Tuesday, 30 November 2010


Kenya's IP office CEO position advertized

Prof Odek
Kenya Industrial Property Institute has (re-) advertized the position of the Managing Director. The term of the incumbent Managing Director, Prof James Otieno-Odek, who took over in 2005, comes to an end next month.

Qualifications and Experience required include:
  • A University degree in Law, Science, Information Technology or Business. Administration from a recognized university.
  • A Masters degree in Intellectual Property, Law, Science, Information Technology or Business. Administration from a recognized university will be an added advantage.
  • At least seven (7) years working experience in matters related to Industrial Property
  • Should have served at top management position for a minimum period of five (5) years
  • Undergone management training for a minimum period of four (4) weeks from a recognized institution.
  • Must have a clear understanding of the role of industrial property rights in Kenya’s socio-economic development and
  • Must be computer literate.
Other requirements are that the ideal candidate should be a person of high integrity, a team player, a strategic thinker with excellent communication skills and good interpersonal skills.

Qualified candidates are required to submit their CV to the Chairman of the Board through e-mail chairman@kipi.go.ke  before 10th December 2010.

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Monday, 29 November 2010


"To EAC according to its needs ..."

The Protocol on the Establishment of the East African Community Common Market, established under Articles 76 and 104 of the Treaty for the Establishment of the East African Community (EAC), became operational on 1 July 2010.  This Protocol establishes a common market between Tanzania, Kenya, Burundi, Uganda and Rwanda; it is hoped that this will enable the five member states to enjoy accelerated economic growth and development, extending economic and social cooperation among the member states.

Articles 5(3)(k) and 43 of the Protocol require member states to cooperate in the area of IP rights. This cooperation is expected to include measures to prevent infringement, misuse and abuse of intellectual property and the setting up of mechanisms to fight piracy and counterfeiting.

Source: "Towards Community IP rights protection: the East African Common Market Protocol", article in International Law Office by Anthony Gakuru (Njoroge Regeru & Company), from which further particulars may be discovered.

Afro Leo hopes to hear lots about the progress made by the EAC towards its IP aims and objectives. If you have any useful news or insights, do let him know.
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Sunday, 28 November 2010


Kenya’s Anti-counterfeit Agency comes out with blazing guns

The Daily Nation reports that Kenya’s Anti-Counterfeit Agency has seized suspected counterfeit pencils, worth Ksh 24 million (about US$ 300,000), at a warehouse in Nairobi’s industrial area.

The seizure followed a complaint by Staedtler, the German maker of pencils of similar name. It would appear that the pencils were impounded not because of counterfeiting of the trade mark STAEDTLER rather because of the “similarity in the design, shape and colour.” The accused pencils bearing their own trade mark are manufactured in China and retail at Ksh. 10 compared to Ksh 40 for the Germany made STAEDTLER pencils.

At the same time, the Agency issued a notice to retail outlets and stores ordering them to surrender stocks of the suspect pencils in their custody. The notice warns that failure to comply with the notice could lead to criminal action being taken against the outlets in accordance with the Anti-Counterfeit Act 2008. The notice indicates that the suspect pencils infringe on international trade mark no 645587 registered under the Madrid System and designating Kenya.

The report indicates that the culprit will be taken to court. If that happens it will be interesting to find out how the Kenyan courts will address the matter more so in attempting to demarcate the sort of acts that constitute counterfeiting from the viewpoint of the Anti-counterfeiting Act and trade mark infringement from the position of the Trade Marks Act.

Incidentally, Kenya’s Anti-counterfeit Act is almost a carbon copy of the South African one. Perhaps the Kenya Court could borrow a leaf from South Africa, where as reported here by Darren, the South African Courts are trying to discourage trade mark owners from using the Anti counterfeit Act to pursue trade mark infringement disputes.

Interestingly a cursory inspection of the cited international trade mark reveals that the trade mark claims features such as the hexagonal shape of the pencil and the colours red, black, white and beige. This could be an important case to watch for a number of reasons. First, the Kenyan court could take the opportunity to debate or provide direction in relation to the scope of trade mark protection in relation to the design, shape and colour of trade marks.

