Monday, 27 February 2012

A to Z of African official IP websites no.37: Niger

The 37th in the series of A to Z visits by Afro-IP's Kingsley Egbuonu to national IP office websites reaches the landlocked West African republic of Niger -- one of the poorest countries in the world, beset by major problems of drought and desertification. This is what Kingsley found:
"Overview

Niger is a Contracting Party to several intellectual property treaties including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. It is also an OAPI member.

Copyright Office

• The Niger Copyright Office (BNDA) Ministry of Youth, Sport and Culture is the competent office responsible for copyright and related rights in Niger. 
• The website for this office is www.bnda.ne.wipo.net

Industrial Property Office

• The Directorate of Industrial Development (Ministry of Commerce and the Private Sector) is the competent office responsible for the administration of intellectual property rights in Niger. 
• This office has no website.

Social Media Presence

None found.

Intellectual Property update in Niger

None found.

Conclusion

The only website that exists requires a great deal of attention in order to serve its purpose and be helpful to users. In addition, Afro-IP would have preferred the main IP office to have one.

It is public knowledge that Niger has humanitarian crises such as food and water insecurity to contend with (see here and here), therefore it is not surprising that IP is less of a priority for its government – if it ever was. Nevertheless, considering its rich cultural heritage, tradition and a population largely dependent on agriculture (see here), IPRs and/or sui generis rights - if designed and coordinated effectively in the national interest - could play a vital role in Niger.

As reported here by Afro-IP, Niger benefited from WIPO’s music rights initiative across West Africa and, with this, it is hoped that Niger can see how IP can aid socio-economic development".
Kingsley tweets as @IPin Africa

Tuesday, 21 February 2012

Africa IP Summit agenda debate continues

The controversy (see here and here) over the agenda for the Africa IP Summit continues, now threatening to postpone the event altogether. This is the view of the organisers CLDP who took the time to speak with Afro Leo last week.

Although CLDP felt that the original agenda was balanced, they explained that they were attempting to appease the detractors by including additional tracks. They were cautiously optimistic at the time but one week on, little progress seems to have been made.

Several sources have suggested that Afro Leo seek answers from the South African Government and in particular the DTI. However, telephone calls and emails to the DTI by Afro Leo last week went unanswered.

The view of readers at the time of this post, according to the poll alongside which completes today, is that 59% believe the agenda stacks up or could do with only minor improvements, 41% believe that significant changes need to be made with only 1 voter recording the view that the agenda is wholly inadequate. Please contribute your thoughts by voting here today - they are important.

CLDP confirmed that numbers for the planned Summit were over 300 and counting.

One view which has not been heard (simply because this blogger has been busy collecting reader thoughts on the topic) is that of fellow Afro-IP blogger Jeremy. Jeremy is as passionate about IP in Africa as he is dispassionate over its politics - with some luck this request will now stir a post from him.

Monday, 20 February 2012

A to Z of African official IP websites no.36: Namibia

Having dispensed with the Ms, Afro-IP's online investigator Kingsley Egbuonu travels to the bottom left-hand side of Africa to the first of the continent's three Ns -- Namibia -- in his 36th review of official IP websites offered by Africa's nations.  This is what he found:
"Overview

Namibia is a Contracting Party to several intellectual property treaties including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. It is also a member of ARIPO.

Copyright Office

• The Ministry of Information and Broadcasting (Copyright Services) is the competent office responsible for copyright and related rights in Namibia. 
• The website for this Ministry is www.mict.gov.na

Industrial Property Office

• The Ministry of Trade and Industry, Industry and Internal Trade is the competent office responsible for the administration of intellectual property rights in Namibia.
• The website for this Ministry is www.mti.gov.na

Social Media Presence

None found.

Intellectual Property update in Namibia

• The Namibia Industrial Property (NIP) Bill which aims to repeal and replace various IP laws -- reported here by Afro-IP -- is yet to be enacted. However, the Namibian Sun reports that the Bill has passed through the National Council and awaits Presidential assent.

Conclusion

Afro-IP applauds Namibia’s effort towards legal certainty in its IP regime as well as ensuring that it meets international standards.

