Tuesday, 30 April 2013

Darren Olivier

Mandela name fight - much ado about nothing?

Last year Natacha Rey (Adams & Adams) produced a guest post on how to use IP to protect the Madiba legacy. Just yesterday, Times Live and other newspapers produced a report about the alleged land grab by the Mandela family to claim rights to the name by registering various companies using the Mandela name. The report has gained some viral popularity on the back of similar claims over copyrighted works and art, which is unfortunate because it misrepresents how rights in the names are obtained.

Natacha's clairvoyant post illustrated that trade marks are the primary means of protecting a name. The names of companies are not right generating in the same sense and although a failure to clear the company register can lead to loss of rights in a name (as illustrated here) they are nothing more than a name on a register. What matters is who uses the name, how it is used and who owns it on the national register. The alleged marriage in community of property (to Graca Machel) also does not necessarily mean that the rights in the name will automatically be owned by a surviving spouse, which seems to be the cause of what has been alleged.

Some of the rights in the name Mandela are simply incapable of being assigned or owned by anyone else as they are inextricably linked to his personality. However, the rights in the name MANDELA (and others) which symbolise that personality as a trade mark, are capable of being registered and have been so. These rights are capable of being transferred. If the owner of that trade mark is a trust, then the rights in that trade mark are governed by the legal agreement governing the trust.

The challenge with the Mandela brand is that it is so well known that in some cases it will have difficulty functioning as a trade mark. The late Elvis Presley and Princess Diana estates experienced this problem. However, properly managed, the Mandela brand is quite capable of being protected and if the family members are concerned, well they should be if they are infringing it.

Although there is some limited protection under the Trade Marks Act for family members using their own names, they need to ensure that they use their full name (Mandela is not enough) and that they are not guilty of passing off eg by creating a false impression that the services or goods purveyed by the company concerned are endorsed by the man himself.

What the owners of the Mandela trade mark need to do, is properly assert rights over the trade mark against the family members under appropriate company legislation, if that is what the situation requires. A failure to do so may not only devalue the brand but also create possibilities for non family members to use the name.In the event that the family name is entitled to be used, then this should be recorded in a licence with rights accruing to the owner of the trade mark MANDELA.

Two recent cases in RSA, involving the finance publication Bloomberg and the late Steve Biko, illustrate the comments made in this post and will be summarised for your consumption in a post in May.
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Darren Olivier

INTA's Africa Focus

As everyone is gearing up for the annual migration to INTA (unfortunately not  to the Serengeti) next week, here is a reminder of the Africa sessions. 

If you will be attending and on twitter please share your experiences and updates using #INTAAfrica. The @afroip handle will be tweeting furiously during the Africa sessions that Afro Leo is able to attend. Guests posts after the sessions are also welcome - please send them here.


Table topic: 1:15 - 3:15
Challenges in the Enforcement of Trademarks in Regional Economic Integration in Africa
Saudin Jacob Mwakaje, NexLaw Advocates, Patent and Trademark Attorneys (Tanzania)

Over the past 10 years, Africa has experienced rapid and significant development, on both economic and legislative fronts, but challenges still remain.  Panelists will discuss issues of importance such as the development of various IP laws, the organization of IP Offices, Madrid Protocol and developments in case law, as well as counterfeiting, enforcement and brand protection issues in Africa.
ModeratorSimon Brown, Adams & Adams (South Africa)
William I. Maema, Iseme, Kamau & Maema Advocates (Kenya)
Uche Nwokocha, Aluko & Oyebode (Nigeria)
Darren Olivier, Adams & Adams (South Africa)


Table topic:1:15 - 3:15
Trademark Searching and Clearance in Africa
Kay Rickelman, Spoor & Fisher (South Africa)
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Monday, 29 April 2013

Kingsley Egbuonu

A review of African official IP websites: no.41: Senegal

In March 2012, this Leo trawled the web in search of Senegalese Agency of Industrial Property and Innovation (ASPIT); but found nothing. Revisiting the March 2012 post, Afro-IP is grateful to see a comment posted in June 2012 by one of its readers from Bulgaria which draws our attention to the fact that a website does exist for ASPIT. Again, this Leo is left curious as to why he did not come across ASPIT's website as of March 2012: was it an oversight or did the website come to life after our post in March 2012? (The copyright mark at the bottom of the web page reads 2012; probably an indication of its birth year?, asks Afro Leo)

When this Leo was carrying out his research for the 2011/2012 A-Z campaign, one of the websites visited, for each country, was www.wipo.int. But he must admit that since the start of the A-Z review,  he has not visited WIPO's website in search of updates. Well, that changes from today since WIPO now has its eyes on these IP offices.

