Thursday, 26 February 2009

200 before lunch

Afro Leo is an avid cricket fan and about to witness RSA take on Australia in the first test of the RSA leg of the series. No test cricketer has ever scored 200 before lunch but there is a chance that Afro-IP could. We need three subscribers to achieve the feat. Spread the word - our efforts are for free and thank you for your continued support.

Feldman and Cipla case updates

Afro-IP's 500th post reports that as of yesterday the RSA judge in the CIPLA case is procrastinating and we are still without judgment, despite promises.


Meanwhile, Afro-IP has been able to unearth a court settlement in the Feldman v Samro case where that case has been referred to arbitration (linked here). The case has put SAMRO squarely in the spotlight over its transparency and policies and seems to cast a shadow over Afro-IP's recent positive post on Samro's Xmas bonus. Readers may recall that Feldman, representing the estate of Brenda Fassie, has issued a claim for royalty income allegedly not paid by Samro since 2006. It seems unfortunate though that this case has been referred to arbitration especially as the Court declared that "the arbitration and any appeal shall be private arbitrations and confidential to the parties". Samro plays a very important role in the development of musical talent in Africa and if its own transparency is under scrutiny then it seems appropriate that the dispute be transparent too.

Afro-Ip would welcome comments on both cases.

Wednesday, 25 February 2009

RSA: GDP and IP filings

Today numerous reports have shown a contraction in the last quarter of 2008 GDP in South Africa (see for example here) following statistics released yesterday. The SA economy shrank by 1.8% and manufacturing contracted by a whopping 21.8%. IP filings across all disciplines show a marked decline too during the same period, according to figures from the SA Registry. The six month moving average showed a decrease of roughly 10% across trade mark, design and patent applications for the same quarter. The direct correlation between IP filing trends and GDP growth/contraction is not unsurprising. However, there are arguments that tight economic conditions can lead to an increase in IP filings where, for example, companies focus on innovation and licensing to try an create new revenue streams or use their IP to raise finance. In RSA, a weak currency in times of economic hardship can lead to increased IP filings from RSA exporters both nationally and internationally but can make profit difficult for foreign exporters selling products or services locally, leading to a decrease in IP filings.

Tuesday, 24 February 2009

Access to Drugs: Gilead's non exclusive model

American bio-pharmaceutical major Gilead, that has entered into generic licensing deals with 10 Indian pharma firms to distribute its HIV drug Viread, is all set to roll out its key anti-AIDS drugs at affordable prices in India and 94 other resource-limited countries through its unique licensing model according to this article in The Hindu.


"Under the model, Gilead has issued non-exclusive licences to the manufacturers to sell generic versions of the key anti-AIDS drugs Viread and Truvada, charging a five per cent royalty on sales of finished products.


"The policy of allowing these companies to compete amongst each other will drive prices down to the benefit of consumers. The low royalty being charged by Gilead is also a key factor for the low pricing to be achieved by the Indian generic manufacturers," Gregg Alton, Gilead's senior vice president and general counsel, told IANS.


"The agreements include a full technology transfer, to enable faster ramp-up of production of high quality product, and allow the generic companies to manufacture commercial quantities of both active pharmaceutical ingredient (API) and finished products," Alton said in an interview. "


In hebrew Gilead can mean eternal joy, is their licensing model reason to hope so?

Monday, 23 February 2009

Intel pledges support for Egypt in Cyberpeace Initiative

An article in AME Info ("Intel takes leading role in annual Cyberpeace Initiative in Egypt") reports that semiconductor chip giant Intel has reinforced its commitment to the Egyptian community by taking a leading role in the Cyberpeace Initiative (CPI). This involvement is seen as part of Intel's continuing effort to endorse education advancement and inspire the next generation of innovators.

