Friday, 31 January 2014

Caroline Ncube

RSA - Wine trademark wars - Distell v Dombeya

A few days ago the Winetimes reported that Peter Haskell's Dombeya Wines has decided change the name of its Altus bordeux to Fenix after Distell threatened litigation alleging that Altus was infringing its Alto trademark.
source: Winetimes


According to its media release, Dombeya Wines is confident that it would have successfully defended any trademark infringement suit because 'the two words are spelled differently, and whilst one is a brand that covers an estate and a range of wines, the other is merely a ‘stage’ name for a wine within a completely dissociated brand'. However, Dombeya says it realised that even if it successfully defended the infringement claim, it would not recover its full  litigation costs which were estimated at 300 000 - 500 000 rand. It therefore decided to avert the threatened litigation by changing the name of Altus to Fenix. Dombeya also had to pay Distell's legal costs thus far. Stinging from this encounter, Dombeya described it as follows in its media release:

'With teeth gritted, we reluctantly decided to tuck our tail between our legs and agree to Distell’s demands to kill off Altus. However, not merely content with achieving their goal, they then demanded that we pay their legal fees to this point, or meet them in court. So, in a twisted, 21st century,‘Man bites Dog’ role reversal, we ended up having to give money to Distell to avoid winning our case, but losing anyway.'

Distell has not released a media statement on this matter, but it would certainly describe the dispute in different terms. 
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Winetimes report here
Dombeya Wines media release 'From the ashes: Dombeya Fenix' here 
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Darren Olivier

Harms on plain paper packaging - the law of unintended consequences

In a typically erudite piece, Louis Harms has published an examination of the probable effect of anticipated plain packaging laws in Pretoria University Law Press Journal, De Jure.

He describes plain packaging as a legislative threat that will result in "unintended consequences" making the case, quite convincingly, that plain paper packaging will lead to more counterfeiting and smuggling.

"On the horizon looms a potential legislative threat to trademark law in the form of plain packaging legislation. This type of legislation typically requires that tobacco products be sold in prescribed packaging of this kind.

As appears from the illustration, the trademark may only be in the font and bland colour as indicated by the word “brand”. Such limitation, one may safely assume, will be introduced through either special legislation or an amendment to health-related laws, and not by means of an amendment to the Trademarks Act. It will begin with tobacco products but there is a real likelihood that it will spread to other products."

The entire article can be located here. For more on RSA's reaction to the intended changes in legislature click here.
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Thursday, 30 January 2014

Caroline Ncube

IP policies in Africa - no. 13 Republic of the Congo

This Leo has spent the last few days enthralled by developments relating to South Africa's draft national IP policy as it pertains to pharmaceutical patents (see AfroLeo's posts here and  here and Kingsley's post here). There is also a lot of commentary on Twitter (#pharmagate) and in the media ( for example, the Economist here and the Mail and Guardian here and here). All this Leo's going to say about this today, is that this contestation over IP policy shows just how important it is. It is thus very disappointing to find that many African states have not yet developed policies.


This week, we stop in the Republic of the Congo in search of an IP policy. The country's  IP laws and texts are listed on WIPOLex here  and based on the contents of this list, it does not yet have an IP policy.
The country still does not have a national official IP webpage (see Kingsley's post here) but information about its IP system is available on the OAPI website
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Darren Olivier

First January Post

This year's FJP highlights some of the developments on this blog in 2013. Africa continues to enjoy increasing interest and as online access is facilitated through faster connection points so are the divergent views in Africa on IP. We wish to thank our readers and contributors for their continued support and, in particular Jeremy's IPKAT for promoting the efforts of this blog.

A few stats:

Afro-IP has now enjoyed over half a million hits, has an email subscriber base nearing 800 and readership through RSS feed exceeding 100. It is promoted on Twitter though @afroip and enjoys a membership on Linkedin of 553. In 2013 there were around 250 posts with a peak interest in September exceeding 25000 hits for the month.

Some of the highlights:
We do hope that you enjoy our content in 2014 and extend an invitation to anyone who wishes to be considered as a blogger or otherwise wishes to send us content for Afro-IP, to please write to us here.


Afro Leo


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Kingsley Egbuonu

Nigeria enters the IPRs electronic administration league with WIPO?

