Friday, 26 February 2010
Thursday, 25 February 2010
"On May 3, 2010, the World Intellectual Property Organization (WIPO), African Regional Intellectual Property Organization (ARIPO) and Africa University (AU) will launch the 3rd edition of the Masters Degree in intellectual property (MIP) program at Africa University, Mutare, Zimbabwe."
Monday, 22 February 2010
“Buy any 2 salads and receive a 750ml bottle of ‘the beachhouse’!” Adjacent to this offer, a price of “R135.00” as well as pictures of a salmon salad, smoked chicken salad and a bottle of ‘the beachhouse’ wine is displayed.
It was submitted by the complainant that the advertisement suggests that the bottle of wine is free and not for the account of the consumer. It was submitted further that the bottle of wine was not, in fact, free but rather it was supplied marginally cheaper than the regular price.
The relevant clauses of Section II of the Code of Advertising Practice considered were 4.2.1 (dealing with misleading claims), 4.4 (dealing with the use of the word “free”) and 19 (dealing with pricing policy).
Clause 4.4 regulates the use of the word “free” in advertisements and was immediately dismissed as not applicable in this case as the word “free” does not feature in the advertisement. Whether the advertisement implies or suggests that the product offered is without cost to the consumer, despite the absence of the word “free”, is discussed with reference to Clause 4.2.1 which prohibits any statement or visual representation which, directly or indirectly, is likely to mislead the consumer. The Directorate noted that the use of the term “buy” in respect of the salads and “receive” in respect of the wine could lead consumers to believe that if they were to purchase two salads that they would receive the bottle of wine and suggests that the wine would be free. However, the advertisement in question displayed a total price of R135.00 for the “package” of the two salads and the bottle of wine. All consumers who made use of this promotion would have paid R135.00 in total for two salads and the bottle of wine. The Directorate considered this to be made clear by the advertisement and found the advertisement not to be in breach of Clause 4.2.1.
The advertisement was, further, found not to fall foul of Clause 19 of the Code, the relevant part of which requires that the selling price at which goods will be sold against immediate payment must be quoted in full and must include all necessary and incidental costs without which the goods cannot or may not be bought. It was common cause that the consumer could purchase any two salads and a bottle of ‘the beachhouse’ wine for R135.00 and that no additional costs were payable. The advertisement was not in breach of the pricing policy and the complaint was dismissed.
Sunday, 21 February 2010
At grave risk of oversimplifying the facts (described in the proceedings as a “procedural quagmire”), Glaxo sought to have Cipla’s application for revocation of patent 90/7136 struck out on the basis that Cipla had abused the court’s process. Cipla had earlier filed a similar application for revocation of the patent, but, in the face of a procedural challenge, had elected to withdraw the earlier revocation application and start again with a fresh application. Glaxo sought to have the new revocation application struck out, and to force Cipla to continue with the procedurally-challenged earlier revocation application. In this regard, the court said:
Thursday, 18 February 2010
"The North Gauteng High Court handed down judgment in the case of Oilwell (Pty) Limited v Protec International Limited and Others (case no. 44835/08) on 17 February 2010, ruling that a trade mark assignment agreement entered into without prior Treasury approval, does not constitute a contravention of Regulation 10(1)(c) of the Exchange Control Regulations, 1961, and that a contravention of Regulation 10(1)(c) would, in any event, not render such an assignment agreement null and void, ab initio."
Chris Job and Werina Griffiths summarise the news here. Some Afro-IP background here.
More comment to follow.
- Exchange control reforms are proposed: the proposed reforms do not appear to impact the continuing effect of this form of protectionism on the international technology transfer market and IP licensing requirements (which include intra group brand licenses) where RSA residents are involved. There is some talk of promoting RSA as a gateway to Africa and for dropping some of the controls to encourage this development.
- Tax on a pack of cigarettes to increase by R1.24 from R7.70 to R8.94. Beer to increase by 6c a can and wine by 16c a litre. The impact is likely to squeeze profits on these goods. Branding may become even more important to retain customers, and those with smaller ad spends are likely to suffer. Counterfeit goods may increase to meet the addictive demands associated with these products.
- Congestion, pollution and landfill taxes are considered. The need for alternative solutions is likely to continue spur innovation in this area. Afro Leo thinks that it is going to be even more difficult for any trade mark lawyer to secure rights over the colour "green".
- Real public spending growth limited to +- 2% per annum, lower than preceding three years. Meanwhile the public sector wage bill almost doubled in five years. Afro Leo hopes that CIPRO is/has been in the front of the queue for funding and wage increases.
- Economic growth of 2.3% projected for 2010, increasing to 3.6% by 2012. Modest by recent RSA standards but may positively impact on local IP filings which declined (especially trade marks) remarkably in 2009
- 2010 FIFA World Cup to contribute 0.5% of GDP in 2010. Perhaps the compensation for the vice like control FIFA has over the tournament and all advertising around it. It is worth considering too that "so far, government has spent R33bn preparing for the soccer games."