Regardless, Afro-IP is very pleased to see a nice and an up-to-date website (www.aspit.sn) for the Senegalese IP office. We hope to see more of this as we progress in our review of the remaining IP offices across Africa.
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Saturday, 27 April 2013

Aurelia J. Schultz

IP and Public Health, perspectives from PIIPA Seminar

PIIPA, Public Interest Intellectual Property Advisors, recently released the slides from their seminar on the Role of Intellectual Property in Public Health.

Africare Suggests IP as an incentive for developing new, affordable medicines

The first set of slides was from Dr. Kechi Achebe of Africare.  For those who are not familiar with Africare, it is a large non-profit organization that focuses on health, agriculture and water and sanitation projects in Africa.  It is one of the oldest NGOs working in Africa and is currently active in 21 countries.

Dr. Kechi explained that “less than half of the patients suffering from infectious diseases are able to access medicine,” and the majority of these people are in Africa and India.  Africare recognizes the benefits of trademark protection in preventing damages from counterfeit medications but has concerns about the higher costs of patented medicines.  Dr. Kechi had a list of recommendations for the relationship of IP and public health:

  • Intellectual property should be managed to promote the
    development of new medicines
  • Intellectual property should provide incentives for
    investment into innovation – development of new
    medicines to make it affordable to the poor
  • All governments would be able to provide – or ensure
    the provision of medicines within the reasonable
    budgetary capacity of the nation
  • Coming decade likely to be characterized by restrained
    government spending, necessitating more efficient
  • Multilateral institutions may assist by promoting
    cooperation among diverse stakeholders
  • NGOs should continue to play a role in drawing attention
    to gaps in access to medicines

Dr. Kechi’s suggestion are such that everyone involved in public health and intellectual property could easily agree on them.  Many of these goals have been long-established.  The problems come when various stakeholders start attempting to plan for reaching these goals.  Not only do stakeholders’ interests collide, but often the goals themselves collide.  For example, intellectual property as a tool to promote development of new medicines and all governments ensuring provision of medicines within reasonable budgetary capacities may be at odds.

America Suggests Same Old Suggestion

Dr. Mark L. Rohrbaugh of the US Office of Technology Transfer at the National Institutes of Health presents, in this American Leo’s view, a very Western solution to IP and Public Health: tiered pricing.  It’s not a new idea and is one that even appears within many IP-related treaties.  Medicines should be introduced first in a developed economy where they can be subjected to appropriate scrutiny and testing and then, after a period of time, released or licensed for manufacture in developing countries at a lower price tier.  Dr. Rohrbaugh acknowledges three countries in Africa that he felt had manufacturing capabilities: Egypt, South Africa and Kenya.

Dr. Rohrbaugh highlights a number of success stories of medications available at lower costs in developing countries and technologies licensed to manufacturing companies in developing countries.  However, despite these examples, Little Leo has doubts about the sustainability of this method.  Most of the problematic diseases in developing countries are tropical diseases found almost exclusively in those countries.  Having tiered pricing systems where developing countries pay below market rates runs the risk of dis-incentivizing the development of the very drugs that are most needed.  Perhaps there’s enough Western-based NGO’s buying medicines for their field workers to support a developed-world market.  Perhaps Little Leo is too cynical…

NIH does participate in technology transfer programs and has an internship program to teach skills necessary for such transfer in developing countries.  More about the program can be found here.

Note: Suzanne Seavello Shope of the Centers for Disease Control (CDC) also presented on technology transfers.  Her slides are basically examples of successful technology transfers.  There’s a link to the full slides above if anyone’s interested in seeing the examples.

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Friday, 26 April 2013

Darren Olivier

Protecting RSA's trade secrets - a chat with CNBC's David Williams

This week CNBC Africa asked for my views on protecting trade secrets (not to be confused with the Secrecy Bill) in South Africa. These are some of them:

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Thursday, 25 April 2013

Aurelia J. Schultz

Uganda World IP Day Celebration

Capture 60 The Uganda Registration Services Bureau is hosting a day-long celebration for World Intellectual Property Day on Friday, April 26th.  The celebration has a theme and a subtheme: Creativity - the next generation, Tapping wealth from within.  It will feature several speakers, including the Chairman of the Board of Directors.  Exhibition stalls will be open all afternoon for perusing while enjoying the accompanying entertainment.  Afro-Leo is very curious what these stalls will feature and wonders if they’ll have as many freebies as INTA stalls.