After we heard of Kenya's new patents database, Afro-IP now learns, from this news report, that Nigeria's Minister of Industry, Trade and Investment, Mr. Olusegun Aganga, has launched an Intellectual Property Automated System (IPAS) for Nigeria's IP office. Indeed, we all should be excited but this Leo has a few questions and assumptions. 


Xmas logo
Here are some interesting excerpts from that news report: 

"For investors, the minister said their services would not only be more efficient, quicker and cheaper, but also ensure transparency and accountability." (Good, Afro Leo has heard a lot about the current system)

‪“The introduction of the IPAS will further improve and uplift the integrity and standards of all applications that emanate from Nigeria,” the minister said. “It will enhance the confidence of both the local and international communities and further encourage local and foreign direct investment in the country. This is about consumer and investment protection and it is a very good development for the country.” 

"‪He said the IPAS would equally enhance the quality of examinations, decisions and services offered to applicants and the general public, while better services would further improve the image of Nigeria. While encouraging investors, international companies and the international community to register their industrial property asset, in line with international best practice, in Nigeria, the Director of Commercial Law, Ministry of Industry, Trade and Investment, Salman Mann, said the Nigerian public would benefit from a more efficient system, which would create wealth and more jobs for the people." 

"The Project Manager, World Intellectual Property Organisation, WIPO, Hisham Fayed, said the IPAS would be the biggest in Africa, while the computerisation programme would help in improving the speed of the application for patents trademarks and industrial designs." (Aha!, Afro Leo thought WIPO was involved)

Commentary
This Leo is unsure about two things - the first one may well be trivial: (a) Was this IPAS financed by Nigeria? and (b) Is Nigeria really moving towards a publicly accessible IP database?

First, based on the headline, one would be forgiven to think that the Ministry has spent some of its budget for this. As this Leo found out (with the help of Afro Leo above), WIPO owns IPAS and has deployed it, free of charge, in some developing and least developing countries. (Are you sure they too did not get a helping hand from South Korea? asks Afro Leo) Perhaps, the news reports (including here) should have properly credited WIPO - despite the possibility that Nigeria may have spent meager sums in the process.

Secondly, Nigeria's IP office website, which this Leo thought had a free searchable database, is still exclusive to those signed up to the controversial accredited agents scheme. IP is seen as a public good; its dissemination (especially, patents) often spur further innovation and assists those seeking protection. Afro-IP will keep an eye out to see if the IP information held by Nigeria's IP office becomes public as a result of IPAS. 

In conclusion, this Leo is going to assume that our favourite UN specialist agency, WIPO, has just offered the much needed technical assistance to Nigeria. Although Afro-IP has reported (here, and here) on past attempts by Nigeria to go digital, we should take this seriously as one to be maintained for a considerable period of time - perhaps, subject to WIPO's funds not drying up quickly. 
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For WIPO's global IPRs database ambition, see here and issues Nigeria should consider when contemplating on the dissemination of patent information are here

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Wednesday, 29 January 2014

Darren Olivier

IP Movers - recruiting in JHB

Afro-IP just received an email from international legal recruitment firm Laurence Simons "...to ask [I deleted "shamelessly"] if you have any people in your legal network that may be interested in a Head of Legal role for a globally recognized food/retail brand. The role is based in Jo'Burg, covering the whole of the Country, and will likely require someone with decent exposure to Franchising agreements and the like. 

I just wondered whether you may know anyone who may be interested in something like this?"

If you are interested or know somebody that is, Ben is your man and he can be contacted here. The actual job spec can be located here (and the salary does seem competitive).

Please let Ben know that you heard about the role through Afro-IP. There is no charge or cut back for us. This post is simply our enthusiasm for an apparently good IP based in-house role and the attention of an international recruitment firm in the continent. 

Yip, the action is now in Africa. And, Jo'burg well ... it's Africa's Berlin. Check it out here.