The CPI's Egypt launch, attended by Egypt's First Lady Suzanne Mubarak, seeks to raise awareness about knowledge transfer safety through the internet. Intel also reinforced its commitment to education in Egypt by announcing the provision of Intel Learn training to over 5,000 students in CPI, thus helping the students develop 21st learning skills and understand their responsibility in cyberspace. According to the article,
"CPI's mandate is to increase awareness about the immense potential of information and communications technology in today's global arena, and of Internet safety. In order to accomplish their mandate, CPI will engage in conducting research on current e-safety needs of young people in Egypt, assess the most appropriate guidelines for safe internet usage, and contribute to wider strategic programs".
It is not known what the CPI's position is with regard to intellectual property rights and the balance between protection of authors' works and facilitating access to them.

Saturday, 21 February 2009

African Countries Suggested for the USTR Special 301 Report

This week, the IIPA released its 301 Press Release detailing which countries it feels should be placed on the United States Trade Representative's (USTR) Special 301 Report.

The Special Report "highlights shortfalls in intellectual property protection" and "acknowledges progress" by US trading partners.  (For more information on the Special 301 Report, see here.)  Each year, the International Intellectual Property Alliance (IIPA) submits it's suggestions to the USTR for which countries should be placed on the list.  The IIPA released the 2009 suggestions on Tuesday.  IIPA suggested only two countries from the African continent for inclusion in the Special 301 Report: Egypt (Priority Watch List) and Nigeria (Special Mention).

Egypt: Last year, Egypt was on the Special 301 Watch List.  The IIPA suggests that this year Egypt be placed on the Priority Watch List.

"In Egypt, what should be a shining economic success story of ingenuity and creativity in Egypt’s rich creative industries, instead is a nightmare market for right holders, stunted by piracy, difficult bureaucracy, and almost unparalleled market access hurdles.  Trade losses and piracy levels worsened in 2008 for most industries in Egypt."

The Egypt report goes on to explain some of the reasons for these trade loses.  They include over-broad moral rights and, apparently, the fact that the Egyptian government wants Egyptian citizens to see more Egyptian culture than foreign culture.   [I am not sure how that plays into the national treatment requirements of TRIPs, but it doesn't seem like censorship requirements to ensure imported products meet local laws should be counted in IP trade-loss amounts.]

Nigeria:  Nigeria has not appeared on the Special 301 Report.  This year, the IIPA gives them a Special Mention.

"IIPA submits this Special Mention report on Nigeria to highlight piracy challenges, including high quality counterfeit product, indicating a level of criminal organization not previously detected."

The IIPA concerns for Nigeria focus on increased internet access, the high increase of optical disc replicating plants, and the organized crime nature of Nigeria's pirates.

Friday, 20 February 2009

Anti-Counterfeits conference held in Kampala

Africa Matters, a consultancy firm headed by Baroness Lynda Chalker recently organized an Anti- Counterfeits conference in Kampala, Uganda.

The workshop departs from previous Intellectual property related workshops in its direct focus on what is increasingly becoming a menace to legitimate business, health and safety. This is in part because of the increasing concerns about the dangers of counterfeits as pointed out by the Presidential Investors Round Table(PIRT) in Uganda inn 2007 and 2008.

President Yoweri Museveni opened the conference by warning of the dire impact of counterfeits on the economy. According to the Monitor report, "Mr Museveni said he would be comfortable employing the harsh communist Chinese strategy of hanging culprits who profiteer from counterfeit goods, to deter individuals from indulging in illicit trade". As if to emphasize how challenging the situation is, Ms. Chalker asserted that "more than half the anti-malaria medicines in Africa are counterfeit".

One of the positive remarks made was a statement by the Minister of Trade, Tourism & Industry who stated that the Anti-Counterfeits Bill, 2009 will be presented to cabinet soon. Under the proposed law, anyone found in possession of counterfeit goods will be liable to a 5 year jail sentence.

On the other hand, "individuals who manufacture, produce or make the counterfeit goods, will be liable to paying a fine 10 times the value of the genuine goods, an order of permanent closure of business premises and a jail sentence". These provisions go over and above the existing provisions. However, the potential good of this legislation will depend on the willingness of Judicial officers to implement the stiff penalties under the law.

Overall, these are positive noises for brand owners.