We hope that the passage of the NIP Bill into law can spur the relevant Ministries into action to bring its IP offices closer to its national and international users with dedicated websites".
Kingsley tweets as @IPinAfrica

Wednesday, 15 February 2012

WIPO – 20th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

RSA IP expat Andre Myburgh, now based in Switzerland at the firm of Lenz Caemmerer, is attending WIPO’s Session on IP and Genetic Resources where an African Group is prominent. His report back Afro-IP:

This week sees the start of the latest round of discussions in WIPO around intellectual property and genetic resources, traditional knowledge and folklore in Geneva, with an eight day meeting of the Intergovernmental Committee devoted to genetic resources.  These discussions follow the coming into force of the Nagoya Protocol on genetic resources in the past year.  The Nagoya Protocol is a treaty under the Convention on Biological Diversity and is focussed on the conditions for access to genetic resources  The WIPO discussions deal with the intellectual property law aspects of this access.

Documents submitted in advance of the meeting indicate a divergence of views as to what is the best way to protect access to genetic resources controlled and used by indigenous communities, amongst others by researchers and inventors.  The European Union supports a mandatory requirement for patent applications to disclose the country of origin or source of genetic resources, as well as possibly a disclosure of associated traditional knowledge.  The African Group, which includes South Africa, goes further and proposes, in addition to disclosure, that a patent applicant for an invention where traditional knowledge is involved must first have obtained the prior informed consent and a benefit sharing agreement from the community holding the traditional knowledge as conditions for the issue of the patent.  South Africa already has such legislation, in the form of the bioprospecting provisions of the Biodiversity Act, 2004, and the Patents Act, 1978, as amended in 2005.

Tom Suchanandan of the South African Department of Science and Technology [ed- and member of the Afro-IP linkedin Group] has been appointed as one of the meeting’s facilitators to guide the delegates toward producing a single text for submission to WIPO’s General Assembly.

The session on intellectual property and genetic resources will be followed by further sessions on traditional knowledge in April and traditional expressions of culture and folklore in July, with a view to putting a text-based proposal to the General Assembly in October, which is hoped to be followed by the calling of a diplomatic conference."

 2012 important dates for  the IGC are listed here according to the WIPO website.

Thank you for the update, Andre!

African IP Summit short a development dimension?

Professor Mark Schultz, Southern Illinois University School of Law, has taken a stand on Afro-IP against the African IP Summit critics. Mark believes that the outrage is overstated, and that calls to postpone the conference reflect an ideologically rigid, anti-IP viewpoint. His comment is copied below.

You can make your own views known by commenting below this post or voting on the poll on the right hand side of the blog. The Africa IP forum idea is too important not to hear all views.


"I disagree with the criticism of the IP Summit for a variety of reasons, but I will stick to two essential points. As I jump in, I’ll note that I don’t have a “dog in this fight,” as they say in the part of the U.S. where I currently live. I'm not an organizer, I’m not on anybody’s payroll other than the law school where I teach, and I’m not invited to speak at the conference (although I’d love to visit Cape Town).



First, the criticism does not accurately reflect the entire substance of the Development Agenda. The Development Agenda was the result of compromise and consensus, and thus embodies a number of viewpoints as to how WIPO should address development issues. I think that the complaints of the portion of civil society represented by the KEI-led coalition focus on the parts of the Development Agenda that this coalition advocated and preferred throughout the talks. The views of this coalition do not reflect the entirety of Development Agenda.


Compare the preliminary agenda for the summit obtained by KEI with the Development Agenda itself. Since it’s not my blog, I will provide just a few examples.


Cluster A of the Development Agenda addresses Technical Assistance and Capacity Building. Cluster A is important; it accounts for 14 of the 45 recommendations. As an observer at several of the meetings where the Development Agenda was developed, I recall that technical assistance was quite important to a large portion of the delegates. It was my perception that many of the members of the African Group had a genuine interest in getting help to improve their national IP institutions and in using IP to promote local industries, rather than only to protect the IP of their wealthy trading partners. In my opinion, at key junctures in the talks, it was the African Group’s desire to secure technical assistance that kept talks going, serving as a bridge between more intransigent parties to the talks.


In any event, here are a few of the recommendations of the Development Agenda, matched to items from the conference:


Development Agenda Item Number 3: Increase human and financial allocation for technical assistance programs in WIPO for promoting a, inter alia, development-oriented intellectual property culture, with an emphasis on introducing intellectual property at different academic levels and on generating greater public awareness on intellectual property.” This recommendation embodies compromise, promoting both IP awareness and a “development-oriented intellectual property culture.”