Secondly, it will be interesting to watch how the courts interpret and enforce the Anti-counterfeit Act in light of the controversies that have dogged it before and after it was enacted in 2008. Noteworthy is the High Court decision that suspended application of the Act “in relation to medicine”, and in which the Judge amazingly observed that the seizure of Indian generic drugs in Europe was because of the Kenyan Act.

Thirdly, India has repeatedly complained that Kenya’s Anti-counterfeit Act is contrary to the TRIPS agreement in so far as the Act recognizes intellectual property rights subsisting in Kenya “or elsewhere”. In a sort of tongue-in-cheek proposal, can the case be used to test the efficacy of the “elsewhere” provision in that the cited Madrid system registered Trade mark “subsists elsewhere” in the sense that it was registered (elsewhere) in Geneva by WIPO?
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Friday, 26 November 2010

Darren Olivier

CIPRO's Trade Mark Division - the inside track

CIPRO has suffered the recent passing of its CEO and has been embattled by criticism against certain Divisions, yet its Trade Mark Division has managed to get examination times down to 7-8 months from filing and reduced a significant backlog in issuing registration certificates. Recently, whilst putting together his firm's IP Crammer seminar, Afro Leo had the opportunity to catch up with the Senior Manager (Registrar) : Trade Marks at CIPRO - Fleurette Coetzee, to ask her about these achievements. Fleurette also spoke openly about CIPRO's relationship with law firms and the SAIIPL.

For the benefit of readers and with the kind permission of CIPRO, the questions and answers can be located here.

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Thursday, 25 November 2010


Coffee branding in Ethiopia: PIIPA restates the position

We all need a little shake-up
from time to time, says Afro IP
Recently, in "Ethiopia Coffee Branding: what is the real story?" (here), Afro Leo drew the attention of his readers to a circular from PIIPA which contained the second in its series of Pro Bono IP Case Studies. Having done so, the post continued thus:
"This Afro-IP contributor would like to know a little more about this case study, not least because over the past couple of years he has rather received the impression that quite a few people are claiming credit for "solving the Ethiopian coffee problem". He notices that there's no mention of PIIPA's involvement in "Ethiopia and the Starbucks Story", published in the WIPO Magazine here or in earlier Afro-IP posts, including "New branding scheme for Ethiopian coffees" here.  Also, ...  this blogger is a regular purchaser of Yirgacheffe beans from Starbucks, but has yet to see either the Ethiopian Fine Coffee logo or the Yirgacheffee logo on any packet.  Are the Ethiopians deriving income from licensing logos that aren't even being used?

What Afro Leo would like to know is (i) whether anyone is undertaking a reliable and objective history of the Ethiopian coffee brand licensing programme(s) which gives due credit to all participants in it and (ii) whether the income from the licensing scheme is trickling down to the poverty-stricken coffee producers in any meaningful manner.  Can readers please advise?"
No reader did advise, much to Afro Leo's disappointment -- but someone from PIIPA has at least been reading the weblog and has published this note:
"PIIPA's case studies series is intended to present examples of how PIIPA's global IP Corps helps emerging economies. In our November 2010 case study, we described the Ethiopian fine coffee trademarking and licensing initiative. To clarify, the Ethiopian Intellectual Property Office (EIPO) was not a PIIPA client, and PIIPA's involvement in the initiative was limited. Light Years IP, an organization unrelated to PIIPA, was the technical adviser to the Ethiopian Intellectual Property Office in conceiving and implementing the inititiative. With pro bono assistance from Arnold & Porter Lightyears IP worked directly with the EIPO in achieving successful results for Ethiopian coffee growers.