The downside is that at the same conference, it was reported that Sara Lee, manufacturers of the famous Kiwi shoe Polish will be ceasing manufacturing in Kenya and a few other African countries due to incessant counterfeiting. In a way, this sad story underscores the fact that trademark registration alone is insufficient to protect certain popular consumer brands. Governments such as the Ugandan government need to assist trademark owners by strengthening customs measures, quickening judicial interventions and training law enforcement officers.

Lobbying for IP legislation changes in RSA

This is a call to all readers for information on how one goes about effectively lobbying for changes in IP (in particular copyright) legislation in RSA, which bodies to use (eg the SAIIPL, DTI, SAMRO, SAFACT, Universities, IP law firms etc), what type of personality is best suited for the role (eg academic, lawyer, politician, speaker, professional lobbyist), when and how such lobbying is best undertaken (time of year, election time, before 2010 World Cup) and how long is it likely to take? Could or should Afro-Leo or any reader have a role?

Grateful if you could please email any suggestions here?

GSK radical shift on IP policy for developing countries

Andrew Witty, (GlaxoSmithKline chief executive) has said this week that GSK will:

• Cut its prices for all drugs in the 50 least developed countries to no more than 25% of the levels in the UK and US – and less if possible – and make drugs more affordable in middle-income countries such as Brazil and India.
• Put any chemicals or processes over which it has intellectual property rights that are relevant to finding drugs for neglected diseases into a "patent pool", so they can be explored by other researchers.
• Reinvest 20% of any profits it makes in the least developed countries in hospitals, clinics and staff.
• Invite scientists from other companies, NGOs or governments to join the hunt for tropical disease treatments at its dedicated institute at Tres Cantos, Spain.

The full article in the The Guardian highlighting the radical move (especially the concept of patent pooling by big pharma) can be located here. Further critical review can be located here.

This obviously appears to be exceptionally good news for most countries in Africa. It is also not the first time an apparent softening on IP by big pharma has been reported this year (see post here.) One agrees that it would have been very welcome to have seen HIV research included in the patent pool and it will be very interesting to hear feedback on the effectiveness of this move over the coming years. So often we hear reports that there are numerous factors contributing to the "access to drugs" problem that even radical measures such as these do not necessarily mean that the man on the street actually receives the drugs he needs. Furthermore, the problem and danger of counterfeit drugs in Africa still requires much attention. Afro-IP also expects that the very large price differentials between developed and developing countries as a consequence of this action will place pressure on grey goods legislation and policies of developed countries. One also wonders how generics will react to protect their market share....oh and by the way, where is the CIPLA judgment promised by that SA judge last week?

Wednesday, 18 February 2009

Business Software Alliance conducts over R2 million worth in actions against illegal software in South Africa

Afro-IP has learnt that The BSA conducted more than 193 legal actions in South Africa in 2008.

The BSA found that the cost to businesses of software piracy was more than R2 million ($207 571) in 2008, with most piracy found in the ISP sector in the greater Johannesburg area. Of the 193 legal actions that the BSA took on behalf of its members, more than R130 000 ($13 041) was paid out in damages.

Alastair de Wet, Chairman of the SA BSA committee, said: “With over 193 legal actions alone in South Africa in one year, the size of the piracy issue is demonstrated in the country and the commitment to BSA to reduce illegal software use. However, it is not only the financial consequences that businesses must consider. Using unlicensed software opens businesses up to the risk of operational issues, such as viruses causing downtime, security threats, including data loss, and reputational damage. We urge companies to understand the risks of using pirated software, as well as the advantages of licensed versions. Legal software provides support, services and upgrades, which ensures your business runs securely and efficiently.”

Across Europe, Middle East and Africa, because of BSA actions, the cost to businesses (damages and acquiring legal software) reached more than $23 million in 2008; of which, just over $8 million was paid to the BSA in settlements and more than $15 million spent by companies on the purchase of business-critical software for compliance purposes. More than 3,000 legal actions were conducted by BSA in 2008 across the EMEA region, as a result of 5,546 leads, which averages at over 460 businesses reported to BSA a month.

