Friday, 1 August 2014

Should we consider Western Sahara in IP discourse or practice?

What can one learn via Twitter? Well, sometimes you can learn about the meal your follower is about to have, or more importantly, a thing or two about geopolitics on the African continent. This Leo has been musing on the latter for quite some time.

Image result for western sahara
Looks familiar?
According to Africa Check, “...there are 55 states that are internationally recognised and members of either the AU or the UN or both. Fifty-three of these belong to both the AU and UN lists. Morocco is not part of the AU but is a member of the UN. The Saharan Arab Democratic Republic is part of the AU”.

Where and what is Western Sahara ("territory")?
        Afro Leo picked this up!

This Leo won't bore you with the convoluted details, as he can't even get his head around it. Wikipedia saves the day here. Basically, it's a disputed territory which is also referred to as 'the last colony in Africa'.

Review of 54 African official IP websites (2011 - 2013)
So, why didn't this Leo pick up this territory during this two-year project? Because he mainly relied on WIPO’s database, though he spotted it on Wikipedia

Summary of how the territory is viewed 
Skimming through the basic web information found, the widely held view is that Morocco claims and exercises sovereignty or jurisdiction (here and here) over a substantial part of this territory. To see what some say, click here.

The EU
A post by the FT argues that the EU-Morocco Fisheries Partnership Agreement - which neither mentions nor excludes the territory (also see EFTA, and take note here) - strengthens Morocco’s claim. For the views of a few EU countries, see below.

The U.S.
It seems no one is exactly sure of their official position; it’s almost like: let’s see what happens next. [cf. here where experts say that the Morocco-US free trade agreement excludes the territory] If interested, there might be valuable information on the U.S. position here and here.

For the sake of TRIPS, this Leo discovered that Western Sahara isn't a WTO member. He understands that a state or customs territory needs to have 'full autonomy' over its trade policies to be considered for membership.

Since the UN recognises Western Sahara as a non-self governing territory (also see here or here), how does its specialised agency handle it? A key discovery is that WIPO cautiously prescribes the two-letter country code 'EH' for this territory for international applications. Has any brave IP practitioner ever used it? [NB: Gibraltar has one too, 'GI'. At least, Gibraltar governs itself, albeit that IP rights covering its territory are administered by the UK IPO]

What some African IP law firms say
According to Smit & Van Wyk, the administration or adjudication of IP rights covering this territory is handled by Morocco's IP office or court, respectively. Other firms such as Adams & Adams and Hahn & Hahn Inc also tell us that prior to December 2004, Morocco had more than one zone which meant that separate IP applications had to be made to cover the entire Kingdom.

Going by the AU, one could be forgiven for thinking that Western Sahara is a separate territory to consider for IP protection. This Leo couldn't find any current and credible information to prove, or even suggest, that Western Sahara has its own IP regime. Rather, the finding is that IP rights granted by (or designating) Morocco covers all territories or regions to which it claims jurisdiction or sovereignty over.

Till September, enjoy the weekend and school holidays. 
Further reading
UK Government’s advice on business risks in Morocco (including Western Sahara) is here
For a historical context of Western Sahara, see here and here.
For the split within the EU Parliament over Morocco-EU trade deal, is here, here and here
Some UK Parliamentarians not happy over EU's trade deal with Morocco here


Daniel Smart said...

Morocco claims the 'territory' as it's own, the Southern Provinces I think it calls them. It also administers the majority of the area and would consider the Moroccan trademark law to cover it automatically.
If I remember rightly, Morocco has a number of locations (Chambers of Commerce or central libraries or similar, I believe) where trademark applications can be filed (similar to Italy in this respect). One of these is in Western Sahara's capital, El-Aaiún.
There is a strip of territory not under the control of Morocco, the 'Free Zone', where it's unlikely that Moroccan trademark rights are enforceable. I don't believe there's an IP law, and although there's a government press service (see: I've never known any Cautionary Notices to be published.
The Free Zone has a small population (although getting figures on this seems impossible) and is not of commercial importance to the vast majority of brand owners it would appear.
When it was a Spanish colony, Spanish registrations would have covered Western Sahara, so I believe. I would doubt this is still the case today, even for Spanish registrations that were in force prior to the Spanish withdrawal.
Furthermore, it's not possible to register .eh domain names.
I hope this is helpful.

Kingsley Egbuonu said...

Daniel, many thanks for sharing the knowledge.