Friday, 28 September 2012


WIPO mag gives CSIR a plug

"Building South Africa's innovation ecosystem" is the title of a piece in the most recent issue of the World Intellectual Property Organization's WIPO Magazine. Written by Catherine Jewell, of WIPO's Communications Division, it reviews the activities of South Africa's Council for Scientific and Industrial Research (CSIR), a leading scientific and technology research, development and implementation organization, and its President, Dr Sibusiso Sibisi.

The CSIR looks like an interesting African project combining public and private cooperation in the funding of innovation, with just 30% of its cash coming directly from the state, the rest being made up through contract work with public and private sector entities. Founded in 1945, it is actually older than most African countries. Certainly it appears from its website that CSIR is a stable and successful organisation.  If so, this blogger wonders why has it not been a model to be emulated and developed across the Continent.
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Thursday, 27 September 2012

Darren Olivier

ADR compulsory in Nigeria say new rules

According to this news article, in a bid to speed up cases in Lagos courts, the judiciary has introduced the compulsory use of ADR. The new High Court of Lagos State Civil Procedure rules 2012 launched by the chief judge of Lagos, Justice Ayotunde Phillips, apparently contain the provisions.

If anyone can comment if and how these rules apply to IP disputes, we would be grateful.
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Wednesday, 26 September 2012

Aurelia J. Schultz

Opportunity for Sharing in North Africa

For our North African readers and other Arabic speakers interested in the open access side of copyright, here’s information on the upcoming Creative Commons Arab World Regional Meeting to be held in Cairo from 11 to 15 December this year.  The meeting will be conducted in Arabic.

The last Arab World Regional Meeting was held in Tunis and was thoroughly enjoyed by all who attended.

Photo: Cairo CC-BY Jerome Bon available on Flickr

تنظم مؤسسة المشاع الإبداعي بالمشاركة مع مؤسسة التعبير الرقمي العربي (أضف) ملتقى يضم  الناشطين العرب  و المؤمنين بالرخص الحرة والحق في المعرفة، منهم من أنتجوا أعمالهم تحت رخص المشاع الإبداعي
                                                                                                                                                                                    ينظم الملتقى الرابع

" المشاع الإبداعي/ العالم العربي "

من ١١ - ١٥ ديسمبر/كانون الأول ٢٠١٢ في مقر أضف في القاهرة.

     إذا كنت ترغب في التقدم للمشاركة في الملتقى العربي الرابع للمشاع الإبداعي وعندك أفكار لورش ممكن أن تنظمها بمفردك أو بالمشاركة مع آخرين يرجى إعادة إرسال  هذه الاستمارة، بعد ملئها، في موعد أقصاه الاثنين 15 أكتوبر

  !شكرا لك

§         يرجى توضيح الاسم والعمر والجنسية ومحل الإقامة والمهنة (مجال التخصص)، كما يرجى إرفاق صورة ضوئية لجواز السفر للمقيمين خارج مصر.

§         يرجى أيضا توضيح إذا كان اقتراحك، اقتراحا فرديا أو جماعيا (فإذا كان اقتراحا جماعيا، نرجو تضمين الاسم والعمر والجنسية وبلد الإقامة والمهنة وصورة ضوئية لجواز سفر جميع أفراد الفريق المقيمين خارج مصر).

§         الرجاء كتابة فقرة قصيرة تصف ورشة العمل أو التدريب العملي الذي ترغب في اقتراحه للاجتماع الإقليمي. يرجى إرفاق رؤوس المواضيع التي ستتناولها وإطار العمل وعدد الساعات/الأيام اللازمة لتنفيذ اقتراحك.

§         يرجى أيضا توضيح الجمهور المستهدف المثالي من التدريب أو ورشة العمل (موسيقيين أو مدونين أو تربويين أو مخرجين أو رسامين...) وإذا كان هناك أي مُخرَج من أي نوع لورشة العمل الخاصة بك (فيلم أو موقع على الانترنت...).

إذا كنت لا تنوي أن تكون مدرباً أو لا تخطط لتنظيم ورشة عمل ولكن ترغب، رغم ذلك، في حضور الاجتماع الإقليمي، قم بما يلي:

§         كتابة فقرة قصيرة عن سبب رغبتك في الحضور.