Sarah Coombes, BSA’s Senior Director for Legal Affairs, in Europe, Middle East and Africa, said: “Breaching intellectual property rights (IPR) does not just impact the software publisher; the 2008 costs to businesses illustrate the serious financial consequences faced by companies who illegally use unlicensed software. In an effort to crack down on piracy, we will continue our worldwide effort to identify companies which flout the IPR laws. In uncertain economic times businesses should protect their assets, rather than use the unstable market as an excuse to skip corners.”

The BSA encourages reports of suspected software piracy, whether regarding businesses using unlicensed software, or individuals and organisations selling pirated software over the internet. Confidential reports can be made at www.bsa.org.

Kenya's new anti-counterfeit legislation discussion

John Syekei (pictured) has emailed Afro-Ip alerting them to an article by Jim Onyango in Business Daily entitled Black Market Thrives Despite Enactment of Anti-Piracy Law reporting on the effectiveness of the new anti-counterfeiting laws in Kenya. "Local firms say imitation of goods is rife despite the recent enactment of stiff anti counterfeiting laws. But some businessmen say it’s too early to determine the effectiveness of the laws which were put in place in January after a five year hesitation by the legislature." Afro-Ip asks: do you agree?

The effectiveness of the new legislation apparently has also impacts the discussions on the EAC common markets protocol. According to the article"..Tanzanian manufacurers are opposed to opening up Tanzanian borders for the free movement of goods from Kenya because it may lead to fake goods entering the Tanzanian market." This statement is likely to be controversial if one considers earlier postings and comments on the development of the EAC and the grave state of counterfeiting in Tanzania, here and here.

New Egroup: Youth in Africa

This knowledge portal, aims at promoting the following broad principles in youth development with Social Entrepreneurship as a cross cutting theme including "Youth participation in Intellectual property". Afro-IP wishes them well.

Ethiopia to Protect Limu & Lekempte as trademarks


In a move that emphasizes the importance placed on protecting any aspects of Ethiopia's famed coffee brands, the government there has decided to file for trademark protection over its Limu & Lekempte coffee brands. Ethiopia already has trademark protection over its lead brands, Yirgacheffe and Sidamo

The New Vision newspaper in Uganda reports that "The Ethiopian Intellectual Property Rights Office(EIPRO) has embarked on efforts to secure trademark certificates for Limu and Lekempte coffees during the 21st American Specialty Coffee Conference" - words attributed to Mr.Alemu Abebe EIPRO's director.

Ethiopia gained alot of press attention over the past couple of years due to its bare knuckle fight with Starbucks Coffee over the Yirgacheffe and Sidamo trademarks. It is not apparent as to whether those opposed to Ethiopia's use of the trademark system to protect what appear to be geographical indications will file opposition proceedings against the marks.

Overall, Ethiopia through its enthusiastic embrace of the trademark system shows how Intellectual property can to some extent be leveraged to promote the culture and unique products of developing countries in the rough and tumble struggle for markets.

Tuesday, 17 February 2009

Kenya: AC[T]A law passed



Contrary to a previous post last year (here), doubting the passing of the Anti-Counterfeit Bill 2008 by parliament, apparently the Bill was passed on 10th December 2008 together with the controversial Media Bill, 2008. The Act was assented to by the President on 24th December 2008 and will come into force upon notice by the Minister for Industrialization.

The Act establishes an Anti-Counterfeit Agency (ACA) whose mandate includes combating counterfeiting, trade and other dealings in counterfeit goods in Kenya and “charging fees for services rendered by it.”

It would appear that save for slight amendments meant to allay the fears of the opponents of the Act, especially on the issue parallel importation of generic medicine, the Act remains the same as the Bill first introduced in parliament on 1st July 2008. Accordingly, in relation to medicine a new (sub) paragraph d was added to the list of actions enumerated in section 2 to give a definition of counterfeiting. The added (sub) paragraph d reads that:

“in relation to medicine, [counterfeiting means] the deliberate and fraudulent mislabelling of medicine with respect to identity or source, whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging.”

In addition, there is a proviso to the effect that “Provided that nothing in this paragraph shall derogate from the existing provisions under the Industrial Property Act.”