Many conference agenda items follow this recommendation, promoting both IP awareness and a development orientation. Here are a couple of representative ones:


• Using IP to Promote African Economic Development, Production and Trade


• A Discussion on IP Awareness in Africa and Possible Methods for Increasing IP Awareness in the Continent


Development Agenda Item Number 10: “To assist Member States to develop and improve national intellectual property institutional capacity through further development of infrastructure and other facilities with a view to making national intellectual property institutions more efficient and promote fair balance between intellectual property protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with intellectual property.” Once again, a bit of compromise—help with institution building, while ensuring a “fair balance” between IP protection and the public interest.


These conference agenda items seem relevant:
• Building African IP Administration Office Infrastructure and Increasing Capacity to Participate in the Knowledge Economy


• Discussion on Various Approaches to IPR Protection by National Agencies, Regional Cooperatives, and the Private Sector


• A Dialog on the Successes and Challenges Faced by Enforcement Officials in Investigating and Prosecuting IP Crime in the Region


Will these agenda items promote a “fair balance” between IP protection and the public interest. I suppose that depends on a few things. First, are IP protection and the public interest always opposed, or sometimes one and the same? I hope that the answer is perceived to be at least arguable. Second, can the Africans helping to organize, appearing on the various panels, and attending be trusted to look out for their own interests and the public interest? I know that my African friends are all quite capable of doing so, even if the panels “fail” to include North American or European NGO representatives to look out for African interests.


Development Agenda Item Number 11. “To assist Member States to strengthen national capacity for protection of domestic creations, innovations and inventions and to support development of national scientific and technological infrastructure, where appropriate, in accordance with WIPO’s mandate.”


The following conference agenda items are among those that appear to promote this goal of developing domestic creativity and innovation:


• Using IP to Promote African Economic Development, Production and Trade


• The Juncture of Sports, Trademarks, Broadcasting and Merchandising in Africa


• Why CMOs are Important and How WIPO and International CMOs Can Help African CMOs


• Exchange of Experiences Concerning the Protection and Monetization of Traditional Knowledge and Traditional Cultural Expressions in Africa


• Increasing African Competitiveness Through Innovation Policies, Franchising, Licensing, and Commercialization of R&D


• Discussion on the Economic Contribution of Copyright-Based Industries in Africa


• A Dialogue on the Culture and Business Models of Film in Africa


• Exchange of Experiences in Trademark and Geographical Indication Protection and Commercialization


• How Collective Bargaining Ensures that Creators/Performers Earn a Fair Livelihood and Contributes to a Solid, Vibrant Industry


• A Primer on Music Commercialization


To my view, the goal of promoting domestic industries is one of the most worthy and important development-related IP goals. Despite over a decade of criticism, TRIPS is not going away. I believe that all would be better off if IP were harnessed to support the vast and rich creative and innovative capacity of the people of developing countries in Africa and elsewhere. If that is done, we can move away from endless debates about IP as a trade issue and toward a more productive use of IP as a tool of economic empowerment.


Beyond these examples, I want to make a second, larger point. Inventions, creative works, and other fruits of the mind are not solely the product of the Global North. The human mind is the one resource we share in common, and everybody, everywhere has the capacity to create and innovate. Thus, the people of developing countries should not be treated as mere consumers of the products, innovation, and creativity of wealthy countries. IP is not an obstacle to poor people getting what they need from rich people; it can instead be the means by which the poor gain the things they need to flourish by protecting the products of their intellectual labor.


I wish that these assertions represented an attack on strawmen, but they do not. All throughout the Development Agenda discussions, the helplessness of developing countries was the implicit and sometimes explicit premise articulated by IP skeptics. It angered me then while I was sitting in the WIPO assembly hall in Geneva, and still angers me. IP isn’t something that helps only wealthy people. It’s something that could offer empowerment and security to the filmmakers of Nollywood and their aspiring cousins in Sollywood (RSA) and Hillywood (Rwanda); it could keep talented researchers at home and support the development of domestic industries.


In these criticisms of the IP Summit, I see the same, disappointing viewpoints. Critics assume that discussions of IP awareness and enforcement and promotion of IP industries are not in the interest of developing countries. As I said, implicit in that critique is the premise that people in developing countries are not producing things that would benefit from IP protection. They see IP as the tool of the wealthy because they see the wealthy as the producers of creative and innovative works.