This celebration is actually the final event in a week-long series of programs recognizing World Intellectual Property Day.  The Bureau also held a media conference, co-sponsored a technology transfer workshop and IP policy forum with WIPO and participated in a radio talk show. 

The Uganda Registration Services Bureau Intellectual Property Department is also the country’s National Intellectual Property office.  It’s role is the promotion of creativity and IP awareness and to review IP registrations.

What: A celebration of Intellectual Property
When: 8:00-17:00 16th April 2013
Where: parking lot behind the Buerau’s offices, George Street, Plot 5
Why: To celebrate creators and innovators who have impacted Ugandan society

Full programme




8:00AM - 9:30AM


9:30AM - 11:00AM


11:00AM - 11:30AM







11:30AM – 12:30AM


12:45PM – 4:30PM



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Wednesday, 24 April 2013


Libya is ... isn't ... is accepting trade mark applications

There appears to be something of a difference of opinion between two respected international IP practices as to what is actually happening in Libya.  Last Wednesday, after Afro-IP posted news that Libya's trade mark office had reopened for search requests at the beginning of April and would accept new applications for registration in May, this blogger received the following information:
"NJQ Successfully Files the First Trademark Application in Libya since the Evolution

TRIPOLI – NJQ would like to announce that our office in Libya has successfully filed a trademark application for registration in Libya yesterday 16 April 2013.

This will be considered as the first trademark application received by the Libyan Trademark Office since January 2011 when the unrest started.".
On Monday of this week this blogger was greeted by quite different news:
"Libyan Trademarks Office Will not Receive Applications prior to May 2013

TRIPOLI – Despite what has been circulated by an IP firm about the Libyan Trademarks Office having started accepting new applications, Abu-Ghazaleh Intellectual Property (AGIP) would like to strongly confirm that the Libyan Trademarks Office has not yet and will not accept any new applications before May 2013.

We shall keep you informed of any developments as soon as the Registrar issues an official notification in this regard or starts accepting new applications".
Today Afro Leo reads this riposte from NJQ:
"The Trademark Office has Resumed Operations as of 16 April 2013

We are pleased to announce that the Libyan Trademark Office (LTMO) resumed its operations on 16 April 2013, after the closure of this office due to revolution. We are proud to announce that we have successfully filed the first application since the re-opening of the office for the mark "STEELMASTER" under No. 22102 in Class 2 on 16 April 2013.

According to the new regulations, all documents executed before or during the revolution need to be revised, e.g., any document bearing the consulate stamp of Great Socialist People's Libyan Arab Jamahiriya are no longer accepted. The stamp should now indicate the State of Libya ...

Additionally, the LTMO has revised the application requirements and they are now:

• Power of attorney legalized up to Libyan Consulate, and

• Certified copy of the commercial registrar legalized up to Libyan Consulate.

It's worth mentioning that a legalized copy of home/foreign registration certificate is not required anymore".
It would be good to know exactly what is happening in Libya. There may be some logical explanation of all this, but foreign trade mark applicants -- who probably constitute the preponderant majority, if not an overwhelming majority, of brand-owners in need of protection -- are generally not in a position to see for themselves what is going on and it can make them feel quite insecure.
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Darren Olivier

RSA: LES Workshop - The value of IP in divestments and acquisitions

As part of today's LES workshop entitled "The value of IP in divestments and acquisitions" which will take place at 3pm today at the offices of AECI in Woodmead Sandton (for more details email send an email here or here) I have been invited by Dr. Madelein Kleyn to comment on this recent ruling by the Competition Tribunal of South Africa on the purchase by Nestle of Pfizer's infant nutrition business.

Briefly, Nestle purchased Pfizer's infant nutrition business across 15 countries. In 9 of those countries the merger was unconditionally accepted, in 1 the conditions were minor and in the remaining 5, conditional approval had to be sought. This ruling arose out of concerns raised by South Africa's Competition Commission which treated the transaction as a 3-2 merger, which means that approval is difficult to obtain because, in general terms, it may have the effect of materially reducing the competitive environment in RSA. Indeed the Commission wished for a complete divestiture of the business (including the trade marks) by Nestle as a condition to the merger so as to maintain the current competitive position.