The amendments may have worked to secure acceptance of the Bill by the coalition to access to essential medicine and others who had argued for inclusion of the WHO definition of counterfeit medicine in order to distinguish medicine from other counterfeit products. The question is whether the added paragraph and proviso in reality provide a workable guarantee that production or importation of generic medicine is not hindered. For one what is the meaning of the phrase “in relation to medicine”? What is being related to medicine? In any case, if a particular trade mark is counterfeited does it matter whether it is in relation to medicine or any other product to the extent that if it is medicine the court will look up the definition of counterfeiting in subparagraph d and do away with the other definitions in subparagraphs a-c.
The Act can be accessed here.

Nigeria: Unusual Mobil(e) patent case

THISDAY ONLINE reports that "the case of UWEMEDIMO AND COMMANDCLEM V MOBIL PRODUCING UNLIMITED (FHC/UY/CS/47/2003) recently decided by Olotu J. of the Federal High Court, Uyo is remarkable in more ways than one. Firstly, that court moved from Uyo to continue proceedings, sitting in New York. The move, at Mobil’s request, was to enable the court take the testimony of two of their witnesses who were octogenarians and in ill health. Secondly, it was a case in which the stakes were high - a colossal sum of money (over N500 billion) was involved. Dr. Tony Ukam prosecuted the Plaintiffs’ case which was robustly defended by Dr. Eyimofe Atake, SAN. At the end of the day, the Plaintiffs lost. STEPHEN KOLA-BALOGUN and KOLADE OLAWUNNI, in separate articles, review the case and raise posers as it appears to have made history by being the first such one in which a Nigerian court rose and moved en masse to a foreign country to continue proceedings."

"In a sensational judgment delivered by the Honourable Justice G. K. Olotu of the Federal High Court Uyo sitting in rather unusual circumstances and at a rather unusual venue, Mobil Producing Nigeria Unlimited as Defendant were relieved to have had a multi-million dollar suit brought against them by the Plaintiffs, the registered owners of a paint patent dismissed in its entirety." (THISDAY ONLINE)

Monday, 16 February 2009

Ethiopia to upgrade IP law, eying WIPO membership

Intellectual Property Watch and Walta have reported that the Ethiopian Intellectual Property Office (EIPO) has now completed a draft intellectual property law which EIPO will present to the Ethiopian government in the coming months. The law is designed to enable Ethiopia to join the World Intellectual Property Organization. Patent applications are apparently on the increase in Ethiopia, with some 1,794 applicants having been 'certified' over the past decade.

Feldman v Samro & Cipla cases update

Over the weekend Afro-IP received emails from Tim Ball (Brian Bacon) and Graeme Gilfillan (Nisa) on the recent SAMRO and CIPLA cases. Tim explained early Friday that he we was waiting for judgment to be handed down in CIPLA case. Graeme has provided a fairly comprehensive commentary including newspaper report reference on the SAMRO cases which can be viewed here.

Afro-IP also wishes to thank you for your feedback on "the New Look website" which seems to appeal to most of our readers.

Friday, 13 February 2009

Friday wind up

Recently The Coca-Cola Company was succesfull in its bid to close the MY Coke Fest blog MyCoke.co.za by properly enforcing its intellectual property rights. Herman Mason (posting on the popular Marklives.com) has provoked some revealing commentary on the effectiveness of this action illustrating the wider considerations for inhouse Counsel looking after big brands. You can read it here.

Feedback from the INTA roundtable held this week on Traditional Knowledge has been very good. The event was well organised by Spoor & Fisher and most came away with more questions than answers - a sign of a thought provoking discussion. Will firms will now start to promote themselves as traditional knowledge specialists? ARIPO have a dedicated section on TK.

If anyone can update Afro-IP on the progress of the CIPLA & Samro High Court judgments, please feel free to post the results directly on to the blog or send an email here. Meanwhile The Times of India reports on action in the Netherlands against CIPLA (see article here)


News from ARIPO is that The Second edition of the Masters Degree in Intellectual Property (MIP) will be launched on May 4, 2009. The Program shall be offered for the duration of twelve (12) months, from May 4, 2009 to April 30, 2010 - you can consider the application here.