We apologize to our readers and to Light Years IP for the confusion. To set the record straight about this very important story, we are happy to present a summary prepared by Lightyears IP (see below)".
The new summary is welcomed, even though it doesn't specifically deal with all of Afro Leo's issues, since it's at least a step in the right direction.  It goes like this:


The Ethiopian Fine Coffee Trademarking and Licensing Initiative represented a significant effort by the Government of Ethiopia through the Ethiopian Intellectual Property Office (EIPO) to benefit Ethiopia's coffee farmers by securing greater control over the distribution of Ethiopia's fine coffees.
  • The Initiative was designed in 2003-4 by Ron Layton, CEO of Light Years IP (LYIP), to achieve "Ethiopian ownership of fine coffee brands through trademark registration and establishment of a network of distributors selling and promoting the fine coffees under license from Ethiopia".
  • Getachew Mengistie, Director General of EIPO until 2008, provided the Ethiopian leadership of the project.  Among other things, he took up the project and engaged Ethiopian fine coffee stakeholders in the Initiative.  Former Ethiopian ambassadors to the US, Mr. Kassahun Ayele and Dr. Samuel Assefa also provided leadership and engaged with Starbucks and other coffee distributors.
  • EIPO and LYIP implemented the Initiative, in an excellent collaboration. Implementation of the Project required a global pro bono trademark registration effort for the fine coffee brands under the Initiative as well as legal assistance in licensing negotiations and other matters. Ethiopia's principal legal advisor was Arnold & Porter LLP, which provided substantial pro bono services.
  • Trademark registration for the top three Ethiopian fine coffee brands, Harar, Yirgacheffe and Sidamo has been secured in the US, Canada, EU member countries as a Community Trademark, China, and Saudi Arabia, while applications are pending in other major markets including Australia, Brazil, India and South Africa.  The registered status of the Yirgacheffe and Sidamo marks in Japan is on appeal.
  • There was significant industry opposition to the Initiative.  Initiated by LYIP, a successful campaign was launched to counter industry opposition that ultimately persuaded many companies, including Starbucks, to become licensees.  To support the Ethiopian Government and stakeholders, the campaign received enthusiastic help from Students for Fair Trade, Catholic World Relief, the Lutheran Church, Oxfam America and members of the US and UK legislatures.
  • The Initiative provided Ethiopia with acknowledgment of its legitimate authority to license its exporters and foreign market distributors of the three coffee brands.   The licensing agreement was promoted in key countries around the world by EIPO and LYIP, securing over 100 foreign licensees worldwide
  • By early 2007, the Ethiopian fine coffee exporters and farmers' cooperatives unions found their new negotiating power enabled them to negotiate fine coffee price increases, moving the price structure away from being based exclusively on the NY "C" commodity market index.
  • EIPO and LYIP conducted more than a dozen awareness workshops and training sessions to build Ethiopian capacity to manage the Initiative.
  • In the financial year to June 2008, the increase in export price was the main factor in Ethiopia earning $101 million in additional coffee export income, as reported by the Ministry of Trade and Industry.
  • Currently, two additional fine coffee brands, Limu and Nekemte, have been added to the trademark registration effort.
  • The Specialty Coffee Association of America (SCAA) named Ethiopia Portrait Country at its 2008 annual conference in Minneapolis, MN, where the Initiative was showcased and promoted.
A special promotional documentary on the Initiative is on LIght Years IP website and one of a number of press interviews are available at NPR.org,
Afro Leo is gratified and thanks PIIPA for its corrective summary.
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Tuesday, 23 November 2010

Darren Olivier

IPKAT's Transhipment Update - Nokia

Following a tweet from Jeremy on Friday Afro-IP made reference to a transhipment case that has split opinion in Europe. If Europe makes transhipment of counterfeit goods unlawful, Africa may become (even) more appealing to counterfeiters moving counterfeit goods around the globe. If transhipment is not unlawful in Europe then African states may take its lead. The IPKAT blog provides this useful update.
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Monday, 22 November 2010

Darren Olivier

RSA's SCA on cloning and counterfeiting - latest case

Hot on the Puma-sponsored heels of Sebastion Vettel’s F1 win is news of RSA’s SCA decision upholding a Puma appeal in what is likely to be a landmark case involving counterfeit shoes.

Like the F1 result, this decision was not easy to predict; the SCA had held against Puma in favour of copycats Global Warming just a year ago (see Afro-IP here and here) and a statement in the recent Cadak case (see Afro-IP here) would have had the bookies trading bets against a decision in Puma’s favour. One got the sense though that anything could have happened on the day as the “interpretation of the Counterfeit Goods Act remains contentious”. The judgement itself sets the tone in para 1.