The reason why this particular ruling is interesting is because the alternative remedy put forward by Nestle to the Commission to secure its approval entailed some fancy footwork around the trade marks. This remedy  has its origin in Europe and involves an exclusive licence to a third party followed by a black out period by Nestle and a re-branding provision.

Most often the IP issues in a merger approval involve patents because it is a positive monopoly right that has the effect of totally excluding a party from a market. It is rare that brands are treated in such a way, generally because the view is that a trade mark does not prevent trading but simply using a brand name. In other words, rebranding is always an option and, from a competition point of view, therefore rarely a material concern. Afro Leo has always felt that such a view underestimates the value of a brand not only in lowering market entry but in establishing market entrance altogether.

The fact that almost the entire ruling centered around issues with branding, black out periods, licensing, split ownership and re-branding is therefore recognition that trade mark issues are important and relevant to merger approvals. That said, Afro Leo has several questions on the effect of the ruling (which approved the merger) that he hopes will elicit some discussion in his cameo this afternoon with the experienced and knowledgeable Dr Kleyn, who is leading the workshop. The workshop has been promoted through LES with this abstract:

"Without a doubt, critical failures and significant achievements can be made before, during and after an M&A transaction with regard to IP (technology and brands). The intention of this presentation is to point out some of the risks and opportunities that may arise. Too often the unforgiving deadlines and enormous workload characterised by an M&A transaction make it difficult to stand back from the activity and look at the so-called “big picture”; the benefits of being prepared and forewarned are inestimable. The presentation will include a discussion on practical implications of merging with another big brand including phase out and migration of goodwill – rebranding; running competing brands out of the same stable; splitting brands; co-branding issues and relevance of competition law"
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Tuesday, 23 April 2013

Darren Olivier

A Tribute to Gift Sibanda

Afro-IP received a welcome email from Craig Kahn, Spoor & Fisher reminding us of the good work that Gift Sibanda did in Office at ARIPO HQ:

Gift Sibanda – a man who has lived up to his name in Africa’s IP domain

By the very nature of their work, intellectual property practitioners are accustomed to encountering clients who are creative, inventive and visionary.  Some are excellent team members while others choose a more solitary path, blazing a trail where others see trackless terra incognita.  On the other hand, the IP specialist is seen to play a facilitative and supportive role, helping to make innovation possible, without necessarily shaping it directly.

Gift Huggins Sibanda shows precisely how false this stereotypical view can be.  During the course of a career spanning almost three decades, he has been a lone pioneer, a dedicated team player, a consensus-generating diplomat and a respected leader – while always remaining a consummate intellectual property professional.

From 2005 to 2012, Gift has served as the Director-General of the African Regional Intellectual Property Organization (ARIPO) but when he began reading for his Masters Degree at the Patrice Lumumba University in Moscow in 1980, he chose to specialise in IP law at a time when the field seemed almost irrelevant to Africa.  Despite this he persevered and having graduated he became a Formality Examiner in Patents, Trade Marks and Industrial Designs in the Deeds Department of Zimbabwe.  This time at the coal face provided valuable experience but his performance and potential rapidly led to him being seconded to the World Intellectual Property Organization to assist with the establishment of a Patent Documentation and Information Centre within the framework of ARIPO.

As a result of the success of this project, Gift was appointed as an Industrial Property Officer in ARIPO but his abilities and responsibilities went far beyond those of a pure patents specialist.  Already during his WIPO days it had become apparent that for ARIPO to succeed in its aims and objectives, it was vital that someone should drive the process of achieving buy-in from the signatory states.  So began Gift’s career as a diplomat, working tirelessly behind the scenes to garner support for the ratification of the Harare Protocol, the incorporation of the Patent Cooperation Treaty within ARIPO, and the execution of a study into the incorporation of trademarks within the framework of the organization, eventually leading to the Banjul Protocol on Marks.  Recognising the realities of entrepreneurship and innovation in an African context he also worked towards the acceptance of the utility model system, whereby the IP value inherent in relatively small inventions could be protected at an affordable cost. 
During this time Gift rose steadily through the ranks of ARIPO, being promoted to the rank of Senior Industrial Property Officer in 1992, followed by his appointment as Head of the Legal and Training Department in 2004.  While furthering the broader vision of the organization he was also intimately involved in the development of its capabilities and capacity.  This included identifying suitable premises for the organization’s headquarters in the host country, Zimbabwe, as well as negotiating the purchase of the property.  He also developed a training programme to help develop the capacity of IP practitioners within the organizations and its member states, once again demonstrating his forward-looking approach.