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Tuesday, 28 January 2014

Jeremy

Beyond the COSON, BON/IBAN dispute

Here's a guest post from Olumayowa O. Adesanya.  Olumayowa, a legal practitioner, is currently pursuing a Masters in Law programme with a specialisation in Intellectual Property at Queen Mary University of London.
Beyond the COSON, BON/IBAN dispute 
Whilst browsing through some of my favourite gossip blogs in December 2013, I came across a story on the discord between the Collecting Society of Nigeria (COSON) on the one hand and Broadcasting Organization of Nigeria (BON) and Independent Broadcasters Association of Nigeria (IBAN). A statement had been issued to the effect that radio and television stations under the aegis of BON/IBAN were to refrain from playing tunes of artistes under COSON (who happen to be in the majority of topmost artistes) due to what they termed as ‘the antagonism and harassment under the leadership of Tony Okoroji (COSON Chairman)’. I thought it preposterous and did not give it much thought until I heard an On-Air Personality (OAP) deny a caller’s request for a particular song as it was by an artiste affected by the ban. 
From the parties involved, the reason for the dispute is immediately obvious: payment of royalties for broadcast music. In 1993, the Music Copyright Society of Nigeria (MCSN) had applied to the Nigerian Copyright Commission (NCC) for registration as a Collecting Society, which was denied. The Performing Mechanical Rights Society (PMRS), which would later morph into COSON, was granted the right to operate as a Collecting Society in 1995. In 2005, however, MCSN was issued a license to operate as a Collecting Society. This license was withdrawn after a period of three months without an explanation. As such, MCSN, NCC and PMRS (now COSON) have been at loggerheads over the years as to the legality of either party to operate as a Collecting Society as well as the legality of having a sole Collective Management Organisation (CMO). With the matter still before several courts in Nigeria, it would be sub judice to comment on the issue any further.   
However, it would appear that the broadcasters who have always been antagonistic towards the idea of paying royalties decided to take advantage of the situation. This is in addition to various arguments put forth by the broadcasters over the years to avoid their legal obligation as regards payment of royalties. In the era of MCSN and PMRS, they had argued for a sole Collecting Management Organisation (CMO) to represent the collective interest of musicians who they could deal with. With the approval of COSON came the argument of ‘arbitrarily imposed and concocted fees which are not based on any agreeable and verifiable tariff & standards’. Popular opinion held by a number of broadcasters is what they perceive to be their role in promoting artistes. ‘Why then should we be forced to pay royalties to these artistes who practically beg us to play their music’, they argue. This position of course lends itself to the argument against copyright as whole. 
Not disputing the claims of broadcasters, as there are instances where (upcoming) artistes have had to pay OAPs for airplay, the broadcasters also fail to acknowledge that these same artistes provide content. In fact, most radio stations tout themselves to be ‘music’ stations with less talk and less adverts. Owing to lax enforcement of legislation, broadcasters have gotten away with not paying little to no royalties over the years and are bound to resist any move to change the status quo. 
With the Radio, Television, Theatre and Arts Workers Union of Nigeria (RATTAWU) aligning themselves with the broadcasters against COSON, other stakeholders had to wade in to manage the crisis brewing in the music industry. 
The Nigerian Broadcasting Commission decided to tackle the issue by re-iterating the provisions of Article 3.13.2.2 of the Broadcast code, which broadcast stations were bound to run afoul of in consequence of carrying out the ban. The provision states that: 
For the purpose of free-to-air broadcast, Nigerian music shall constitute 80 per cent of all music broadcast. 
NCC stood by its approval of COSON as the sole Collecting Society and emphasised the provisions of the Copyright (Collective Management Organisation) Regulations 2007, which enjoins an aggrieved party to apply to NCC for a review of fees to be paid as copyright royalties. 
The lower house of the National Assembly, the House of Representatives also waded into the matter. In a unanimous voice vote, a motion was passed directing BON/IBAN to withdraw the December 15 directive and mandated the House Committees on Information, Judiciary and Justice to intervene in the matter and report within a month. 
It would appear following the intervention of stakeholders and a series of meetings that both parties have sheathed their swords as most of my favourite artistes have had their songs receive airplay in the past couple of days. A joint committee of NBC, NCC, COSON, BON and IBAN is to be set up with a mandate to review all copyright royalty tariffs with respect to broadcast of musical works and sound recordings and to ensure that the royalties paid by broadcasting stations in Nigeria are fair , reasonable and in accordance with prevailing standards. 
That the broadcasters could hold the music industry to ransom is indeed worrisome. However, certain questions remain unanswered: 
  1. Do the broadcasters pay royalties to artistes not signed under COSON?
  2. Do the broadcasters par royalties on foreign music played?
  3. If yes, to whom and at what rate?
  4. Do other bodies/groups pay royalties?
Ultimately, the resolution of all pending judicial disputes between MCSN, NCC and COSON would be the starting point in resolving this brouhaha as MCSN still claims to own the copyright in a very large repertoire of Nigerian and foreign music. The ownership of which is backed by valid and subsisting agreements, deeds of assignment and contracts of reciprocal representation duly entered into between MCSN and concerned assignors, licensors and creators.
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Friday, 24 January 2014