- R8.4bn for fighting HIV/Aids with antiretroviral therapy. This spending is likely to spur the ongoing discussion about costs and the economic role of IP in fostering innovation and/or restricting access to ARVs and related infrastructure.
Wednesday, 17 February 2010
The gene known as SbMATE is not only useful in sorghum but may also be used in other crops to produce crops that are tolerant to aluminium. Aluminium is commonly found in soils and is toxic to the roots of many food crops, including wheat, rice, and maize. Aluminium toxicity stunts the growth of crop plant roots and inhibits their uptake of key minerals.
It is not clear which court or courts Tanzania is likely to file the matter; in so far as the USPTO website reveals that US patent number 7582809 was granted on 1st September 2009 to the Secretary of Agriculture (Washington, DC) and Brazilian Agricultural Research Corporation (Embrapa). It would seem that the patent application for the same invention is pending in Australia and EPO, and possibly in a host of other countries designated in a PCT application filed on 9th May 2008 relating to aluminium tolerant sorghum gene.
• The publication of trade marks, patents and designs will henceforth be distributed on CDs, without hard copies. This is a lot swifter than the traditional technology of the printing press and will result in a reduction in the amount of time consumed in completing official registration procedures.Source: INTA Bulletin, vol.65, no.3, 1 February 2010.
• Official fees for renewal certificates of trade mark registration are to be paid together with the renewal application fees and not, as previously, following issuance of the certificate.
Tuesday, 16 February 2010
Afro-IP is delighted to announce that over the next three months guest blogger Sara Spiro will be writing a Monday column dedicated to the ASA. In addition she will be collating any and all comments or proposals for the amendment of the ASA code here - but please before 25 February if you are proposing amendments, as the deadline for submissions to the ASA ends on 26 February.
Monday, 15 February 2010
“Respondent objects to this procedure because it is by-passing the provisions of Section 51(1), which specifically provide a very special procedure to obtain an amendment. This procedure differs radically from the normal Court proceedings. The regulations prescribe a procedure that actually puts the objector (Respondent in casu) in the position of a Plaintiff having to file full particulars of claim in respect of its objection. The Applicant then becomes the "Defendant' having to plead to the particulars of claim. The objector gets another bite at the cherry by way of replication. The objection is therefore based on the fact that the Applicant is in effect now bringing an amendment "on an urgent or expedited" manner where no such urgent or expedited procedure is provided for in the Act or the Regulations. He is also prejudiced, in submission, in not being able to "reply" to the relief sought (i.e. its objection). The further objection is that this procedure cannot be followed because one cannot get any relief on an invalid patent. Therefore until the patent is amended, there can be no question of infringement. On that basis it is submitted that the interdict procedure was totally wrong (i.e. "abuse" of the process, but not in a pejorative sense). “
In Lundbeck Southwood had found that there is "nothing in the ordinary sense of the word "pending" that prohibits this procedure". He decided that once a procedure is issued it is pending, regardless of when it is to be finalised or comes before Court. Claassen was being asked by the Respondents to find that Southwood J was "clearly wrong" or that he was "convinced' that he was wrong, but he could not - see “para 8”. By agreement between the parties then, Claassen allowed the amendment and dismissed the interdict application.
Thursday, 11 February 2010
You can take Jeremy Clarkson's advice on how to avoid an ambush or you can watch this:
ABNDigital talk to Carni van der Walt from Posterscope, Michael Murphy, Director, Bowman Gilfillan and Nunu Ntshinglla, group CEO, Oglivy South Africa about problems faced by advertisers ahead of the upcoming World Cup post Metcash and the Dean v Kelbrick banter on this blog.
Carni explains the difficulties faced by middlemen selling advertising space in sites that risk being proclaimed "controlled access sites" (ed - with just over 100 days to go the indecision by municipalities does make life extremely difficult) . She also explains one way of getting around the Metcash decision. Nunu (ed -whose views were probably softened because her agency represents both sponsors and non sponsors) explains the virtues of using tourist destinations for advertising, and of being creative. Michael (no stranger to these issues - his client took on SAB in the "laugh it off" matter) puts it bluntly "read the by-laws and make sure you understand what they mean".
But don't underestimate these municipalities - just yesterday Debbie Marriott" showed Afro Leo accepted trade mark applications for the "shape and configuration!" of the Durban stadium covering a range of classes claimed in the name of the local municipality. Are these really trade marks? You must be kidding me.
Tuesday, 9 February 2010
"Legislation on industrial property in Mauritius is undergoing review. The government's ambition is to enhance a legal environment that keeps abreast with international, constantly evolving trends, thus making Mauritius a platform with a sound legal framework to protect the IP rights of internationally well-known brands".
Monday, 8 February 2010
The Attorney General of Uganda has finally published the Copyright & Neighboring rights regulations 2010 that many players in the media industry have been looking forward to; or loathing depending on who you are! The regulations are intended to fully operationalize the Copyright Act of 2006.
A few highlights in the regulations include the following:
* Procedure for application for copyright. Note that registration is not mandatory although its of tremendous value in proceedings to enforce Copyright.
*Registration of assignments and licenses.
*Extensive procedures for registration of collecting societies.