Thursday, 12 February 2009

US judge doesn't get it right

Afro-IP reported some time back that CC Africa had launched its new new brand name &Beyond. Suprisingly, we have since learnt that Abercrombie & Kent obtained a temporary restraining order in the US to prevent the former CC Africa from using the ampersand (“&”) in its new name “&Beyond” in the US (only) pending resolution of a trademark infringement suit over the right to use the ampersand as a trademark. A summary of the dispute is located here.

The comments made by Susan and Pete based in the US just about say it all:

Susan:
"& isn't this stupid? I see no confusion whatsoever between the names. It is "A&K" not "&AK". The letters are not similar. A&K uses initials AND &Beyond uses a word"

Pete:
What I find amazing is that if you Google "& travel" you'll get 738 million sites. Now that's ambiguity.

Afro-Leo wonders just how the US Patent Office granted exclusive rights without a disclaimer for the "&" (so common that it appears beneath his paw on the keyboard) in the first place (see below a copy of the USPTO website information relating to the registered mark):

Word Mark &
Goods and Services IC 039. US 100 105. G & S: Conducting sightseeing tours for others; arranging travel tours; making reservations and bookings for transportation; transport by boat, air, railway, and barge.
FIRST USE: 20080201.
FIRST USE IN COMMERCE: 20080201
Mark Drawing Code (5) WORDS, LETTERS, AND/OR NUMBERS IN STYLIZED FORM
Serial Number 77351675
Filing Date December 13, 2007
Current Filing Basis 1A
Original Filing Basis 1B
Published for Opposition May 6, 2008
Registration Number 3547995
Registration Date December 16, 2008
Owner (REGISTRANT) Abercrombie & Kent Group of Companies, S.A. CORPORATION LUXEMBOURG 124, Boulevard de la Petrusse Luxembourg LUXEMBOURG L-2330
Attorney of Record Thomas P. Arden
Description of Mark Color is not claimed as a feature of the mark. The mark consists of a stylized ampersand symbol.
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE

Tuesday, 10 February 2009

Nigerian Musicians Want Payment for Music Played on Airplanes

logo Musical Copyright Society of Nigeria (MCSN) is asking for N195 million (about 13 million Rand or 1.3 million US dollars) from Virgin Nigeria as payment for the airline's practice of offering music managed by MCSN to passengers aboard its in-country and long-haul flights.   The amount was calculated by MCSN based on the number of flights flown by Virgin Nigeria over the past five years.  [Afro-Leo (or at least this little Leo) isn't sure how music played on airlines usually works or how the suspension of long haul flights at the beginning of 2009 will affect the ability of MCSN to collect outside of Nigeria via its international partners.  Perhaps a reader can offer information on how royalties usually work in this situation.]

"They cannot use copyrighted materials to promote their business and not pay for it. In their long haul flights, they play Nigerian music as well. The worse part of it is that the owners of this music are dying by the day, while they are making profit at their expense." - MCSN CEO, Mayo Ayilaran

While MCSN has completed a court-sanctioned raid of the Virgin Nigeria offices, the collective management society is also discussing plans to bring suit against several telecom companies in Nigeria.  According to Mr. Ayilaran, the telecom companies do not pay royalties for the songs they offer as ring tones.  Most of the cellular providers in Nigeria are part of international corporations who would probably have a particular division for handling licensing issues.  This leaves Afro-Leo wondering if the problem isn't that the telecom companies aren't paying royalties, but rather that (like MTV-BASE in SA) they don't know who to pay due to the ongoing government/collecting societies feud in Nigeria.

Despite the unclear standing of MCSN, it's clear that the society intends to continue attempting to protect its members rights.

(Full story in The Punch here.)

Monday, 9 February 2009

Are consumers in Malawi just more brand-savvy?

Malawi's Daily Times carried an interview last week with Fredrick Changaya, Marketing Manager with Candlex Limited, described by interviewer Caroline Kandiero as "one of the local companies boosting Malawi’s economy". Mr Changaya emphasises the brand-driven nature of his company's success in business:
"Q. Candlex is one local company that has been in existence for some time, how can you assess the competition on the market?