However, I know that others disagree. While I’m a big fan of Development Agenda item number 11 ("strengthen national capacity for protection of domestic creations, innovations and inventions"), it’s quite clear that to some, Recommendation 14 dealing with TRIPS Flexibilities and Recommendation 16 dealing with the Public Domain are the heart and soul of the Development Agenda.


I think that the better view is that the Development Agenda embodies numerous perspectives. It was driven both by skepticism toward unrelenting, uncritical promotion of IP and an appreciation for how IP can greatly promote development when applied effectively.


Thus, I contend that a conference that looks at how IP can help Africans is not out of line with the Development Agenda. First, it embodies at least a substantial part of the motivation and substance of the Development Agenda as enacted (no matter how skeptical its original proponents may have been of IP). Second, I think that more trust ought to be placed in the African co-organizers and participants to look out for their own interests—that is surely in keeping with the Development Agenda’s emphasis on demand-driven technical assistance.


Could the conference be more balanced? In fairness, I can see an argument for inclusion of discussion about some of disadvantages of IP or discussion of business models based on innovative, less restrictive use of IP, such as Creative Commons.


With that said, I think that the outrage is overstated, and that calls to scrap it reflect an ideologically rigid, anti-IP viewpoint. While this conference may give short shrift to some people’s favorite parts of the Development Agenda, it certainly does not completely contradict or undermine it."

Afro Leo is grateful to Mark for this contribution.

Tuesday, 14 February 2012

Africa IP Summit short a Development Dimension?

The Africa IP Summit - what is it?

In short: "The first-ever, continent-wide Africa Intellectual Property Forum: Intellectual Property, Regional Integration and Economic Growth in Africa!" according to the

Commmericial Law Development Program (CLDP) of the Office of General Counsel United States Department of Commerce.

Some meat: "[a] ministerial level Forum will focus on the Dynamic Role of Intellectual Property Protection and Enforcement in Promoting Knowledge-Based Economies Through Innovation, Trade and Investment. In a truly international effort, the governments of the France, Japan, South Africa, and the United States, and the World Intellectual Property Organization (WIPO), in collaboration with the African Intellectual Property Organization (OAPI), the African Regional Intellectual Property Organization (ARIPO), and the international private sector, will bring together 600-800 public officials and private IP stakeholders to discuss the integral and critical role of IP in African economic growth through the incentivizing of creation, innovation, trade, and investment."

Sounds really good (I mean really really good- Africa needs IP attention) so far so what is all the fuss about? According to the critics (100 NGOs) and a number of others, some of whom have written in to Afro-IP:

In short: the April 2012 agenda is lacking a Development Dimension

Some meat: here is the letter addressed to WIPO with signatures of 100 NGOs summarised as follows:

* there is a conflict of interest created by pro TRIPS plus agenda/standards countries - US, France and Japan - who support the controversial ACTA and EPAs to the detriment of developing countries, and the involvement of private sector sponsorship "who have a strong stake in IP enforcement."
* important development issues such as flexibility eg compulsory licensing; access to medicines and access to knowledge appear to be disregarded.
* The agenda is too heavily focussed on anti-counterfeit legislation in dealing with counterfeit medicine (which apparently is not in WIPO's mandate).
* Lack of transparency and information.
* No guarantee of participation at the event, even if you register.

The call is for a postponement of the meeting to address the criticisms.

Some more meat: more comment on the criticism is available here, here and here.

Afro Leo has a call scheduled with the conference organisers tomorrow evening GMT and expects to report on developments after that.



Nigeria: Production Company Sues Virgin Atlantic Airlines for Copyright Infringement

Courtesy of Chukwuyere Izuogu (Streamsowers & Köhn):

Yo Virgin...

"The producer of Nollywood movie “Ghetto Dreamz” has instituted a N1 Billion (approximately USD 6,221,340) lawsuit against Virgin Atlantic Airlines Nigeria for copyright infringement. Ope Banwo the CEO of the production company alleges that the full length of the movie was played on over 71 international routes by the defendant company.


Justice Adah of the Federal High Court sitting at the Ikeja Judicial Division, Lagos on the 2nd February 2012 granted an injunctive relief restraining the defendant Virgin Atlantic Airlines Nigeria Ltd whether by themselves, agents, privies, management, directors, pilots, flight crew, etc from infringing or continuing to infringe the copyrights in Ghetto Dreams.