§         صياغة فقرة قصيرة تتضمن الفاعليات والمشاريع التي شاركت فيها مسبقا وترتبط بالمشاع الإبداعي أو ثقافة المصادر المفتوحة.

§         يرجى الإشارة إلى شخصين أو مكانين يمكن الرجوع إليهما، أو وصلات لمواقع على شبكة الإنترنت أوصفحات فيس بوك تتعلق بالمشاريع التي ذكرتها.

§         من فضلك قل لنا إذا كنت تخطط وكيف، لتبادل هذه التجربة مع مجتمعك المحلي من الفنانين والصحفيين والتقنيين.

   شكرا للجمي

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Darren Olivier

RSA - TK legislation given a reprieve

NHTD Chairperson:
Kgosi Maubane
The controversial traditional knowledge legislation waiting for a final signature from RSA's President Zuma before becoming law has been sent packing according to a recent Democratic Alliance (DA) press release. The Bill has been referred back to the Portfolio Committee because it had not been approved by the House of Traditional Leaders.

The National House of Traditional Leaders recently delayed its annual official opening until further notice, which could mean that we have to wait some time before the final draft legislation gets their comment. It may well be quicker for proponents to sneak the Bill into the next nuptial papers of the President, says Afro Leo noting that Zuma's presidency comes under the spotlight at election time next year.

The DA also believes that this move will create an opportunity for them to oppose the legislation again by voicing many of the concerns raised by academics and commentators about the viability of the Bill. Readers will recall a poll on Afro-IP last year that revealed that out of 55 participants not a single vote went in favour of the proposed Bill, many preferring a separate stand-alone piece of legislation rather than amendments to existing IP laws. Prof Dean, the most outspoken critic, even went so far as to draft alternate legislation - see Afro-IP post here.

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Monday, 24 September 2012


Botswana: in the news again

Last month Kingsley Egbuonu posted this round-up on Botswana and now that charming little country is in the news again, thanks to "A Brief Look At Botswana’s New IP Law", posted on the excellent Intellectual Property Watch site by Linda Daniels. A brief summary of Botswana's 2010 IP law, plus a few handy links, can be accessed here.
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A review of African official IP websites: no.11: Comoros

Back in 2010, Darren wrote a piece inviting our readers to name where Afro Leo can be spotted taking a break. A reader, Nevashni Pillay, got the clue: Comoros. The Union of Comoros, as it is officially known, is a beautiful island from what this Leo has heard and the pictures he has seen; nevertheless, it still has no website for its intellectual property (IP) office - a recent development since Darren's piece. Afro Leo is not always happy whenever nothing comes up on intellectual property (IP) on search results for any given country in Africa; but when things are "assessed globally" or put in perspective, he may be able to, sometimes, understand why.

This little Leo is tempted to ask readers to name the African country with no website for its IP (Afro Leo immediately says: "no", this would be time-consuming as the response would come as a list.) I totally agree with Afro Leo on this one since I have seen it for myself. However, I am sure that the correct answer to the following question is one word: which country is the United States' 222nd largest goods trading partner in 2011?

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Thursday, 20 September 2012

Darren Olivier

Around the Firms

Every so often Afro Leo wanders onto IP firm websites in search of scraps of information on African IP. This time he found out that:
  • The Libyan IP office has started issuing trade mark certificates and examining pending applicatons but it is not possible to file new applications, unless perhaps you are Swiss. Saba brings us the news here.
  • In Sudan, it is no longer necessary to legalise powers of attorney but they are concerned to know that your nationality has remained static during the period between application and the end of the opposition period. Saba in the mix again - here.
  • Adams & Adams have published a comprehensive guide to intellectual property in Africa funded by the World Bank. Get your copy here (please indicate that its is an Afro-IP referral - no money for us but we would like to know).
  • Spoor & Fisher and international firm DLA have entered into a strategic alliance - click here for more information.
  • Punted as the largest ever IP gathering in Africa, Gift Sibande is a keynote speaker at an IP seminar where 50 representatives from 25 countries in Africa are being hosted by Adams & Adams, in Pretoria. More information here.
If you have information on African IP, we are interested - please email us here.

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Monday, 17 September 2012


A review of African official IP websites: no.10: Chad (Afro-IP's shortest blog post ever?)