In our industries, there is stiff competition. Many companies provide similar products to Ufresh, Butex, Moonlight candles, Bodycare Glycerin etc.

We thrive against competition by providing products, which offer better value propositions than many rival brands. We thrive in leading letting others follow.

Being a truly Malawian company, we believe that people of this country deserve good quality products; we do not think like many, that good quality is for export--the so called export quality syndrome. Home is best and home deserves better products such as Ufresh, Ufresh powder, Butex, Moonlight candles etc!"
This little exchange on IP infringement is quite revealing:
"Q. Production companies have complained of counterfeits, how is your company coping?

Differentiation by raising the quality bar such that those who want a genuine Candlex product will definitely notice one and those that deliberately go for counterfeits will also do so.

Working with other stakeholders such as industry members, MBS, Cama, Ministry of Justice, Registrar General etc to create laws and other infrastructure that impedes flourishing of fake products".
This all sounds so simple -- but it raises the obvious question: if "raising the quality bar" works for Candlex, why doesn't it seem to work for anyone else? For one thing, in most sectors of most industries in most jurisdictions the notion of 'counterfeit' is not limited to poor-quality goods but includes quite serviceable goods too; for another, part of the nature of counterfeits is that they so resemble the genuine product as to make it difficult or nearly impossible for the average consumer to detect the difference at the point of purchase.  Or are consumers in Malawi just far more sophisticated than those elsewhere?

Delays at the SA Registry favour Trade Mark proprietor

In Golden Fried Chicken (Pty) Ltd (“Applicant”) v Soulsa CC (“Respondent”) the High Court of South Africa has interdicted/injuncted Soulsa from infringing Golden Fried Chicken’s registered trademark SOUL. The case is a reminder of the strength of a registered trade mark right in South Africa. However, the decision also highlights whether it is appropriate for a trade mark proprietor to be able to enjoy a period of exclusivity to their unused trade mark for almost a decade (due mainly to delays at the SA Registry), without that trade mark becoming vulnerable to a cancellation claim based on non use. In this case the mark SOUL was applied for in 2001, is not in use on restuarants, and will only become vulnerable to cancellation or part cancellation on the basis of non use in 2011.

For summary of the case prepared by Msawenkosi Gaxo(Bowman Gilfillan) click here.

Judge Southwood , who adjudicated in this case, has had considerable experience in trade mark matters and is one of the more respected voices on the bench. He dealt with matter in a short judgment but Afro Leo would have liked to have digested his reasons for dismissing arguments (if raised) that SOULSA appears to stand together as one word (phonetically similar to SALSA) where the identity of the registered word SOUL (an ordinary recognisable word) is changed by the addition of "SA" such that the two words SOUL and SOULSA (as used) are in fact distinguishable. It is also noteworthy that although the SOUL registration was not reclassified according to the latest revised edition of the Nice Classification (where restaurant services now fall in class 43 and not in class 42), such omission was apparently not relied upon by the defence, and correctly so it would seem.

Once again, Afro-Ip wishes to thank Msawenkosi for drawing their attention to this case and for providing the handy summary for readers.

Friday, 6 February 2009

EU - East African Community EPA IP issues

Apart from the common market protocol negotiations that have been reported by Darren here, the EAC negotiations to take place in March 2009 will among other issues focus on Intellectual Property.

According to sources close to the negotiations, the draft text will consider all the areas under the TRIPS agreement such as copyright (including the copyright in computer programmes, and neighbouring rights); patents including patents for bio-technological inventions; protection for plant varieties; designs; layout-designs (topographies) of integrated circuits; geographical indications; trademarks for goods or services; protection for data bases; protection against unfair competition and protection of undisclosed confidential information on know how.

Some of the new areas to be tackled include traditional knowledge and folklore. The final text on issues such as this could determine how future negotiations on this issue under the auspices of WIPO or the WTO would turn out.

