bouwer said this was premature, "because the IEC and the registrar of trademarks have not completed their processes". "The ANC should have waited to object to the IEC and the registrar of trademarks. Why did they have to go to court? "Although COPE has registered as a company with (the companies' register) Cipro, the ANC has a year in which they can still object to it. "The process to register a trademark takes up to two years and... the registrar of companies can still order COPE to use another name if a third party objects in the next 12 months," said Bouwer. He said the ANC should follow the rules and lodge its complaints with the IEC, and the registrars of companies and trademarks. "We are saying to the ANC: don't suppress us, but follow the rules. We have nothing against objections but this (squabble over the name) is not an urgent matter for the court. "I would be surprised if the court saw this matter as urgent, because the IEC and relevant bodies are dealing with the applications," Bouwer.
Deon Bouwer's letter can be located here
COPE Court Battle Looms Sibusiso Ngalwa and Gaye Davis
An SMS sent by former ANC Youth League leader and COPE organiser, Andile Nkuhlu, read: "Dear colleagues. This serves as information that the ANC has served papers on us to give an undertaking not to use Congress of the People in any form or they'll go to court on the 20th. Have told the lawyers to tell (them) to go to court since we will continue to use the name!"
"Jessie Duarte said the party took strong exception to the fact that the dissidents had decided to name themselves after the 1955 Congress of the People at Kliptown, Soweto - a campaign that was led by the ANC and which saw the adoption of the Freedom Charter. Duarte has accused Cope of trying to "steal" the legacy of the Freedom Charter, the document that forms the basis for the ANC's values and principles."
COPE has sent ANC into Panic Onkgopotse Tabane
"the ANC must explain why it is abusing the courts to oppose names that have not been registered; why it is blocking registration of domain names all over the place, including attempting to intimidate the Companies and Intellectual Property Registration Office officials to reveal names of people who are registering various aspects of the Cope identity. It would be interesting to understand why parallel rallies and events are being organised in an attempt to dislodge this "non-threat"."
Afro-IP's earlier post on the choice of SANC.
Monday, 24 November 2008
Right: Elvis -- a product of Nashville or a prototype for Africa?
But, having done so, they point out that there is an entire business dimension to the music industry, and that most African nations do not understand this:
After describing the success of Nashville, Tennessee, in dealing with similar phenomena in the previous century, the authors continue:
" ... But piracy explains only part of the problem. Recording companies underpay musicians and renege on agreements; radio stations fail to pay licence fees for tunes they air; most royalties agencies are state-owned or politically influenced: musicians get the worst deal in music.
It should be no surprise, then, that most commercial African music is recorded and produced in London or Paris".
"This success can be copied. After collapsing in the 1990s, Zambia’s music industry has turned itself around. First came the new copyright law. Then, in 1999, a new Zambian record label, Mondo Music Records, sparked the revival. Much like Ralph Peer in Nashville, Mondo’s founder Chisha Folotiya showed the way for other entrepreneurs and creators, unleashing what he calls “exponential growth in the amount of Zambian music being produced in the last seven years, and also in the consumption and the appreciation of it.” “We want Zambian music to contribute towards the economic development of our country,” he adds.It's not clear whether the authors are offering a gleam of hope, a prophecy of doom, or possibly both. But this article is right to emphasise that piracy is only a symptom of the problems facing creative musical talent in Africa -- albeit a serious one -- rather than the problem itself.
Encouragingly, Africa’s musicians are already one step ahead of Nashville’s folk-singers before their commercial success: African music is already hugely appreciated elsewhere. But without a legal environment that enforces copyrights and contracts, Africans’ creativity is not protected and cannot contribute to economic development.
For example, John Collins of the School of Performing Arts in Ghana estimates the Ghanaian music industry alone could generate US$53 million a year from foreign sales if local conditions supported creativity.
Nigeria's creative industries could generate about US$4 billion annually, information and communications minister John Odey said this month--but only if intellectual property rights are enforced, Copyright Commission chief Adebambo Adewopo added.
Only South Africa has a strong music business, with internationally-known musicians such as Hugh Masekela, the late Miriam Makeba, Ladysmith Black Mambazo, Ray Phiri, and the Soweto Gospel Choir--not least because they have sound intellectual property rights.
Any country can benefit from that potential by allowing it to flourish. Creators are also entrepreneurs, even if they are playing for tips in bars, and, like businesses everywhere else, these entrepreneurs need economic freedom.
Unless legal systems empower creative talents by protecting their intellectual property, Africa’s musicians will continue to head abroad, taking with them the sounds, the entertainment and their money too".