Darren Olivier

South Africa - more on pharma controversy

There is something in the rooibos at the Union Buildings this week. Some twist in that famous tea that has emboldened South Africa's ministers. Whether it be lambasting the national soccer players as "a bunch of losers - unbearable, useless individuals" or telling off big pharma for masterminding a campaign of "satanic proportions", their outbursts have caused controversy.
 
Commenting on the pharma debate (see background posts here and here), Danie Dohmen, a partner at Adams & Adams was recently quoted in WIPR saying that "the advocacy groups who are “essentially calling for a weakening of the patent system” are themselves “well -funded and have a well-developed” strategy.

"The irony is that it is their advocacy campaign which resulted in the innovator organisations [big Pharma] having to consider similar strategies to have their perspectives on the matter heard,” Dohmen told WIPR.
Adding his view on the draft policy:

Dohmen


"One of the concerns [with the draft policy] is that some of the proposed policies will result in a weakening of the patent system which is likely to have a negative effect to the long term access to new medicines in South Africa.

“If patent rights are eroded the incentive for manufacturers to seek improved drugs and to bring them to market in South Africa will also be eroded and future South African generations will probably not have access to the required new and improved products.”

Dohmen added: "There is a lot of misinformation on the current South African patent law and its effect on access to medicines. Any campaign which would result in an honest, open, informed and rational discussion on these aspects should be encouraged.

"There is still a long road to go before any of the draft policies find their way into legislation and it is thus important that all interest groups are allowed the opportunity to voice their concerns and for the issues to be properly debated and considered."
 
You can read the full WIPR report here.
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Thursday, 23 January 2014

Kingsley Egbuonu

What happened to Recommendation 5 of the Gowers Review? -- A Commentary

So, what does this Leo think about recommendation 5 of the Gowers Review?

First, he is not really sure if the UK Government expressly accepted it or whether it was one of those proposals where a position is not taken but something is done here and there when possible. Secondly, it was not that exciting: the first limb is a given, while the second limb is unconvincing. Further, "helping them to take advantage....." and "encouraging them to make positive use" are two phrases which, respectfully put, can easily be satisfied by running IP seminars.

Fully or partially funding an ICT infrastructure, e.g. a database-enabled website which can be used in disseminating information in patents, could have been much more tangible and exciting. (Ambitious indeed; remember that there are 54 countries, says Afro Leo) This Leo suggests so because it would not surprise him that most (if not all) IP offices, IPRs owners and practitioners across Africa - where there is considerable amount of IP work - would prefer to substitute the difficulties of storage rooms and piles of paper for a versatile database-enabled website. Well, that is easier said than done, for various reasons. (If the UK has some funds for that sort of project, Afro Leo would suggest ARIPO and OAPI as candidates - although too late, the former would be favourite).

The difficulty
WIPO plays the key role in the grand scheme of things but bilateral IP technical assistance has never been an easy and straightforward subject-matter. (Afro Leo tells me that WIPO would be delighted to see developed-country WTO members do more bilaterally). We all can easily agree that IP technical assistance is the last thing on the minds of the UK Government and its African counterparts when contemplating on how to spend scarce development funds. Also, since the European Union (EU) generally takes center stage in development activities (including within WIPO) on behalf of its member states, it is difficult to criticise (in whatever form) the UK Government - who contributes to the EU and multilateral entities for development efforts across the globe.

An impact assessment on IP technical assistance in 2011 tells us that such assistance should not be seen or offered as a one size fits all: one country may require assistance with drafting IP legislation, and another in need of financial assistance to fund an ICT project for its IP office. (Isn't it the case that developing and least developing countries would have to specifically request for technical assistance; or do they just accept the affordable thing on offer? Afro Leo asks). Anyway, it is not that the UK was that eager to lead the pack before now or has become enthusiastic all of a sudden on IP technical assistance; but, the risk of not keeping up leaves notable economies such as BrazilSouth Korea and Japan to quietly take on the mantle of leadership in this area. (Afro Leo tells me that the UK Government takes foreign aid seriously and is proud of it).