Subject to the pace of substantive negotiations, the parties (EU and the EAC) are expected to begin full implementation of the new IP regime not later than 1 January 2014. This appears to be an ambitious schedule, considering that most of the EAC member states as LDCs have failed to meet TRIPS standards which are considered by some to be less stringent than those contained in the draft EU-EAC Intellectual Property text. Should the EAC member states sign up on this text, the IP regime of the four member states that are LDCs ie Tanzania, Uganda, Rwanda and Burundi will require tremendous financial and technical support to establish functional IP registries, border and judicial measures in order to comply by 2014.

EAC protocol by April!

East Africa Community member states on Wednesday opened talks on the rules governing the proposed common market, raising hopes that their citizens may soon move and trade freely across the borders. East African Community (EAC) deputy secretary-general Julius Onen said a protocol for the establishment of the common market would be ready for signing in April. (Daily Monitor)

Such a development is likely to require harmonised IP laws across the region in a similar fashion to that implemented by the European Community through, for example, their Haromization Directive on trade marks. It will be interesting to see progress of this protocol. For more info from Afro-IP on the EAC click here.


It can be a whole lot of fun "writing" the EAC...

Thursday, 5 February 2009

Cipla Medpro hearing update

Yesterday was the final day of the Servier v Cipla Medpro hearing and according to Adv Paola Cirone who attended the hearing, judgment is due to be handed down next week. We wait in anticipation.

Wednesday, 4 February 2009

Copyright and A2K Information service

Afro Leo has heard from Denise Nicholson (Copyright Services Librarian, University of the Witwatersrand, Jhb) that the "Copyright & A2K Issues" Information service has been launched. This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc. Readers may like to subscribe by clicking through this link

The service used to be called "Denise Nicholson's Information Service" for those people who might have received the Service in the past.

New IP law in DJIBOUTI

Natalia Pereira has kindly passed Afro Leo an announcement by WABAT DAOUD LAW FIRM about an exciting new IP development in DJIBOUTI (phonetically similar to a traditional SA dish)

"We have the advantage to inform you that the New Intellectual Property Law was adopted by the Council of Ministers on Tuesday 27th January 2009 .

We are now expecting the project to be voted by the House of Representatives this year , hopefully within 3 or 6 months time.

It is likely that this law will be passed without any addition or amendment to the text we provide you here attached for your consideration.

As from now, the Trade Ministry is urging to establish the IP Office and we are cooperating as counsel for the IP Office establishment and the Decree drafting."

A copy of the new law in French can be downloaded here.

A quick note to also draw your attention to Graeme's comprehensive comment on Jeremy's post immediately below concerning the upcoming copyright case on February 11th 2009 in the High Court, Johannesburg, namely Feldman D v SAMRO - Case # 06/22968. Graeme concludes that case(s) "should be of great interest to anyone wishing to see leading South African copyright Counsel grapple with both existing SA Copyright Law and a variety of music industry practices and beliefs."

Union warns of Algerian trade in fakes

El Khabar reports that the importation of counterfeit goods has cost the Algerian economy some 30 billion Algerian dinars (around US$ 427,000000) during 2008. The National Union of Merchants and Craftsmen, UGCAA, has warned against the alarming black market and counterfeit phenomenon in Algeria, adding that 50% of goods traded there are sold in the black market.

Tuesday, 3 February 2009

Afro-IP milestone

Today Afro-IP celebrates 20,000 hits and wishes to thank those who have taken the time to read its postings. It is also a chance to welcome Aurelia J. Schultz to our list of contributors giving us greater coverage on IP issues across Africa - some of you may have already noticed her excellent insights on issues in Nigeria, for example. However, we wish to invite readers to comment, question, contribute and interract directly on the blog through the comment section or by sending information to Afro-IP here. Thanks for your support.

Afro Leo

Monday, 2 February 2009

The tide of Generics

In an easy-to-read article in Pharmaceutical Technology, Elizabeth Hill (Head of Transaction Support for Cambridge Consultants Ltd (UK)) discusses the barriers to to entry for generic pharma companies based in emerging economies seeking to grow their businesses in the US and Europe.


"The potential rewards of success for generic pharmaceuticals companies in regulated markets are tempered by the need to overcome regulatory, intellectual property and marketing hurdles to achieve marketing authorization and market access. An understanding of the potential barriers and developing the strategies to overcome these is of value to both companies and potential investors."