The action started at the same time as the preparations for the F1 2010 season. Puma had caused shoes imported by the Rampar (a local shoe retailer) to be detained on suspicion that they were counterfeit about a year ago. Pictures of the shoes and the relevant registered trade mark are helpfully pasted at the end of the SCA judgement.

Rampar sought a declaration that the goods were not counterfeit. They achieved success in the lower court. Two issues arose then, and now on appeal:
  1. Whether, unless the trademarked goods are cloned they cannot be counterfeit. In other words because Puma did not manufacture shoes bearing the registered trade mark in issue (they do produce others shoes) counterfeiting by Rampar could not take place; and
  2. Whether, the shoes were counterfeit within the meaning of the Counterfeit Goods Act.
The Cloning Issue

Can we clone Harms?
 Harms displayed his usual knack of making sense, negotiating the chicane of adverse opinion in Webster and Page (a local textbook authority) and the text of the TRIPS agreement with some ease. In doing so the SCA helpfully set out the applicability of different sections of the Act to different forms of counterfeiting, namely those involving copyright, trade marks and certain merchandise marks. Paras 10-22 are instructional and a worthy read.

The SCA concluded that cloning is not required but not before dealing with its statement in Cadac head on and, it must be said, with a curious lack of persuasion. The SCA simply stated that the potentially debilitating sentence (quoted below) was “in another context to make a different point” without elaborating (see para 22).

Counterfeiting involves deliberate and fraudulent infringement of trademarks and ‘counterfeit cases involve an infringer attempting to reproduce – and substitute for – the goods (not just the trademark) of the trademark owner” [ie cloning is required.]

The SCA could have said that “goods” in the sentence (quoted from Cadac and the English case of R v Johnstone – both cases involve counterfeiting) should be interpreted in RSA to mean “protected goods” as defined and interpreted by the SCA in the judgement but chose not to. It is the second definition of “protected goods” in RSA’s Counterfeit Goods Act that Harms relies on to find that counterfeiting extends notional goods (see para 19) ie that cloning is not required.

Afro Leo notes in para 19 that the SCA describes a trade mark right as a positive right eg in describing notional goods as “goods to which the owner could have applied the trade mark” which may end any debate in RSA on whether the nature of a trade mark right is negative or positive.

Afro Leo also notes that the concept of notional goods extends to a “class of goods” in respect of which the IPR can be applied “only with the authority of the owner of the IPR” and therefore could include all infringing goods ie not only those in respect of which the IPR is used and covered by the registered IPR but all infringing uses which, in the case of registered mark in class 25 could be sporting equipment or holdalls or protective clothing. This is obviously good news for brands faced with counterfeiting.

One wonders if this judgement might extend counterfeiting to stop phishing - typically excluded because phishing mostly involves counterfeit services and not goods. However, take for example the phishing site of a bank - is there an argument that the fraudulent use of the bank's trade mark on the phishing site is use of the bank's registered mark covering "electronic publications", using the "notional goods" argument.

Counterfeiting – are the shoes counterfeit?

The second issue was not considered in the lower court and therefore open road for the SCA. Since counterfeiting by nature involves the infringement of a registered mark it follows that if there is no trade mark infringement there cannot be counterfeiting but there must be more. Harms confirms this at para 24, somewhat ironically quoting Cadac:

“That is why it [a counterfeit] must be “calculated to be confused with” or “taken as being” the registered mark and why it involves deliberate and fraudulent infringement of trademarks”.

Rampar attempted to distinguish the reproductions of the registered mark on their three shoes and argued that it was likely to be seen as decorative use or mere ornamentation and not as a trade mark. The SCA disagreed on both counts.

The SCA felt that additions to the registered mark on the shoes were “at best subsidiary and do not touch the essence of the [registered] split form strip”. It is worth analyzing the difference between the three shoes in this case and the registered mark(s) against the shoes and the registered mark(s) relied on the Global Warming case to get the benefit of the judgment, especially if you happen to operate in a copycat environment.