Thursday, 20 November 2008
Closer to Africa, The Statesman (Ghana's oldest mainstream newspaper) reports that Piracy is the most visible barrier to success of African musical talent. "In some West African countries, pirated music dominates as much as 90% of the market. No African country has restricted pirated music to less than a destructive 25% of the market."
Tuesday, 18 November 2008
Afro-IP welcomes IP's What's Up a blog focussing largely on IP in Nigeria and describing itself as "Intellectual Property News and Commentary. A place to engage in conversation and reflect on happenings in the world of IP. (Updated Wednesdays and Sundays.)" It is run by IPPERs Goldenrail and Dtrizzle.
Monday, 17 November 2008
"Speaking at a conference on intellectual property law in Vanderbijlpark, Gauteng, he warned that the local counterfeiting industry was growing "at an alarming rate". He highlighted the need to recognise that "laxity in the enforcement of intellectual property laws could have considerable reputational consequences, particularly as we prepare ourselves for the hosting of the 2010 Fifa World Cup". So far so good - these tournaments make money from sponsors and sponsors rely on the ability of the tournament to safeguard their brand and their significant sponsorship fee. An inability to do so will have a knock-on effect on investment not only during the tournament but generally. Mr Davies blames the laxity of enforcement of trade mark laws implying that the underlying legislaton is not to blame. Fortunately laxity is a problem that can be addressed in the short term. The dangerous bit starts here:
"The decision to grant recognition for particular trademarks and names in connection with the 2010 World Cup was a product of "considerable negotiation" between the SA government and Fifa (the International Federation of Association Football)...." Firstly, it is not clear what it means (brand owners do not normally negotiate for rights and should not have to) and secondly, the logical conclusion of the Minister's statement is that existing legislation does not recognise particular trademarks (sic). This is a far reaching statement when it comes to promoting the country for investment where the cause of which (inadequate trademark recognition laws) cannot be changed overnight. Let's hope he was just badly quoted because the trade mark laws in RSA comply with international standards and he could have been referring to FIFA's request under the Merchandise Marks Act reported here, in which case there should be some control over how the statement is communicated.
Thursday, 13 November 2008
"The project has been developing in Mozambique since July 2005 under a partnership between the Mozambique Health Ministry and Farmanguinhos, the unit of the Oswaldo Cruz Foundation (Portuguese abbreviation Fiocruz) that produces medicines.
Fiocruz is one of the biggest public health institutions in Latin America and is dedicated - in addition to the production of drugs - to vaccines and kits to diagnose diseases. It also is responsible for the training of human resources for the public health system.
... [T]he plant in Africa will be inaugurated in the first semester of 2009 and is expected to begin production in the same year. The plant will produce ARVs and drugs against malaria and other diseases. The factory location is being adapted for the necessary equipment. The project is not expected to result in medicines being shipped to Brazil, but rather is intended to represent a commitment to helping Africa.
The investment is aimed at advancing science and technology in Mozambique, lessening economic dependence and, specifically in this case, dependence on the development of ARVs. Currently, they are purchased from other countries at higher costs".
Some of the practitioners that delivered incisive papers at the occasion were; Dr. Adewopo, the Director General of the Nigerian Copyright Commission(NCC), Mr. Ernest Ndukwe, Vice-chairman, the Nigerian Communications Commission, Mr. Ben Murray Bruce of the media diverse Silverbird Group. Others were, Afolabi Adesanya, Director General, Nigerian Film Corporation, Ego Boyo, Tunde Kilani, and WIPO representative, Ms. Donna Ghelf.
Tuesday, 11 November 2008
Quoting from the article:
"• Internationally, there is the issue of the USTR Special 301 and IP in bilateral trade negotiations to deal with. During the election campaign, Obama made great play of the importance of safeguarding American jobs and industries. Will this be translated into even more emphasis on the enforcement of US IP rights overseas? If so, how will such a policy fit with another one of Obama’s themes, which is about restoring what he sees as the US’s broken relationship with much of the rest of the world?
• Moving on from that, how will the US position itself at WIPO and at the WTO with regard to IP? What stance will the new administration take with regard to specific issues such as patents and access to medicine and green technology?
• And talking of healthcare, it is clear that Obama does not like the present US system. With Democrat majorities in both the House and the Senate, he could well be in a position to do something about it. Will one of the things he will look at be the high price of medicines in the US and the role that patents play in ensuring that Americans pay more for their medicines than people in most other countries? If the answer to this question is yes, then the impact will be felt across the world.
• Finally, it will be interesting to see what kind of role the antitrust authorities, such as the Department of Justice, play in IP under an Obama presidency...."