Ghetto Dreams which premiered in April 2011 is a biopic of Dagrin (Oladapo Olaitan Olaonipekun), A Nigerian Hip-Hop Artiste who died on 22nd April 2010 at the tender age of 22 from fatal injuries sustained in car crash.


The case has been adjourned to 12 March 2012."

Chukwuyere, we look forward to further updates - thank you.

Afro Leo says this is not the first time Virgin Nigeria has been accused of copyright infringement. Click here for more

Design registration can't justify TM infringement, rules Nigerian court

In a recent ruling, the Nigerian Federal Court of Appeal has upheld the principle that the mere existence of a design registration is not a justification for the use or infringement of a trade mark belonging to a third party. This case, Alliance International Limited v Saam Kolo International Enterprises Ltd, also established that certificates of trade mark and design registration are of equal status before the law: they are issued for different purposes and perform different functions, so neither takes precedence over the other by virtue of its status.

According to Uwa Ohiku (Jackson Etti & Edu, Lagos), this ruling will serve to educate officials at the Nigerian trade marks and designs registries, who often allow parties which have no legal rights to a trade mark to file and register it as a 'design’ with the intention of using it as a justification for infringing the trade marks of others.

Afro Leo understands that a search mechanism is currently being discussed, which would enable searches to be conducted at the Trade Marks Registry when design applications are being filed, so as to ensure that a corresponding trade mark has not already been applied for or registered.

Source: Uwa Ohiku, Jackson Etti & Edu, Lagos, writing for World Trademark Review

Monday, 13 February 2012

Kenya: IP Lawyer killed by gunmen

Well-known IP lawyer in Kenya Ms Rose Waruinge was shot and killed by gunmen on Friday night at her residence in Nairobi. According to a police statement, gunmen walked into her house and shot her in the presence of her son and guests. Nothing was stolen during the incident and the police are yet to establish the motive of the killing. According to the star newspaper, the police are pursuing “good leads” to the criminals who killed her.

Ms Waruinge is a former chairperson of the Board of Directors of Kenya Industrial Property Institute, and has practiced as a Patent and Trade Mark Agent for many years through her law firm Waruinge & Waruinge Advocates.

 Afro-ip extends heartfelt condolences to her family and friends. It is indeed a sad moment for the IP fraternity in Kenya.

A to Z of African official IP websites no.35: Mozambique

Thirty-five is now the number of countries whose official IP websites have come up for scrutiny by Kingsley Egbuonu on behalf of Afro-IP in his tireless A to Z pursuit of good, accessible official information and support of users of the various registered and unregistered IP systems. This week it's the turn of Mozambique -- and this is what Kingley has to say:
Overview

Mozambique is a Contracting Party to several intellectual property treaties with the notable exclusion of the Berne Convention for the Protection of Literary and Artistic Works. It is also member of ARIPO.

Copyright Office

• The National Institute of Book and Discs (INLD) (Ministry of Culture) is the competent office responsible for copyright and related rights in Mozambique. 
• This office has no website

Industrial Property Office

• The Industrial Property Institute (IPI) (Ministry of Industry and Commerce) is the competent office responsible for the administration of intellectual property rights in Mozambique. 
• The website www.ipi.gov.mz is in Portuguese.  It has both English and French options. A little trial showed that the English option does not actually translate all pages.

Social Media Presence

None found

Intellectual Property update in Mozambique

In 2010, the INLD organised a seminar on the proposed revision of copyright law and related rights and regulations under MDG-F’s Joint Programme for Cultural and Creative Industries and Inclusive Policies in Mozambique (here).

No further update was found.

Conclusion

Afro-IP is impressed with the IPI’s website, notwithstanding the language barrier. It is user-friendly and contains the requisite information one would expect from an IP office.

It took the United States of America a long time – even after many African countries -- to ratify the Berne Convention, but Mozambique hasn't quite go there yet. Afro-IP would be glad to hear from anyone regarding the proposed copyright law changes in Mozambique and/or whether Mozambique has any plans to ratify the Convention.
Kingsley tweets like a bird at @IPinAfrica

Thursday, 9 February 2012

RSA: UJ's IP Seminar - Prof Alberts at work

Prof Alberts
Prof Wim Alberts has put together a tantalising debut seminar at his relatively new academic home situated on the Auckland Park Campus of the University of Johannesburg. Attendance is free and you need to contact Mrs A Jacobs to reserve a spot and get further details for the 23 March gathering.

