In March 2019
Mauritius passed the Industrial Property Act (the Act). The Act promises to
improve intellectual property systems and to facilitate ease of process in
matters concerning this sector. It aligns Mauritian intellectual property law
with international treaties such as the Madrid Protocol and the Hague Agreement.
While signed into law and gazetted, the Act has yet to come into operation as a
date has not been fixed by Proclamation. Mauritius has very recently had its
national elections and it remains to be seen whether the Act will be prioritised
by the government and thus when it will be implemented. With a view to
understand more about this new statute, we caught up with Marius Schneider, a Mauritius
based intellectual property expert and his colleague Nora Ho Tu Nam. They both offer professional services through IPvocate Africa.
When asked about
overall impressions of the Act, Mr Schneider indicated that it is a very
satisfactory piece of legislation. He indicated, for example, that the
inclusion of the Madrid Protocol into national legislation is extremely promising.
This is because most trademarks in Mauritius are registered by foreign
companies, given the small size of the country. This will change the way in
which companies do business with Mauritius in the intellectual property realm.
Schneider was asked
where the main change would come from for the practical working of the
Industrial Property Office (IPO). It is all very well to implement legislation,
we indicated, but sometimes implementation itself can be lacking and this can
impede the process of change. Schneider indicated that in this regard, change
is likely to come from practice rather than the change in the law itself. In
the wake of the reform, for instance, the European Union has apportioned funding
to modernise the Mauritian IPO, which is presently still mostly a manual and
paper based system., There is no way of having a current account and one still
has to pay fees in cheques or cash at the registry for each application.
When asked of any
barriers or inequalities faced by local Mauritians in registering intellectual
property, Schneider indicated that Mauritius was fortunate in this regard with
fair ease of process and reasonable fees. His colleague Ho Tu Nam illustrated
that the process towards the passing of the Industrial Property Bill (the Bill)
into the Act as it now stands was a very democratic one with lengthy processes
of discussion around what to include in the legislation, a long time spent in
Parliament discussing the reform and hearings being held to ascertain the views
of stakeholders.
Of course, in the wake
of change there will always be detractors with varying bones of contention.
Perhaps, indicated Schneider, the most controversial provision of the Act is
the retention of the system of national exhaustion. In a system of national
exhaustion, those who own trademarks have the right to take legal action
against goods bearing their trade marks imported by third parties, even when
those goods are original. The issue of
national exhaustion caused quite a lot of debate in the National Assembly and
amongst businesses but was finally retained in the Act.
Mauritius may be a
small country but it prizes the protection of the rights of its people. This is
all-important in any democracy and it is vital that every piece of legislation
seeks to espouse fair and just purports. By all accounts the Intellectual
Property Act appears to do just this.
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Image credit: Marius Schneider