One will also immediately ask the question why Puma had not relied on its split form trade mark in the Global Warming decision and Afro Leo understands that it is because the mark had not been registered at the appropriate time. Had Puma obtained the registered mark (which is not that dissimilar to the marks they relied on) Global's position is likely to have changed from legitimate copycat (albeit that Afro Leo thinks there was dilution in that case) to counterfeiter following the SCA reasoning, illustrating both the need to register trade marks but also the tight line between legitimate business and criminal activity.

Importantly, Harms states that one cannot “use a [registered] trade mark and then argue that it was used as ornamentation” and then cleared up some possible confusion with para 6 of the Global Warming judgment by stating that “It could be different if one is dealing with the changes to mark, for instance, if the registered marks consists of three stripes it would be a question of fact whether the use of two or four stripes would be perceived as decorative or as trade mark use”.

The Court then upheld the appeal.


Vettel adjudges copycats leg before
This case provides a useful interpretation of the Counterfeit Goods Act and is likely to be welcomed by brand owners faced with counterfeiting problems because it clarifies that no cloning is required to get the benefit of protection under the Act. The judgement admits that it is not clear whether the second definition of “Protected Goods” could be applied to copyright piracy so clarification is still required.

The case is also notable, not unlike Vettel, for its speed (any matter to reach a decision in the SCA in just over a year is exceptional) and the performance of relatively new talents (Adv Joubert and Adv Marriott) in presenting before the SCA in a case, one feels, could have gone either way.
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Sunday, 21 November 2010

Darren Olivier

Johnson & Johnson application dismissed in counterfeit goods case

Following a search and seizure under the Counterfeits Goods Act in RSA, the rights holder typically may lodge a criminal complaint with the State and/or proceed with a civil claim against the alleged counterfeiter. This recent case out of the North Gauteng High Court illustrates that a major advantage of the Counterfeit Goods legislation – namely the removal of the goods from the market - can be lost to the rights holder, if the State withdraws the charge while the civil claim is still running.

In this case Johnson and Johnson had lodged their complaint with the State and proceeded with its civil claim. The State then withdrew its charges and allowed the return of the goods to the market. It seems from the judgement that Johnson then took that decision on review and made an attempt to amend its claims in the civil case so that the goods could be returned pending the outcome of that review (see para 8). Without giving reasons but citing the respondent’s arguments, the acting Judge found that Johnson had not made out a case and dismissed the application.

It is not clear why the State withdrew the charges but the lesson, it seems, is that the State should remain persuaded throughout that a decent case has been made on the merits for the criminal complaint. The case also reminds attorneys of the need to ensure that accurate inventories are be made up during seizures.

Section 9 of the Counterfeit Goods Act provides that goods must be released if a criminal charge is not laid. It seems logical then that if a criminal charge is laid and then subsequently withdrawn that the goods are to be returned, notwithstanding that a civil claim may be ongoing. Comments welcome.

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Friday, 19 November 2010

Darren Olivier

SAIIPL's new pres, transhipment and Afro-IP stats

Tshepo Shabangu
At the AGM of the South African Institute of Intellectual Property Law this week Tshepo Shabangu was appointed President of the Institute for 2010. Afro Leo could not make the meeting - this exciting news filtered back from council member Debbie Marriott. Afro-IP congratulates Tshepo and wishes her well during her tenure.

Developments in Europe likely to be considered with interest in Africa will be the outcome of the EU transhipment case heard yesterday where Nokia is arguing that the interpretation of EU customs rules could encourage the EU as a safe harbour for counterfeiters. RSA's SCA decision on transhipment in 2005 can be located here.

Other exciting news this week is that the Afro-IP blog has reached it 500th email subscriber and its associated Afro-IP Linkedin Group its 100th member. The blog itself has been in existence for just over 1000 days and has attracted 70000 hits with a current hit rate of 2000 per month - encouraging milestones for a blog covering a continent full of innovation but regarded by many as a backwater for IP rights, enforcement and policies. Afro-IP wishes to thank those who read, support, contribute and promote news and views about African IP.
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Tuesday, 16 November 2010


Ethiopian coffee licensing: what is the real story?