Conclusion
To cut the long opinion short, recommendation 5 was never groundbreaking; nevertheless, the UK's efforts are commendable. As the last sentence of the UK IPO's response highlights, this Leo expects the sort of IP technical assistance activities we have seen thus far from the UK to continue without a reminder from a future IP law review. They may well come in various forms and from different entities such as the Department for International Development (DFID). Considering the exciting news from ARIPO on its ICT project, the UK may well look towards future assistance in this much needed area.

Ultimately, it is time for African countries (with South Africa expected to spearhead) to also consider looking inwards for IP technical assistance. By the way, Afro Leo wants to know what happened to Nigeria's own copyright review.

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To read more about the Ethiopia Trademarking and Licensing Project (with Light Years IP), click here
The Light Years IP's report (supported by DfID) into the export of African agricultural products, see here
To see how UK aid is distributed, see here and here
BRICS launch their own IP plan, see here
See if you can find anything on Nigeria's copyright review hereherehere and here
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Wednesday, 22 January 2014

Njuguna

Kenya's Industrial Property Tribunal revokes Sanitam patent on sanitary bin

Afro IP has been informed that the Industrial Property Tribunal delivered a ruling yesterday revoking the (notorious) Sanitam patent AP773 granted in 1999 by ARIPO.

More detailed analysis of the case will be posted once the Tribunal's ruling is available.

Previous posts relating to the revoked patent:
ARIPO's first patent appeal decision
Sanitary patent wars
Tribunal has no mandate to revoke ARIPO patents ,
Tribunal has mandate to revoke ARIPO patents
Sanitam obtains interlocutory injunction against Bins ltd

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Isaac

New Database of Issued Patents

The Center for Intellectual Property and Information Technology (CIPIT) at the Strathmore Law School in Nairobi, today announced the launch of a new database (linked here) of issued patents in Kenya. The database is the first of its kind in East Africa and currently contains searchable full text for about 1/3 of all Kenyan issued patents, as well as downloadable PDFs for each patent.
The oldest patent database, perhaps?

If you've ever asked the question "what are people patenting in Kenya?", as this Leo has done many times, now you can get a clearer picture!

CIPIT is working to obtain additional patents (from Kenya and beyond) for the database. If any readers can help, please contact CIPIT or leave a comment to this post.
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Kingsley Egbuonu

Access to medicine and patents: One African country decides to take 'real' action

This Leo finds the public tussle between the South African (SA) Government and pharmaceutical giants fascinating. Fascinating because it appears as if the SA Government really cares about its people - rather than divert attention as seen in other African countries

Afro-IP has been following the mooted SA's IP reforms for a while (e.g. here) and to add to yesterday's post, readers may wish to watch this CNBC Africa interview with South Africa's Health Minister, Aaron Motsoaledi, who valiantly responded with recognised points in the access to medicine and patents discourse. Others may label it 'trash talk'; but this Leo was particularly impressed when Mr Motosoaledi said this: "We're not doing something that is illegal; that is not done internationally. We're doing something that we have never done; we did not do for a long time and it disadvantaged us and we want to correct it." (Just in case this Leo have not transcribed correctly, you can listen from 9:00 to 9:50.)

Well, South Africa have actually done a thing or two with compulsory licensing (as well as using other mechanisms) to bring about affordable medicines. Perhaps, the current legal framework is too rigid for it to achieve the desired public health goal, hence the call for reform.

India seems to have given hope to other developing countries (and its BRICS fellow, South Africa) in the compulsory licensing game. Only time will tell as to its health and economic impact.

Is this a wise move and should other African countries follow suit?
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  • For Compulsory Licenses for pharmaceuticals: An inconvenient truth?, see here
  • What limitations does TRIPS put on compulsory licensing?, see here
  • For WTO's frequently asked questions (FAQs) on compulsory licensing of pharmaceuticals, see here
  • TRIPS and public health (Doha Declaration), see herehere and here
  • Patents, Parallel Importation and Compulsory Licensing of HIV/AIDS Drugs: The Experience of Kenya, see here
  • The South Africa AIDS Controversy: A Case Study in Patent Law and Policy, see here


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Monday, 20 January 2014

Darren Olivier

South Africa takes on big pharma but at what risk

Reuters here
Fresh from a break and an office move to Johannesburg, this blogger wishes all Afro-IP readers belated best wishes for 2014. 

