Yesterday Afro Leo (in his alter ego) was fortunate enough to speak and contribute at Bowman Gilfillan's IP Crammer seminar which had around 70 people in attendance. There is much to be said about a good venue, excellent content, a thoughtful contributing audience and a chairman who knows how to make it flow and hold it together. Afro Leo was thoroughly impressed and also fortunate enough to meet some this blog's loyal followers for the first time. There was also an opportunity to meet the head of the infamous "Rolex gang" who pitched up without a name badge and just a few hours late.
The IP Crammer seminar presented a moment for this leo to consider the Harare and Banjul Protocols following my fellow Afro-IP contributors, David and Paul's comments on the controversial Kenyan patent decision posted here. My thoughts for your consideration:
A review of the two Protocols (Harare and Banjul) indicates that substantive examination of patents and utility models is undertaken by or on behalf of ARIPO centrally but examination of industrial designs and trade marks is left to Member States. Under the trade mark protocol (Banjul) there is a specific provision that cancellation of trade mark rights is to be dealt with under local law unlike the provisions dealing with patents and utility models. There is no clear provision relating to industrial designs; in fact the wording (Section 4(6) of the Harare Protocol) is very similar to s59 of the Kenyan legislation decided on in Chemserve. It would therefore appear that this decision:
- Indicates (unsurprisingly) that provisions of national law are very important when enforcing and defending rights under ARIPO. ARIPO commentators who had acknowledged that only a few member states had incorporated ARIPO protocols into national law (especially relating to trade marks) but felt that ARIPO rights would still be recognized or protectable under the spirit of the protocols, will be exposed as optimists.
- This judgment shows the importance of accurate drafting of local laws when it comes to ARIPO rights. Those wishing to use the ARIPO systems will need to assess the actual wording of local legislation to ensure that rights can be properly enforced or defended.
- Ironically, IP portfolio managers may now have more reason to use the ARIPO system because of the difficulties in having certain rights revoked. For example, it would be very handy to obtain an interim injunction (if possible and one is persuasive enough) whilst the cancellation counterclaim navigated its way down the Zambezi and through the ARIPO tribunal. Filing for rights using both the local and ARIPO system may give the IP litigator a number of useful options when enforcing the right.
About three hours after the IP Crammer seminar Afro Leo received an Eye Witness News link from Sara Spiro (in fact we were all eye witnesses - it took place outside IP Crammer seminar venue) of the capture of the suspected "Rolex Gang" kingpin. Just in case we needed it ... a timely reminder that African IP is never dull. Oh, and "Rolex Gang".... is that unfair advantage or detriment? ;)