This little Leo managed to navigate his way back into the Republic of Chad in search of its intellectual property (IP) office and/or any IP news online, only to be presented with various celebrity and sport headlines from the United States of America (Afro Leo now learns that the Americans love the name, Chad; but hopes that one day, Chad, the country, would become newsworthy). On our last visit, there was at least some life online in Chad - albeit an irrelevant and not so useful one for IP - but that is no longer the case. So, yet another stagnant member of the OAPI

Is this the shortest blog post ever, on Afro-IP?
For all other things 'Chad' see here, here and here
Talented sportsmen and women at the OAPI, Cameroon, see here
Cameroon's medals table at the 2012 Olympics see here
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Wednesday, 12 September 2012

Aurelia J. Schultz

EIFL coats Africa in Open Access Activities

EIFL, which stands for Electronic Information for Libraries, recently released its September-October newsletter and boy are there tons of goodies about Africa in it!

EIFL’s focus is on increasing access to knowledge, and it works in collaboration with libraries around the world.  As we all know, libraries run into plenty of copyright issues in their work.  Here are some highlights from their recent African events.

FOSS Training Follow-up

100_1584Anyone who has spent more than a few weeks in an African country has probably been to or at least a large group of well-dressed people joyfully greeting each other outside a meeting hall. Trainings, workshops, meetings, from the smallest village to the largest city, there’s always an opportunity to learn. Everyone comes together, shares, talks, gets excited, and then what? For EIFL, the then what is follow-up. In this case follow-up on the FOSS for librarians training it held in Tanzania last year.
Photo: Community members participate in a workshop in Cheelo Village, Monze, Zambia.

“there were reported over 50 implementations [of FOSS software in libraries] in total since the event, with no country reporting zero implementations.”

Open Access Journals and Awards in Uganda

In July, Makerere University in Uganda hosted a workshop on “Open Access (OA) and the Evolving Scholarly Communication Environment.”  The workshop recognized Uganda’s existing Open Access repositories, highlighted some top Ugandan scholarly journals and discussed publishing options.

“an African OA journal can attract large numbers of manuscripts in a very competitive environment; an increase in submission volumes comes with an increase in challenges (need for staff, system upgrade, change in procedures) which should be anticipated.”

Afro-Leo admits to being a bit disappointed here.  The Africa Crop Science Journal has its articles available online – a good first step indeed! – but neither the journal nor the websites appear to actually be openly licensed.  This little Leo hopes she’s just missing the open access copyright notice somewhere.  The PanAfrican Medical Journal, however, made her smile as the first article she clicked on was licensed with a Creative Commons Attribution (CC-BY) license. Now that’s Open Access.

Uganda is also highlighted in the October newsletter for being one of two recipients of EIFL’s  Innovation Award – for library services that contribute to the health of the community. Congratulations Hoima Public Library! 
Nominations for next year’s award will be accepted beginning October 1st.

Congratulations to the Zimbabwe University Libraries Consortium on its 10th Anniversary.


Upcoming Events

If any Afro-Leo readers are attending any of these programs, please let us know. We’d love to have your report on the events.

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Darren Olivier

Swiss based firm attempts to monopolise biltong

Swiss based lawyer Andre Myburgh has sent through a fascinating attempt by a Swiss firm to lay claim to trade mark rights over biltong, a distinctly African snack. He tells the story below and leaves with a call for someone to take responsibility for a watching brief over indigenous names.

"In the latest attempt to monopolise the name of an indigenous South African product, Swiss firm Catora AG has registered BILTONG as a trade mark and advertises “BILTONG ® LOW FAT HIGH IN PROTEIN”.  

Thorny issues in Switzerland
For 154 Swiss Francs (about 1 350 South African Rand), you can buy 1 kg of the finest Swiss-made “Biltong®” from the Grisons region.  The writer can tell you that dried meat from this region, known as Bündnerfleisch, is not to be scoffed at!  For a more modest sum of 78 Francs (about 680 Rands), you can buy one kilo of imported South African biltong.  Sorry – “Biltong®”, according to the website.  The South AfricanBiltong® is not in stock at the time of writing, so those not able to afford the fine Grisons Biltong® will have to make do with British Biltong®.

It is universally accepted that the “R-in-a-circle” symbol ® can only be used to indicate a registered trade mark.  This is also so in Switzerland  as stated in the Registry’s website at here.  So how can Catora AG claim registered trade mark rights to the word “biltong”, which, for the record, is defined in the Collins English Dictionary as “strips of meat dried and cured in the sun”?