In 2005, Gift’s efforts and expertise were recognised by his appointment as Director-General of ARIPO.  The ability to create clarity amidst possible confusion is one of the key requirements of leadership and to this end Gift ensured that as an organization, ARIPO remained focused on its objectives. To this end he formulated six strategic goals, including resource mobilization and the enhancement of the corporate image, infrastructural development, the promotion and harmonization of IP laws, the delivery of quality services and the building of strategic partnerships and the supporting of IP policy development.

During his two terms in this post, he worked vigorously to establish strategic partnerships with states and organizations to further the objectives of ARIPO in particular and the role of IP law in Africa generally.   Where ARIPO began as an organization of Anglophone African states, under Gift’s stewardship it has taken on a more Pan-African character.  ARIPO could so easily have become a rival of OAPI, its Francophone analogue on the continent, but Gift has played a crucial role in cementing a solid partnership between the bodies, including a bilateral agreement in 1996 and an agreement on training in 2005. He also always made a particular effort to attend the sessions of the Administrative Council of OAPI, and when this was not possible, to send a suitable representative.  This has assisted Africa to present a united front when dealing with IP issues with international partners, including the Industrial Property Offices of China, the Japanese Patent Office and the International Trademark Association.

Among the fundamental criteria of patentability are that an invention must be novel, be non-obvious or inventive, and be useful or have some practical application.  Many of Gift’s innovations have satisfied these requirements while not necessarily being patentable.  Often he has come up with a new approach that others have over-looked and which has made a tangible difference to the work of ARIPO, its members and staff.  Whether it was improving Internet connectivity at the Harare headquarters or developing a search and examination strategy to reduce backlogs, Gift has shown a remarkable ability to get the spanner out of the works and the gears turning.

As a colleague, practitioner, mentor, leader and friend, Gift Sibanda will be sorely missed at ARIPO and by all those who have come into contact with him through the organization.  At the same time, he has also established such a firm foundation for the organization that its smooth running is assured, giving his successor ample scope to take ARIPO to greater heights.  Fortunately his knowledge, experience and creativity will not be lost to IP in Africa – and it is hoped that IP practitioners on the continent can look forward to the Gift that keeps on giving for many years to come.

Spoor & Fisher
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Monday, 22 April 2013

Darren Olivier

OAPI expands to 17

OAPI, the French speaking regional IP protectorate in west Africa has expanded east to include its 17th member state, effective in late May. The Comoros recently acceeded to the Bangui Agreement meaning that it is now possible to have a board meeting on the tropical islands safe in the knowledge that your IP rights will be extended to this paradise by filing a single application through the OAPI office, headquartered in Yaoundé, Cameroon. And that's not all, the savings you make through the OAPI system could well mean that you could take your entire IP department with you. Everyone is celebrating from 25 May!

This news comes from Nicky Garnett - Africa patent department head @ Adams & Adams. Merci Nicky!

Cheap flights available here.
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African Contributions in Shaping the Worldwide Intellectual Property System: a new book

African Contributions in Shaping the Worldwide Intellectual Property System, by Tshimanga Kongolo, is a handsome and original book with a title that has the capacity to surprise: can it really be that Africa has made any contributions in shaping the worldwide IP system, one may ask -- and the answer is "yes". The author explains that Africa came late to the great debate on IP and found itself faced with a package of norms which fitted its needs quite poorly. However, by identifying and promoting its interests in areas such as traditional knowledge, folklore and biological materials, the continent has carved out a place for itself in the international negotiation table, while continuing to integrate the international norms, adapted for local use where necessary.

Publishers Ashgate have this to say about the title:
"Africa is playing an increasingly more significant role in the domain of international intellectual property law, and this book underlines the contributions made by African countries as a group to the development of the current international IP system. It examines in detail their breakthrough proposals and initiatives at the WTO, WIPO and WHO with regard to IP and public health; IP and traditional knowledge, traditional cultural expressions and genetic resources; IP and biodiversity; and exceptions and limitations to copyright. 
Using Botswana, Burundi, Egypt, Ghana, Kenya, Mauritius, Morocco, South Africa and Tunisia as examples, it examines the systems under which these IP subject matters are protected. From a regional perspective, the book also analyses some initiatives taken by ARIPO, OAPI and the African Union to protect traditional knowledge and traditional cultural expressions, especially in relation to protection of the rights of local farming communities and breeders, regulation of access to biological resources, genetically modified organisms and the proposed establishment of the new Pan-African Intellectual Property Organization (PAIPO) [on which Afro-IP has taken a not inconsiderable interest: see posts here].