"INTELLECTUAL PROPERTY 2012: TOPICAL ISSUES



Seminar presented by the Faculty of Law, University of Johannesburg


Speakers


Judge Louis Harms (University of Pretoria) – Aspects of dilution


Mr Chris Job (Adams & Adams) – Priorities in the amendment of the Trade Marks Act


Prof Owen Dean (University of Stellenbosch) – Copyright aspect


Mr Andre van der Merwe (DM Kisch) – The domain name ADR system: Recent developments


Prof Coenraad Visser (Unisa) – Jurisdiction in trans-border IP conflicts


Ms Jean McIvor (Spoor & Fisher) – Implications of Madrid Protocol


Ms Tshepo Shabangu (Spoor & Fisher) – Outside perceptions of the IP profession


Mr Deon Bouwer (Bouwers) – Nando's and the ASA


Mr Darren Olivier (Adams & Adams) – Metatags, keywords, and social media


Prof Wim Alberts (University of Johannesburg/Edward Nathan Sonnenbergs) – Perspective on IP developments".

Tell WIPO what you think of it -- quickly!

The World Intellectual Property Organization (WIPO) is conducting a survey of what stakeholders -- people who use or are affected by WIPO's activities, think about it and its various services. This is a really important initiative, which the IP community should not just welcome but should support through its participation.

Whatever you think of WIPO -- love it or loathe it -- your opinion matters, and you can give it confidentially via an online survey. You can find details of the survey and why this blogger thinks it's important here.

The closing date for taking part is this coming Monday, 13 February, but WIPO has not said what time on Monday so it's best to do it by Sunday!

Monday, 6 February 2012

A to Z of African official IP websites no.34: Morocco

The thirty-fourth destination of Afro-IP's Kingsley Egbuonu is the Kingdom of Morocco, up on the top left-hand corner of the continent where visitors can surf both the Atlantic Ocean and Mediterranean Sea. But what might the online surfer in search of official IP sites discover? Kingsley reports:
Overview

Morocco is a Contracting Party to a number of treaties on intellectual property (IP) including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works.

Copyright Office

• The Copyright Office of Morocco (BMDA) is the competent office responsible for copyright and related rights in Morocco. 
• The website for this office, here, is in French but there is an option if you want to translate it into English or Arabic.

Industrial Property Office

• The Moroccan Industrial and Commercial Property Office (OMPIC) is the competent office responsible for the administration of intellectual property rights in Morocco. 
• The website for this office, here, is in French and, as with the BMDA above, there are English and Arabic options.

Social Media Presence

None found

Intellectual Property update in Morocco

Morocco was among the first eight countries which signed the controversial Anti-Counterfeiting Trade Agreement (ACTA) on 1 October 2011 in Japan.

Conclusion

The current state of affairs is that Morocco recognises IP as a proven tool that is able to contribute and support its socio-economic and cultural development. Consequently, its government set out a five-point framework (“the Vision 2010 plan”) towards an IP strategy which would then be incorporated in its national development agenda (see WIPO Magazine, here). This was conducted in two phases with the support of various international partners.

Afro-IP is pleased to learn that the revamped Moroccan IP office websites were as a result of the Vision 2010 plan. Taking into account the lack of social media and further room for improvement on websites, Morocco has demonstrated real commitment to IP - -at least, with a commendable online presence.

As it is just over a year now, Afro-IP would be glad to hear from anyone who knows about the Vision 2010 plan and its further successes in Morocco.
Kingsley tweets as @IPinAfrica

Friday, 3 February 2012

Friday's bobs - South Africa

Nolwazi Gcaba
It has just come to the attention of Afro Leo that a friend and former colleague Nolwazi Gcaba has been appointed as Chairperson of Spoor and Fisher. The position has been held by IP heavyweights Owen Dean and more recently Charles Webster. Hearty congratulations!

Other good news from the same firm is that Tshepo Shabangu has taken up a second term as president of the SAIIPL. Afro Leo has always felt that one year is not enough to make a real difference and this unprecedented move is very good news as well as recognition of Thsepo's work to date.