Catora AG does have a registered trade mark for the word mark BILTONG.  It was entered on the register on 12 March 2012 under no. 626853, and was not opposed.  However, interestingly, it was registered in class 43 in respect of “services for the accommodation of guests.”  Interestingly, because no board & lodging isadvertised under the registered mark BILTONG® trade mark on the Catora website, and the main object ofCatora AG does not mention that the company exists to cater for the accommodation of guests.

Questions of geographic indications aside, a case like this should be easily dispensed with.  In Switzerland, there is a raft of industry associations which look out for marks claiming unwarranted claims about products being Swiss.  For example, I am sure that many of the South African trade mark firms on Afro Leo have at least once encountered a threatened opposition by Swiss industry association Chocosuisse against an application for a mark containing the word “Swiss” in class 30 covering chocolate.

But in South Africa, the question always seems to be who is responsible for watching over South African indigenous names internationally.  Is there aindustry association which promotes export of South African biltong or other agricultural produce?  Or, considering itsrecent enthusiasm to protect geographic indications in legislation, is the Department of Trade & Industry the appropriate body to serve as a watchdog?  

At the end of the day, a country cannot simply rely on legislation and policy to protect its indigenous names abroad – there must be a process under which someone, somewhere, will take up the cudgels and actively take steps to do so."
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Monday, 10 September 2012


A review of African official IP websites: no.9 Central African Republic

This little Leo thinks that it must have been easier to get into the Central African Republic (CAR) back in 1977 than it is today; if not, how did the OAPI come into existence? In hindsight, it appears that CAR was ahead of its time; or perhaps, she just found herself in such a position as the birthplace of the OAPI. (Afro Leo comments that, some argue that IP laws on the African continent are too strict and not concurrent with economic development). Generally, this Leo also finds it strange that  certain treaties or other legal instruments are signed off in remote places. And sometimes, these places bear no relevance to the matter, or moving forward, are unlikely to have any significant stake, role or influence in it. To this Leo, CAR appears to be one of those places. 

Exactly as experienced last year, there is no website, yet, for CAR's intellectual property (IP) offices and no IP-related news from the country was found online. Last week, Jeremy Phillips of the IPKat, mooted the need for developed nations to initiate some form of bilateral partnership with most of these countries in Africa for operational support. (Afro Leo adds that since these countries, for instance OAPI members, operate an IP regime beyond the TRIPS requirement, why can't they also have an online presence, at the bare minimum, or one similar to their counterparts in the developed world?) This little Leo holds a similar opinion to that expressed above: we know that amongst others, France assisted the francophone African countries in establishing the OAPI and that the IP laws in these countries were modelled on French legislation; so why are the engineers not helping the structure stand in a digital age? (Afro Leo also feels that the recipient nation must have the will to make any of these efforts work).

Even more worrying is that, as this Leo pointed out  here and here, the two regional IP organisations in Africa are also in need of operational support, themselves,  to 'get their houses in order' online and perhaps, to be able to also support their members in this area.

Where do we begin?
Which developed nation is willing to lead by example? 

Please let Afro-IP know.
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Darren Olivier

BSA reports on RSA's readiness for cloud

The Business Software Alliance (BSA) is a not for profit trade group assimilated to further the interests of the software industry. They seek to achieve this through education, lobbying and consulting with governments, and through an IP (mainly copyright) enforcement program.

BSA's premise, as far as IP is concerned, is that it provides the bedrock for innovation in the software industry by incentivising and protecting developers (and companies) to invest research and devlopment. Some of the benefits include accelaration of access to information and drugs in Africa (Afro Leo mentions these, in particular, because they are often cited as reasons why IP laws should be relaxed in the face of some of Africa's intense needs in these areas).