*Provision for copyright inspectors with powers to seize allegedly infringing material.
*the regulations provide for a maximum sentence of 6 months imprisonment for those found guilty of copyright offences or fines of up to the equivalent of US$200 or both, neither of which seems deterrent enough to stem pervasive infringement of copyrighted works.
The other key thing to note is the publication period of 60 days before grant of a Copyright certificate, similar to that under the Trademark Regulations.
The question is, will the Registrar cope with the huge number of expected registrations in the weeks to come? The Attorney General deserves a pat on the back, and a request for funding to automate registration. This would definitely minimize backlog and streamline the registration system.
Friday, 5 February 2010
Carl van Rooyen of Spoor and Fisher has given a useful analysis of possible rights to both the instrument and the name, and concludes that the word describes a type of allegedly ‘musical’ instrument and is consequently unregistrable because it is generic. The full argument can be read here:
Thursday, 4 February 2010
Tuesday, 2 February 2010
The Nigerian national papers are abuzz with the news. The “King of Pirates”, Tony Onwujewekwe, has been arraigned before the Federal High Court in Lagos. It’s such big news that even the BBC has reported on it (audio story).
Tony Onwujewekwe is a business man active in Alaba Market. Alaba Market is one of the largest markets on the West African coast. People travel from all across Nigeria and from many neighboring countries to shop in the large Lagos market. Throughout the past decade, Alaba has been a thorn in the side of the Nigerian Copyright Commission (NCC), the Nollywood industry and the Nigerian music industry. The market is notorious for its pirated goods. Shoppers can find cheap video discs of even the most newly released Nigerian and international films. Music cds go for USD $.50 to $1. Alaba isn’t only popular because of its low prices, but also because it is often the only place to find some of the top entertainment products. (See Nollyzone for an account of attempt to build an alternative to Alaba.)
The NCC has conducted a number of raids on Alaba market over the years, some of them resulting in severe injuries to police officers when the market sellers fought back. By 2008, the NCC had negotiated a memorandum of understanding with Alaba sellers who dealt in legitimate goods. This lead to attacks by pirate sellers against the legitimate sellers. Fear rose and piracy in Alaba did not abate.
Arrest and Prosecution of Tony Onwujewekwe
Last November, the NCC again went to Alaba. This time, they arrested the man they believe to be the king pin in Alaba’s piracy business, the so called King of Pirates. (World Premier Entertainment has an account of the proceedings leading up to the arrest on its blog.) The arraignment was yesterday. This will be an interesting case to watch going forward.
According to The Punch, Tony Onwujewekwe is charged with three counts of violating the Nigerian Copyright Act. One count under Section 20(1)(a) – criminal liability for making for infringing copies of works for sale or causing them to be made for sale -, one count under 20(2)(a) – selling or leasing infringing copies of works - and one count under 20(2)(c) – possessing infringing copies of works for non-personal use.
For those who are interested, the statute requires Mr. Onwujewekwe to prove he did not know or had no reason to know the copies were infringing, otherwise he is guilty under Section 20. The punishment listed in the statute for violations of Section 20(2) is a fine of N100 for each infringing copy, up to two years in prison, or both. Violations of Section 20(1) are punishable by a fine of up to N1,000 for each infringing copy, up to five years in prison, or both.
Update 10, Feb. 2010 The Sun has reported that Mr. Onwujewekwe is to remain in custody at least until his bail hearing on 18th February. The trial is set for 23 February.
Key elements to note that try to mediate between those against this law, and those for it are as follows;
- Creating clarity on the definition of a Counterfeit. This version of the bill distances itself from the more expansive definition that includes patents and restricts itself to infringement of copyright and trademark rights. In particular, Counterfeiting means the "manufacturing, producing, packaging, re-packaging, labeling or making of any goods by which those protected goods are imitated in such manner and to such a degree that those other goods are identical to protected goods"
- on the contentious issue of medicines, counterfeiting includes the deliberate and fraudulent mislabeling of medicines with respect to identity or source whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging.
- Copies of articles protected by copyright or trademark law in the importing country are also deemed to be counterfeit if the permission of the rights holder is not procured. This clearly gives an option to those who wish to import generic copies to apply under the respective legislation for compulsory licenses.
- The bill gives the National Drug Authority express jurisdiction to handle matters where medicines are involved. This section allays the fears of those who felt that the Uganda National Bureau of Standards has insufficient competences to deal with or distinguish counterfeits from genuine products.
Overall, i must say that the value and urgency of passing this legislation after careful scrutiny by all stakeholders cant be overstated. The mindset that allowing products, irrespective of quality or standards will deal with our needs as a country is misplaced. What needs to happen is for the Government, private sector and donor community to come together and provide specific incentives for innovation in sectors such as drug discovery, development and manufacturing.
In the meantime, parties concerned about the excesses of the application of Intellectual property rights should put to use Compulsory licensing provisions under the law, which to the best of my knowledge have never been invoked. By so doing, the delicate balance between public and private rights in the use of Uganda's Intellectual property system will be put to test without severely undermining the attribution of creativity and ownership that form the basis for innovation.