Demonstrating how Africa is now an active player on the international IP scene, this book will be invaluable to those interested in intellectual property law, business and commercial law, and African and international law".

The author is described as an intellectual property researcher and a former Assistant Professor, Osaka University, Osaka, Japan, whose key areas of interest are International Intellectual Property Law and global IP challenges. The publisher's web page adds: "He has published widely on these areas in books and articles in renowned international IP journals".  This would appear to be borne out by the bibliography, which consists almost entirely of the author's own writings (under the heading "Books, journal articles and chapters in books", 22 of the 26 works cited are those of the author.  Is no-one else writing on the same subjects?).

One small point: although the book has a full and helpful contents list, it is not always easy to navigate.  Perhaps more or better use could be made of headings and sub-headings, or even the introduction of numbered paragraphs, to enable the reader to recall more easily where he has got to in the author's scheme of things.

Bibliographic data: publication date, March 2013.  Hardback, xx + 319 pages. ISBNs 978-0-7546-7740-6 and Short: 9780754677406. Book's web page here.
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Kingsley Egbuonu

A review of African official IP websites: no.40: São Tomé and Príncipe

When this Leo visited the Portuguese-speaking island nation in the Gulf of Guinea last year, he found no online activity or presence for the intellectual property (IP) office. Fast-forward to 2013 and suddenly, we find a website for the Industrial Property National Service (SENAPI). 

Well, there can only be two conclusions for today's discovery: (a) The website was in existence as of 19 March 2012 but this Leo did not find it during his research (Afro Leo says, "most unlikely"); or (b) The relevant government department (perhaps, the Ministry of Planning and Development) took notice that a website is almost like a 21st century requirement for any functioning IP office (Afro Leo thinks this is more likely than not since countries (developed or developing) like to keep up with international best practices and/or standards).
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Monday, 15 April 2013

Kingsley Egbuonu

A review of African official IP websites: no.39: Rwanda

Back to Rwanda after last year's visit, we are extremely pleased to report significant developments. First, in case you wondered what the Office of the Registrar General is and responsible for, (well, apart from registering intellectual property (IP) rights) click here to learn more. Secondly, are you then looking for IP registration forms? click here to find them. Finally and quite impressive, click here for a step-by-step guide on how to obtain IP rights registration in Rwanda. 

Thanks to the UN - UNCTAD and One UN Rwanda Programme (Afro Leo not ignoring the efforts of the committed and willing Rwanda Development Board) - Rwanda is, so far in our review, the best improved country (especially, in terms of online access to information on IP rights).

IP-related news from Rwanda

IP and Innovation Centre launch in Kigali, Rwanda: The Ministry of trade and industry in partnership with the World Intellectual Property Organization (WIPO), opens a Technology and Innovation Support Center (TISC). The TISC will assist Rwandans with technical know-how and access to knowledge including worldwide IP rights database. To read more, click here
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Sunday, 14 April 2013

Darren Olivier

MIP International Patent Forum 2013 - Africa Focus

When I left the UK five years ago a mentor reminded me that Ghana and Malaysia achieved independence in the same year. His view was that Africa was beset with problems that were endemic and the relative progress of the two countries illustrated the hopeless state of the continent.

Another confidante of mine put it like this: in the context of shoe salesmen she explained, there two types of people, those that walk into a town where nobody is wearing shoes and then walk out in despair, and there are others who just see opportunity. You can decide which one you want to be.
The truth is that Africa is a contradiction of challenges and tremendous opportunity. It is also true that the stereotypical view of the continent being one of disease, famine, poverty and war is outdated. In case you have any doubts, take a peak at this Mckinsey report profiling the African consumer.

There are businesses who are forced to trade with Africa because there is little growth or resource elsewhere or because their competitors have taken them there and they risk losing out if they do not engage. There are others that see significant opportunity and there are firms who chose not to, or are precluded by regulation from doing business on the continent.
Being aware of how to use and protect IP and knowledge transfer in the Africa environment has become absolutely crucial. This week I have been invited by my firm to team up with Adams & Adam's recent outgoing Chairman and patent specialist, Dario Tanziani, to present at the MIP International Patent Forum 2013 in London, on this very topic.