One of BSA's focus areas of late has been cloud computing. South Africa's readiness to take advantage of cloud based computing was assessed by the BSA along with 24 other countries that are estimated to account for 80% of global IT spend. RSA was the only country mentioned in Africa and fared 18 out of the 24 based on 7 criteria (privacy, cybercrime, cyber security, intellectual property, free trade, IT infrastructure and interoperability). The key findings were that (see full report here):

RSA - partly cloudly with scattered showers
  • there are no specific regulations for cloud computing
  • privacy legislation is not yet in place (there is legislation in process)
  • IP legislation needs to be brought up to date
  • domestic preferences for government procurement hinder free trade and technology interoperability
  • there is no comprehensive plan or funding for expanding broadband infrastructure at this stage.
Although RSA IP legislation is somewhat antiquated when it comes to copyright (drafted in 1978 with some major amendments in the 90s), the fundamentals for IP protection for software are present and with contemporary interpretation by the courts, IP owners have not been let down - see, for example, the recent Discovery case here - a case whose facts lend themselves to an assessment of copyright protection in a future cloud based environment.

To understand the impact of cloud computing on IP and piracy one needs to assess what the cloud is and how it is delivered. One question which has been raised is whether cloud services (especially SaaS) is likely to reduce software piracy which currently prevails in one out of every three businesses in RSA, according to the BSA.

understanding the cloud is not this traumatic! (Twister)
Cloud is not a product but an architecture that facilitates access to software services (and more). Three distinct services have emerged:
  • SaaS - software as a service - by far the most popular
  • IaaS - infrastructure as a service
  • PaaS - platform as a service
There are also two basic types of delivery of cloud based services - those delivered through a public cloud and others through a private cloud . Most organisations accept cloud based services through both, in combination with their on-site software infrastructure which, by the way, cloud is not expected to replace for a number of good reasons.

Cloud computing is estimated to attract around 8% of global IT spend in 2012, according to the BSA website. This spend is expected to increase by 25% in 2012 and byover 33% in 2013. We have already experienced the massive impact of the cloud in much of the technology that drives our smartphones and Linkedin is just one of many examples of services making use of the cloud.

When it comes to internet piracy sadly though, the cloud is expected to accelarate and proliferate the scurge in the following ways:
  • Using the cloud to deliver illegal software - creating a Saas offering without a licence for redistribution
  • Pirated software is used in a private clould model within enterprises
  • Under licensing in a private cloud environnment
  • Sharing/abuse of SaaS account credentials or hacking into SaaS
Afro Leo concludes that cloud based computing is one of the most exciting developments in the software arena and would be delighted if the RSA government launched a commission into the update of Copyright legislation to bring it into line with international norms, help create jobs and benefit local software developers.

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Thursday, 6 September 2012

Aurelia J. Schultz

Who Doesn’t Love a Little Competition

This is perhaps a bit tangential to Intellectual Property.  However, knowing that these two areas of law do collide and being familiar with the wide array of practice areas covered by most attorneys in Africa, this little Leo thought it could prove helpful to report on a recent program on Antitrust Enforcement in Africa.

The program, put together by the International Section of the American Bar Association [hooray for the US finally paying attention to African law!] featured a panel of speakers from eastern and southern Africa.  Due to some poor phone connections and a too-long absence from Africa that made accents a bit challenging, some tasty morsels of information got away from Little Leo.  Here are some highlights of the bits that were caught and adequately devoured.

This Little Leo’s favorite type of competition. Photo: Ready to Hike cc-by Michael Heisel available on Flickr.


Kenya’s New Commission

Kenya has a fairly new Competition Act (2010, available via WIPO here). This act replaces, or at least takes some duties away from, the Monopolies and Prices Commission.  (Little Leo thought she heard replaces, but isn’t sure due to above mentioned glitches in the call.)  The Competition Act establishes a Competition Authority, which handles all the filings, investigations and etc.  Although its has a website [Kingsley will be pleased], Christine Mweti mentioned during the program that there are still some appointment slots needing to be filled.

Although the Commission isn’t fully up and running, it has already started work with a successful enforcement against MultiChoice Africa and several other investigations currently in progress.

Namibia’s Rules on the Way

Namibia is also developing more robust antirust laws.  With recommendations from consultants completed several months ago, the Namibian government is working on writing rules to give the Namibian Competition Commission, and those doing business in Namibia, more guidance on what is required for compliance with the Competition Act (presumably the Act of 2003, available here). 

The new rules will set monetary thresholds for notifying the Commission about mergers.  Currently, because there are no specified thresholds, the Commission must be notified of every merger.  The specificities of the new rules will likely be a welcome change for those doing business in Namibia as violating the competition laws can cost a company 10% of its global turnover.