Gripping news this week is South Africa's response to news of big pharma's campaign against the draft reforms in the IP policy document reported on extensively by Afro-IP late last year (search "IP Policy notes").

The Minster of Health has called the leak of IPASA's planned campaign a "conspiracy of satanic magnitude". In response, big pharma are saying that they will reduce investment in the countryYou can read all about it here, here and here.

This row comes at an interesting time for the generics industry in South Africa and the local drugs industry in general. The latest reported news on the planned takeover of one of South Africa's major generics, Adcock Ingram, is that the Public Investment Corporation (PIC) intends vetoing the deal next month. Commentators are suggesting that it may just be that PIC do not want a South African asset to be owned by a Chilean company. 

These two developments may be completely co-incidental but is there not a real risk that read together and bearing in mind RSA's other protectionist IP laws and ongoing labour problems, any overseas investor right now with a wad of cash to spend in Africa in the pharma sector (generics or not) is going to feel that South Africa is an inhospitable, unrewarding destination? Is this good for access to life saving drugs?

Please look out for the traditional First January Post, coming soon.
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Kingsley Egbuonu

Drumming up support for geographical indications (GIs) across Africa: The EU Commission gets to work


In 2012, Afro-IP brought you the news that the European Commission and the African Regional Intellectual Property Organization (ARIPO) signed a Memorandum of Understanding on the protection of traditional agricultural products from specific geographical locations or with specific characteristics. Both entities agreed to work together in promoting geographical indications (GIs), including building a legal framework for GIs - under which Africans would have to protect European GIs.

Today, this Leo has just learned of a joint conference organised by the Uganda Registration Service Bureau (URSB) in association with others including, not surprisingly, WIPO, EU and ARIPO. The conference, as reported, was set up to rally African countries to (obviously) "...embrace IP and particularly GI’s so as to fully benefit from the marketing on the international scene items that are unique to Africa such as agricultural produce..."

“...Agriculture is one of the areas where Africa has comparative advantage and we could brand our products after value addition and tap on the benefits,” Fernando Dos Santos said. (Well, Afro Leo understands that the African continent is home to 60% of the world's uncultivated arable land; so there lies opportunities)

Commentary
What are African countries doing to protect certain valuable and unique agricultural produce and products? Are they now waking up? Like fellow blogger, Jeremy, said in the 2012 post, the EU has a significant stockpile of GIs which are well-managed. EU GIs are worth about  54 billion Euros worldwide and their holders would obviously love to further protect their rights across the world and it is the job of the EU Commission to spearhead this mission.

Rooibos is a perfect example of how African countries typically may have taken eyes off their valuable resources (South Africa's wine industry not so much so as it has its eyes on the ball). Even more worrying is what could happen to producers or businesses in African countries when the EU come knocking with its own GIs. A notable African country which has taken the pains to commercialise its produce is Ethiopia (see here and here) - albeit not using the GI framework. This Leo also found out that Morocco has a few GIs lined up for protection within the EU including the widely publicised GI, Argane oil.

The EU has, helpfully, cited a few potential agricultural products from the African continent which could be protected by GIs. Most African countries do have legislation which allow for GI protection in various forms but management costs may well hamper efforts. This Leo is not too cynical about this development as the EU has a long historical experience in GIs and perfectly suited to advise others on the system. (Afro Leo tells me: 'EU GI holders see the system as an effective regime for protection and wish to advance it outside the EU')

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  • To learn more on EU GI sensitisation programmes with African countries, see here
  • A good textbook for those interested in research in this area: Extending the Protection of Geographical Indications: Case Studies of Agricultural Products in Africa by Michael Blakeney, Thierry Coulet, Getachew Alemu Mengistie and Marcelin Tonye Mahop (Routledge, 2013)
  • For a primer on GIs and AO, see here and EU manual on GIs, is here
  • Africa Union Commission and the EU Commission to work together on food and farming research, see here but EU-Africa trade deal about to stall, here
  • Euro experts to help find African minerals, see here
  • Colombian Coffee Protection: The Growers' Experience, see here


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