Derick Swart and Jeremy Speres of the new Stellenbosch technology firm Floor Swart Inc have also been active recently. They represented Royal Salt in a packaging dispute against Swartkops (SEEPO v SEESO - trade mark infringement and passing off) that was heard in the Eastern Cape High Court in the student town of Grahamstown. Their client's clean sweep in a thorough judgment can be found here. The lesson of the case, neatly put by Noseweek editor Hans Muhlberg, writing for Moore Attorneys:

"colour [ed - in this case orange] can be important distinguishing feature, use your trade marks in the form they're registered, and don't be a smart arse [ed- use of MARINA®SEESO®is not use of MARINA SEESO]".

Last evening's LES rendezvous was pretty good fun. The keynote speaker was light hearted and  informative. Behind the rhetoric that is almost mandatory from a government official is someone who seems intent on making NIPMO work. His obvious passion is dosed with a good understanding of the framework the office finds itself in which left Afro Leo optimistic that it may just work, albeit in time.

Finally, Afro Leo has heard through the ant line that the ASA is making progress in securing funds. It's not official and nor have actual amounts been pledged. However, the intent is apparently there.



South Sudan - IP progress is slow

News on IP developments in South Sudan is difficult to come by which is why Afro Leo was chuffed to receive a note from Simon Brown on colleague Theuns van De Merwe's recent trip to Juba. It is an update on Theun's report received by Afro Leo in September last year, and follows a progress note from SMAS Intellectual Property in December. The note says:

"Whilst we had fruitful discussions and deliberations with officials from both the Ministries of Justice and Trade & Commerce as well as the Chief & Deputy Registrars at the Business Registry under whose responsibility the Trade Mark Office operates, it was not possible to obtain clarity on the issue. It became evident that the current political and socio-economic climate in South Sudan is weighing in on the current efforts to formalise associated rules, processes and systems.   As things stand, the Registry in South Sudan is not consistently processing trade mark applications. When it does so, it is not clear whether the applications are processed under the auspices of the Sudanese Trade Marks Act, 1969 and its regulations or a sui generis system.   However, it is clear that rights obtained in Sudan (North) do not extend to South Sudan."  

Simon's firm is committed to finding out more about South Sudan and Afro-IP appreciates the updates.

Wednesday, 1 February 2012

Frankies v Woolies update

Just a few hours ago, the ASA made its ruling in the Frankies v Woolies packaging dispute that broke just before Xmas.

Afro-IP follower Tricia Martin drew the report on News24 to Afro Leo's attention which then provoked him to call the ASA who, as usual, were very helpful. Leon Grobler kindly emailed him the decision.

It is important to note that the ASA was only asked to rule on whether the use of the phrase "Goold Old Fashioned" was advertising property and/or imitated by Woolworths and not whether:

• Woolworths copied/exploited the idea to sell soft drinks with “vintage” flavours;

• Woolworths copied the specific flavours sold by the complainant;

• Woolworths copied the complainant’s labels and/or bottle shapes.

In upholding the complaint on "imitation" only (and not ruling on "advertising goodwill exploitation") the ASA ruled that:

"What is clear is that on 15 April 2011, the complainant’s attorneys wrote a letter to the respondent’s supplier indicating that the complainant considers the phrase “Good Old Fashioned Soft Drinks” to be its advertising property. This letter was responded to by the respondent’s attorneys on 12 May 2011. What is important to note from this is that the respondent was aware, at least as early as April/May 2011, that the complainant considered the phrase “Good Old Fashioned Soft Drinks” to be its advertising property. Yet even though its design brief shows that it had a different phrase or phrases in mind for its packaging after this correspondence took place, it ended up using the phrase “Good Old Fashioned” on its packaging. No explanation for this was given.



In light of this, it appears that the only reasonable conclusion to be drawn from the evidence before the Directorate is that the respondent deliberately and intentionally copied the phrase “Good Old Fashioned” from the complainant’s advertising.


Accordingly, the respondent’s use of the phrase “Good Old Fashioned” is an imitation of the complainant’s “Good Old Fashioned Soft Drinks”, and it is therefore in breach of Clause 9 of Section II.


Given the above:


• The packaging in its current format must be withdrawn;
• The process to withdraw the packaging must be actioned with immediate effect on receipt of this ruling;
• The withdrawal of the packaging must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
• The packaging may not be used again in its current format in future."

Woolworths have 10 days within which to appeal the decision to the Tribunal level.