South Africa’s Competition Amendment Act Expected to Languish

South Africa passed an amendment to its competition act in 2009.  The very controversial amendment is not in force yet and is not expected to be brought into force anytime soon.  The amendment would introduce criminal liability for directors and managing employees of companies involved in cartel conduct.  Other provisions detailing increased fines are speculated to be unconstitutional.  Tamara Dini believes we will see changes to the South African Competition Act, but not via this amendment.  (Act and amendment available here.)

The South African Competition Commission appears to be the most active in the region.  Focusing on four priority areas, the Commission investigates complaints, reaches settlement agreements and decides contested cases.  The Commission has also created a fast track option for leniency applications in the construction industry.  Most cases settle, so there is not a lot of case law on prohibited practices.

Zambia Introduces Thresholds

Like Kenya, Zambia also has a fairly new act, the Zambian Competition and Consumer Act 24 of 2010.  (Available for download from the Zambian parliament here.)  Zambia’s new act establishes thresholds for dominance and control and introduces a leniency program that encourages cartel members to come forward.

The Competition Authority has not been very active in the last year as businesses filed few applications, waiting to see if political stability would continue post-election.  When companies are considering a merger, they should meet with the authority for a pre-application meeting where they can gauge the acceptability of their merger plans.

Zimbabwe’s Competition Commission Highly Efficient

Zimbabwe may have had to amend its Competition Act more than usual due to hyper-inflation, but that hasn’t harmed its Competition Commission.  The Commission, which has 90 days under the Act to review filings, usually has that review done within 30 days.  And those are calendar days, not business days.

Bexley Chinake gave two examples of recent Commission enforcement successes.  One was against a medical services group with a specialist unit in dialysis. The medical services group was refusing to pay for services performed at any dialysis centers that it did not own. This was found to be in violation of the Competition Act.

The second case was against the national power company. When Zimbabwe officially switched to using US Dollars as an accepted currency, the power company changed its customers’ bills into US Dollars. However, since the Zimbabwean Dollar’s inflation had been so out-of-hand, there was no real exchange rate and the power company picked seemingly random US Dollar amounts for the bills. Thanks to the Commissions enforcement activities, those bills were set aside.

Regional Similarities and What’s Coming in COMESA

Nearly every country represented here has public interest or consumer welfare as a factor in its competition law.  Most common is a requirement for the governing body to look at the effect a merger will have on domestic employment.  While these terms aren’t always well defined and have even been challenged in Namibia’s High Court, they are still important.  Generally, these public interest factors are applied to mergers between companies already doing business within a country, but in its WalMart case, South Africa recently applied these factors to a company attempting to move into the South African market. (Wall Street Journal article on the case.)

COMESA, the Common Market for Eastern and Southern Africa, is also talking competition law.  Plans are in the work for a COMESA competition treaty.  This treaty is expected to create a new body, the COMESA Competition Authority, by 2014.  Rules and regulations for this new body are already being drafted.  The most likely outcome of this new body would be that all mergers happening in the COMESA countries would now need to be dually notified to both the local authority and the COMESA authority.

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Monday, 3 September 2012


A review of African official IP websites: no.8 Cape Verde

Afro Leo is not known for invading suburbs in Kenya or wandering about in Essex; but he is certainly famous for being nosy in the intellectual property (IP) matters of African countries.

This week, this little Leo revisits Cape Verde ("you wish!" says Afro Leo) for any signs of improvement since it was last reported that the islands' IP office is nowhere to be found online. So any good news this time? No, it is still in the same condition.

However, this Leo is optimistic when he considers that Cape Verde officially became a WTO member in 2008 and that its newly created IP office has, at least, done something. So, hopefully, it won't be long before you start reading Afro Leo's 'IP ode' to the gorgeous islands of Cape Verde.

Despite receiving less than expected from one of the PIIGS (Afro Leo learned a bit about Cape Verde on our last visit so he knows which one; he also likes their IP office's website), this Leo wishes Cape Verde well in its development and hopes that it can learn from others whilst formulating its IP regime. (Afro Leo can be heard from a distance saying: "please don't forget to spare a little change for a website for your IP office)
Bees that go 'Cuckoo' in others' nests in Cape Verde see here
Afro Leo spotted in Essex? probably a big Kat, see here
For PIIGS that won't fly see here
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