With luck I will be able to share the slides but I am also hoping for an opportunity to interview Dario on what it is like to Chair a firm that has been operating in IP on the continent for over a century, at a time when there is unprecedented interest in Africa, including from competitors. 
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Friday, 12 April 2013

Darren Olivier

Libya Trademark Offices re-opens

Word from Aminou Ndala TITA, media and IP Officer for non profit organisation Taking IT Global reports from Cameroon that the Trademark Office in Libya officially re-opens nearly two years after its services were interrupted as a result of the latest civil unrest in the country. The Office is now ready to accept search requests and is expected to begin admitting new trademark applications starting May 2013.

The most important change which has taken place in the country following the recent events is related to the Libya-Switzerland relations. Specifically, Switzerland has recently established formal diplomatic relations with the Libyan government after a three-year breakdown in relations between the two countries. The implication of this development is that it will now be possible for Swiss applicants to file new applications.

This link from WIPO, sourced from JAH & Co in Qatar explains that the 

"The Trademark Office will start receive the search application from April 1, 2013 and filing new Mark applications will take place starting May 2013."

" any deadlines or priority dates which fell within the Libyan revolution will be taken in consideration."
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Tuesday, 9 April 2013

Darren Olivier

Africa IP Forum 2013 - Reflections - The Presentations

Afro Leo must congratulate the DTI on making all of the presentations available online on its website here.

The presentations from the Africa IP Forum held on 26 and 27 February 2013 are as follows - click on the links:

For some personal reflections on the Forum, please click here, here, here and here.
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Monday, 8 April 2013

Kingsley Egbuonu

A review of African official IP websites: no.38: Nigeria

During his research last year, this Leo found a dead link thought to be that of the intellectual property (IP)  office in Nigeria. Thanks to one anonymous reader, we were able to learn that the correct web address is www.iponigeria.com. Therefore, Nigeria's IP office has a functioning website - but one which needs to be reviewed, populated and kept up-to-date like the Nigerian Copyright Commission (NCC). (By the way, Afro  Leo is glad to receive on the ground whisper that the current IP office Registrar is doing a fantastic job in ensuring due process and efficiency in IPRs administration)

Nonetheless, this Leo still needs to be enlightened on the essence of the accreditation programme run by the IP office. For example, does the current list of accredited agents comprise of all the law firms who represent IPRs owners before the office? He wonders whether it is now time for the legal industry in Nigeria to carve out a separate profession for IP practitioners (Afro Leo feels that a specialist profession - such as CIPA and ITMA - would be more focused and quicker in the advancement of IP law, policy and practice as well as the interests of IPRs owners)

This blog is also delighted with the proactive NCC despite the challenges that it has to face (see page 17 of the NCC 2012 Annual Report). Although the NCC's website is not the most fanciful, one would find that it holds tangible and exciting content (Though Afro Leo would love to see the CASES COURT page populated with actual court judgments)

Another IP-relevant public body, as we discovered last year, is the National Office for Technology Acquisition and Promotion (NOTAP). NOTAP's website is still live and running; but, as it appears, there is not much currently going on. 

IP-related news from Nigeria

Political parties battle over "APC" acronym: You do not often see IP and politics in the same bed; but back in 2012, this Leo summarised an interesting dispute between a private company and Nigeria's electoral agency in a case which threatened the democratic process in Nigeria. This time, the political parties are asserting IPRs (trade mark and/or copyright). 

According to this report, this Leo learns that the African Peoples Congress, All Progressive Congress and All Patriotic Citizens have all claimed ownership of the acronym, APC. Reacting to speculations, a spokesperson for the All Progressive Congress said, "...Thus by that public announcement, the name All Progressives Congress and the acronym, APC, became our intellectual property which we shall guard jealously.’’ ("Is this how one owns an IPR? Just like a commercial entity, it is assumed that political parties obtain legal advice and conduct due diligence - at least with INEC - before choosing their names and/or logos. Anyway, we do not have the luxury of an online registered IPRs database to know if powerful and well-funded political parties in Nigeria also register their names and/or logos as trade marks with the IP office," says Afro Leo. "By the way, the Labour Party in the United Kingdom has not less than 4 UK trade marks registered to its name," he adds). 

Nigeria keen on generic drugs capacity: The National Biotechnology Development Agency (NABDA) wants to emulate the generic drugs industry in India by working with international partners for a royalty-free framework to develop and manufacture certain drugs, such as insulin, in Nigeria. Click here to read more.