PIIPA is Public Interest Intellectual Property Advisors, Inc. It describes itself as "a global nonprofit resource for emerging economies and public interest organizations in developing countries seeking expertise in intellectual property matters to promote health, agriculture, biodiversity, science, culture, and the environment". The second in PIIPA's series of Pro Bono IP Case Studies has now been circulated by email. It reads as follows:
"Client: Ethiopian Intellectual Property Office 
Location: Ethiopia 
Background: Fifteen million Ethiopians depend on the coffee industry and Ethiopian coffee sells for premium prices around the world. But the people producing the beans often live in extreme poverty and many are not aware of the value of their product and work.

IP Issue: Inadequate trademark and licensing program and controls that capture the intangible value of their specialty coffees.

Solution: Training in the use and methods of trademark and licensing and providing assistance in filing applications.

Result: Ethiopian coffee growers now have more control of overseas distribution chains and export prices of their products. The increased export income flows back down the supply chain to the farmers and other coffee workers helping create a viable economic livelihood and producing a widespread poverty alleviating effect. PIIPA also provided pro bono IP services to defend the growers against an attempt by Starbucks to trademark Ethiopian coffee varieties in the U.S. This led to an agreement between the two parties that recognized Ethiopian ownership of the coffee names. Through these efforts the deep gap between the profits of coffee farmers and the profits of international coffee companies are being bridged".
This Afro-IP contributor would like to know a little more about this case study, not least because over the past couple of years he has rather received the impression that quite a few people are claiming credit for "solving the Ethiopian coffee problem". He notices that there's no mention of PIIPA's involvement in "Ethiopia and the Starbucks Story", published in the WIPO Magazine here or in earlier Afro-IP posts, including "New branding scheme for Ethiopian coffees" here.  Also, take a look at the bright and cheerful logos at the top of this post: this blogger is a regular purchaser of Yirgacheffe beans from Starbucks, but has yet to see either the Ethiopian Fine Coffee logo or the Yirgacheffee logo on any packet.  Are the Ethiopians deriving income from licensing logos that aren't even being used?

What Afro Leo would like to know is (i) whether anyone is undertaking a reliable and objective history of the Ethiopian coffee brand licensing programme(s) which gives due credit to all participants in it and (ii) whether the income from the licensing scheme is trickling down to the poverty-stricken coffee producers in any meaningful manner.  Can readers please advise?
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Darren Olivier

Faking it

Afrique en Ligne carries a piece all too common about the dangers of counterfeits in East Africa. This article cites a call of life imprisonment! for serial offenders and unwittingly lead Afro Leo to an innovative South African warning site about the dangers of using counterfeit software.

"Noting that the current regime [in the EAC] was limited to only seizure and destruction of fake goods, The Citizen [a private daily] suggested that new laws should include 'tougher penalties such as life sentence for repeat offenders, as they engage in deals that sabotage the economy denying governments tax revenue'.Afrique en Ligne

Google Adsense (by placing an adjacent ad relating to the content of the Afrique en Ligne article) was responsible for taking me to dontfakeit and a compelling experience about counterfeit software. Try it. The site is registered to Intergr8IT - Penquin International.

A similar warning was recently contained in the broadsheet version of the The Herald. The story goes that a family man bought a cheap "buy 1 get 4" DVD roadside special for his young son only to find out later (after his kid had apparently watched the DVDs) that the special extras were in fact porn. One suspects - regret for the dad and depending on the kid, endless questions, disgust or complaints about quality.

For Meg Ryan and the difficulty in spotting fakes click here.
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Monday, 15 November 2010


Nigeria: will higher office fees deliver better services?

Nigeria's federal minister of commerce, Jubril Martins Kuye, approved an upward review of the official fees for trade marks, patents and designs. This increase became effective on 1 September 2010 and affects all the services offered by the respective registries. The range of increase runs from 100% to anything up to 400%, as well as imposing fees for certain services that were formerly free.

Filing figures are being monitored closely to ascertain whether the increase in fees will affect the number of filings in the long term. Meanwhile, the registrar is being pressed to improve the level of service offered -- which may be facilitated by an anticipated but still not imminent move to more spacious premises.