Monday, 10 November 2008
"L’Organisation Africaine de la Propriété Intellectuelle (OAPI) organise du 4 au 6 novembre 2008 à l’hôtel Méridien Président de Dakar, en collaboration avec le Gouvernement de la République du Sénégal, une conférence internationale sous le thème « Conférence internationale sur la propriété intellectuelle et le développement économique et sociale des Etats membres de l’OAPI ».If you want any OAPI news in English, you'll be disappointed. The most recent OAPI news that actually appears in English on its English-language news pages is about two years old. For anything more recent, you can click the hyperlink and get the ungrammatical message: "unavailable on this language". Are any readers of this weblog ready and willing to help OAPI out and give the organisation a few minutes of their time to put things right?
Cette conférence placée sous la présidence effective Son Excellence Maître Abdoulaye Wade, Président de la République du Sénégal, a pour objet de poser la problématique du développement de l’Afrique et d’esquisser des solutions qui peuvent être apportées au moyen d’une gestion optimale de la propriété intellectuelle.
Prendront part à cette conférence, outre les ministres en charge de l’industrie et de la culture des seize états membres, les organisations patronales, les bailleurs de fonds internationaux, les partenaires aux développement, de même que des offices et institutions de propriété intellectuelle à travers le monde.
L'Organisation Africaine de la Propriété Intellectuelle (OAPI) remercie tous ses partenaires pour leur contribution à la tenue de cette la conférence. Elle exprime notamment sa gratitude à :
Ø L'Organisation Mondiale de la Propriété Intellectuelle (OMPI)
Ø L'Institut National de la Propriété Industrielle (INPI) France
Ø Organisation Internationale de la Francophonie (OIF)
Ø Office Européen des Brevets (OEB)".
Sunday, 9 November 2008
Thursday, 6 November 2008
Noseweek describes itself as "news you are not supposed to know" and one possible reason for its foray into the IP arena is that Hans Muhlberg, a well known commentator on IP issues in South Africa, is its assistant editor. One's first reaction may be that this type of press is not good news for the SA IP profession but is that correct? Should Noseweek's no-punches-pulled-name-and-shame approach not be applauded if there is a case to be answered...and how would you combat the bad press if it was YOU? ... And how big is Afro-Leo's nose? Hans has joined UK firm Beck Greener.
Wednesday, 5 November 2008
The matter was postponed for a week to allow the Independent Electoral Commission to be joined in the proceedings. But next day, at the conference, the new party’s name was announced as Sadec (South African Democratic Congress) and the prospects of a good trade-mark fight appeared remote.
However, hope arrived on Monday in the form of Sadeco (also South African National Congress), a splinter party of (Nadeco), the National Democratic Convention, both of whom have already registered their names with the IEC. This party has apparently refused to allow the breakaway party to adopt their name.
For the breakaways to be third time lucky in their choice of a new name, it might be a good idea to stay away from the terms ‘African’ National’ and ‘Democratic’!
Fortunately for the South African Nurses Council (SANC), the Southern African Development Community (SADC or Sadec) and the South African Disability Empowerment Company (Sadeco), the principle of specificity still reigns in trade-mark law.
iCafe requires Microsoft to join forces with governments, businesses and non-profit organizations in order to extend the reach of IT skills and other market forces so as to redress the world’s inequities. Within the past year, Microsoft has launched initiatives similar to iCafe across the Middle East and Africa region, China, India, Latin America, Southeast Asia, as well as Central and South America. The aim is that, by 2015, Microsoft will reach around one billion people who have limited access or are not yet realizing the benefits of technology.
"Most of the sentences that we get in the courts are suspended sentences so the deterrent effect isn't that great," said James Lennox, CEO of The Southern African Federation Against Copyright Theft (Safact).
Full report click here.
Tuesday, 4 November 2008
The Generalised System of Preferences (GSP-Plus) status provides non-reciprocal preferences to a large part of the exports of developing country compared with the non-reciprocal nature of the EPAs.
"Moreover, the GSP-Plus status does not require the developing country to sign on to commitments in other areas such as services, intellectual property, investment, competition policy and government procurement. The EU requires that their EPAs contain these issues," said a group of civil society organisations in a press statement.
There is a deadline of October 31 for countries to apply in this round for GSP-Plus status. If this deadline is missed, the next opportunity will come in April 2010.
"According to the EU, the main qualifying criteria are that any GSP-Plus beneficiary country must be considered "vulnerable" and must also have ratified and effectively implemented 27 specified international conventions in the fields of human rights, core labour standards, sustainable development and good governance."
For more on EPAs click here.
Monday, 3 November 2008
Rebrands are always a sensitive time for any company. Brands function on an emotional level and so it becomes vitally important that the image and feeling around the new brand is carefully communicated and managed to ensure that the rebrand is successful. From a purely legal point of view this new brand, which incorporates everyday words such as "and" and "beyond", will need a strong trade mark team and a dedicated budget to protect it.