Financial support for Nigeria's film industry:  The recent financial support to Nollywood from the federal government in Nigeria has got stakeholders talking, according to this report. The two key challenges facing the industry are poor distribution infrastructure and inadequate private funding (since financial institutions are yet to be convinced on IP securitisation). Click here to read more.

Collecting society drama unfolds - again: According to The Guardian, a Federal High Court in Lagos has effectively reaffirmed the Musical Copyright Society Nigeria (MCSN) as a legitimate collecting society in Nigeria. Essentially, COSON is not the only collecting society. For previous blog posts on the battle of the societies, see here, here, here and here.
Former US Representative, Ron Paul, asserts his IPR, see here
Virginia Tech says "no" to political parties using trademark, see here
Branding of political parties, see here
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Saturday, 6 April 2013

Darren Olivier

Trading in trade secrets and the art of knowledge share

I am not sure if many readers know of the IP Finance weblog but it has some fantastic stuff on all things to do with IP and money. Neil Wilkof's posts, in particular, are a treat and this one caught my eye this week - Protecting Trade Secrets - How Many Shades Of Gray Do You Need to Count?

Apart from the nebulous nature of the treatment of trade secrets highlighted by Neil in the context of a Russian-Chinese arms deal, his post coincides with an invitation by Prof Alberts to me recently, to talk on the subject at his annual IP Seminar hosted by the University of Johannesburg (see blog post here). 

This is not a subject I deal with often and very few companies that I have come across treat trade secrets management with anything more than disdain. Yet there is undoubtedly significant value to this unregistered form of IP (in my view it is a form of unregistered IP in South Africa) that deserves more attention. So, speaking on the subject was both challenging and welcome.

Under South African law protection for trade secrets lies in both contract and delict. The delictual action has its roots in the Lex Aquilia which I mention, not because it sounds grand, but because my research caused me to uncover a spat between an academic named Schiller and others over the origin of trade secret law. Schiller had postulated, controversially, that trade secret law arose out the actio servi corrupti which literally means "an action for corrupting a slave". This amused me for two reasons. 

Firstly, it sounded like the employer was at fault for corrupting his employee with information which is bizarre. However, if you think about it, the sentiment may well contain some element of truth. In much the same way that you can only blame yourself if you leave your cell phone on the dashboard and it gets stolen at a traffic light in downtown Johannesburg, the employer may only have himself to blame if trade secrets are not properly managed, and then taken. Secondly, the concept of the employee as a slave is probably further from the truth than it has ever been. Slavery of course is wrong but today the employee is frighteningly emancipated through a combination of the rights, technology and information sharing cultures that prevail. The management of trade secrets is therefore infinitely more difficult and, at the same time, probably more important than it has ever been. 

Business has become an art of knowing what to collaborate on or share, how to do it, who to partner with and how best to share the spoils. It's all about knowledge share, whether that knowledge be protected directly or indirectly by trade secrets, patents, copyrights, trade marks or any other similar type IP right.  And Africa is fertile ground for knowledge share because of the huge technological and educational divide between large parts of it and the developed world which means that there is significant potential for any business (local business too) that becomes proficient in that art and, at the same time, risk if they are not. Hence the focus locally on traditional knowledge protection.

Back to the topic of trade secrets, the conclusion reached by Neil is that: 

"[There is a] need for management education to develop better tools to teach students how to weigh the trade off between revenues and other benefits and the loss of control of one's trade secret assets."

Built into his conclusion is an acceptance that in some, perhaps most cases, there is an inevitable loss of trade secrets when doing business.

The discussions that arose out of the recent Africa IP Forum were abundant in their disparate views on knowledge share. Some felt very strongly that Africans where being exploited and IP is facilitating the exploitation whilst others don't blame IP, they just think it needs to made bespoke to our environment. The now hackneyed topic of  traditional knowledge legislation in South Africa was never far from discussion and is, in my view, little more than a legal mechanism for protecting the trade secrets of a community. If one considers TK like that, if you believe that there is significant value in TK and if you agree with Neil's conclusion, then there is an obvious need for funds and a focus on management education of communities on how to develop tools to become proficient in the art of knowledge share. My observation though based on the IP due diligence exercises that I complete in my day-to-day work, is that all businesses could benefit from such a course. 

If you are interested in my slides which were compiled with the trusty help of the Katherine Harding and Susan Olivier at Adams & Adams, they will be located here (as soon as I can get Slideshare to co-operate -   proof too that sharing ain't always so easy).

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