Source: note by Adeola Olumeyan (Jackson Etti & Edu, Lagos) in World Trademark Review
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Friday, 12 November 2010

Darren Olivier

RSA's TIA - the resurrector of innovation

South Africa's new Technology Innovation Agency (TIA), which has been formed to support the commercialisation of local research and development (R&D), was formally launched at the end of October with a budget of R410million according to this report in Creamer Media's Engineering News. The news is hot off the heels of the enactment of RSA's legislation designed to commercialise innovation from public funding.

TIA chairperson Dr Mamphela Ramphele said that the agency would strive to turn "the valley of death" between research and product commercialisation into one of "resurrection"

The legislation and TIA have high ideals but borrowing from Tennyson account of the famous doomed charge does sound ominous:

 Half a league, half a league,

  Half a league onward,

All in the valley of Death

  Rode the six hundred.

'Forward, the Light Brigade!

Charge for the guns' he said:

Into the valley of Death

  Rode the six hundred....

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Wednesday, 10 November 2010

Aurelia J. Schultz

Expensive Textbooks, High Levels of Infringement and High Levels of Respect for Copyright All Common in Africa

Did you know that out of consumers around the world, African consumers are the most concerned about respecting people’s copyrights?  They are also the most likely to view copyright infringement as a moral issue.  Such are some of the results of a two-year long study conducted by Consumers International and reported on in the book Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010.

Consumers International conducted a multi-stage global survey investigating the intersection between copyright law and consumers’ access to knowledge.  Overall findings of the survey show that consumers prefer to purchase legitimate copyrighted goods rather than infringing copies.  However, this preference requires a perceived higher quality of legitimate goods and an affordable price.

In addition to this global survey, the book also includes reports on national advocacy in six countries, including four African countries: Cameroon, Nigeria, South Africa and Zambia.

Cameroon’s Expensive Texts

Réseau Associatif des Consommateurs de l’Énergie (RACE), a Cameroonian organization, reported on the ever-increasing cost of textbooks in Cameroon.  RACE’s goal is to make textbooks available to all students, both in terms of affordability and physical accessibility.

To begin their project, RACE first engaged in 1,000 face to face interviews across the country of Cameroon.  This helped them understand the reasons behind the lack of access to textbooks.  Yearly changes in required texts, an excessive number of middle men and widespread infringement all contribute to high prices.

For every 5000 books legally manufactured, 30,000 counterfeited books from neighbouring countries are found on the market.  The publishing house now increases prices to make up for the losses of unsold books, and counterfeiters take advantage of the increased prices to make more money.

Through campaigning and networking, RACE has been able to institute a pilot not-for-profit book distribution program and has generated discussion in favor of institution government regulations and subsidies that would make textbooks free for primary school students.

Nigeria Battling to Open Education

Consumer Awareness Organisation Nigeria also investigated the lack of access to educational resources.  Goals for this project included instigating reform of the Nigerian Copyright Act, removing tariffs and duties on educational resources, and establish and promote open source learning materials in the country.

By pricing books, journals and other educational materials beyond the reach of the potential users (pupils, students, teachers, schools administrators and the wider public) these persons are denied knowledge by the copyright owners.

The group as initiated conversations with the public, both in standard and pidgin English, to discover the most common barriers to accessing knowledge.  It has also identified provisions of the Nigerian Copyright Act that should be amended in order to facilitate access to knowledge.  Most prominently, the group conducted a large workshop, bringing together different stakeholders to discuss how access to knowledge could be increased.

South Africans Don’t Care to Remember 1978

Run by the African Commons Project and the National Consumer Forum, this project ran under the catchy slogan “What were you doing in 1978?”  Reminding South Africans of both the age of their copyright act and how much has changed in the past 32 years.

The campaign was run through the internet, via email, Facebook and an online petition.  Unfortunately, the campaign seems to have had a low impact.  Less than 20% of recipients opened the email and only 6 people submitted entries for the Facebook competition.   The petition for review of the copyright act received a little over a hundred signatures.

The lack of understanding around intellectual property on the local level could have been an inhibiting factor where people did not fully understand what the issues were.

Zambia’s High Tariffs

The Zambian Consumer Association (ZACA) also looked at the familiar issue of expensive, inaccessible textbooks.  The goal of this project was to reduce taxes on textbooks, particularly the 20% import tax, with the incorporated goal of raising awareness about the issue.  Unions of students from 14 higher education institutions around the country organized activities for meeting these goals.

The students conducted eight live radio phone-in shows and two television interviews to discuss the issues.  They also wrote letters to members of parliament urging for the removal of the 20% tariff on textbooks, and enlisted the help of highly respected professor, F M Banda, and popular musician, Petersen.


The entire Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010  book is available in for free in pdf format.  If you don’t think your internet connection will allow you to view or download the full 336 page text, ask a friend with higher bandwith to save it onto a disc and send it to you.  Don’t worry, it’s legal.  The book is licensed under a Creative Commons BY-SA license.

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Tuesday, 9 November 2010

Darren Olivier

Africa & ACTA

An "ACTA" that is very effective
Writing for the The New Vision, consultant Peter Yehangane urges the EAC to join ACTA in its fight against counterfeiting in the region in this article here:

"I urge the EAC to consider joining the ACTA and to share knowledge and technical resources in fighting counterfeits and pirated goods. ACTA will not change member state's national laws on counterfeits, trademarks and patents, but seeks a common ground among member states to enforce rules on anti-proliferation of counterfeits."

The article provides a good overall summary of the counterfeiting problem in East Africa, the status of the anti-counterfeiting laws in the region and the development of the ACTA text.

ACTA's purpose has almost been overshadowed by the commentary over its secrecy which has naturally given rise to sceptics. The provisions of ACTA have also raised criticisms in their own right too. You can read more about the criticisms here. Afro Leo is not sure why not one single African country appears to have commented on the negotiations over ACTA especially as counterfeiting on the continent is, in his opinion, Africa's single largest IP challenge.

Peter is correct that East Africa (and for that matter Africa) should take more interest in ACTA but ACTA should also be encouraging more Africa participation. This is because the counterfeiting challenge in Africa is not only an African problem affecting those that live here but a worldwide challenge where counterfeits in Africa affect lives in countries outside Africa - for example, Africa is frequently described as the dumping ground for the world's unwanted goods which means that there is market for counterfeits or infringing overruns and because counterfeit goods are frequently transported via Africa to other parts the world. Furthermore, once ACTA has been agreed it will be encouraged as a template for African legislators and the knee jerk resistance will come from parties who will see it as an attempt by the developed countries to impose their trade conditions on African states.

To clarify Afro Leo is not necessarily advocating active African participation (because it may lead to obligations) but he is encouraging active African debate and the assessment of ACTA on African states. Now that the text of ACTA is less secret that debate  may be possible. Well done Peter on starting it.
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Tuesday, 2 November 2010

Aurelia J. Schultz

Zimbabwe Considering Copyrighting Laws

The Zimbabwean has a detailed article discussing the proposed amendment to the Zimbabwe Copyright and Neighbouring Rights Act (pdf).  The proposed amendment comes from Clause 16 of the General Laws Amendment Bill  (Afro-Leo tried to find a copy of this Bill, but could not find any more recent than 2005).

According to the article, the bill proposes to put the items currently exempted from copyright under Section 10 of the Copyright and Neighbouring Rights Act within the scope of copyright.  Section 10 (6) excludes most government works: official texts of enactments, official texts of Bills [Guess they won’t be any easier to find anytime soon], official records of judicial proceedings and decisions, items published in the Gazette, things published in the Trade Marks Journal [Wonder how that will affect TM infringement cases if it’s difficult to find out what’s in the Journal], and official texts of international agreements [that one will be super hard to enforce since the agreements are in the public domain so many other places]. 

The Zimbabwean article explains how this proposal might violate the Zimbabwe Constitution by violating the freedom of expression granted in Section 20.  The article also points out that this proposal is a bad idea because that people must be able to know what the law is in order to follow the law.  Somehow, when reading the article, one gets the idea that’s the point of the amendment.

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