Africa achieves a landmark outcome: WIPO’s historic new Treaty to combat biopiracy

Africa achieves a landmark outcome: WIPO’s historic new Treaty to combat biopiracy

By Afro Leo   Thursday, December 11, 2025   No comments:

By Wend Wendland^[1]

 

African plants, marine life and microbes have frequently been targeted by companies bioprospecting for new medicines, cosmetics and agricultural products – often without prior and informed consent, acknowledgement and benefit-sharing, a practice known as ‘biopiracy’.^[2]

It was for this reason that African countries were at the tip of the spear in a decades-long struggle to introduce an important change to patent procedure that resulted finally in a new Treaty adopted by all the members of the World Intellectual Property Organization (WIPO) at a Diplomatic Conference in May last year: the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.

For many years, an intergovernmental committee of WIPO (known as the ‘IGC’) conducted the negotiations that led ultimately to the Treaty’s adoption.^[3]

What the Treaty says

The most significant change brought about by the Treaty is that it requires patent applicants to disclose the origin or source of genetic resources and associated traditional knowledge their inventions are based on.

 

This new disclosure obligation will lead to greater transparency about the commercial use of a country’s biodiversity and what benefits are being created and for whom, triggering inquiries into whether national access and benefit-sharing regimes have been complied with – and, if not, this information could lead to benefit-sharing that might not otherwise have occurred. Provider countries, Indigenous Peoples and local communities will then stand to gain a greater share of the monetary and non-monetary benefits that arise from the commercialization of their resources. 

In this way, the Treaty contributes to environmental justice.

 

Further, specific language proposed by Indigenous Peoples’s representatives resonates throughout the text, and they will play a role in the Treaty’s implementation. In this way, the Treaty contributes to social justice and procedural equity.

 

This new transparency requirement will also help reduce uncertainty about the validity of patents over bio-based inventions. This will lead to higher quality patents and greater trust in the patent system.

 

Africa’s leading role

 

A stand-out feature of the Treaty is that it is the first intellectual property treaty for which developing countries were the proponents. For one of the first times in the history of international intellectual property law, they were not policy-takers but policy-makers. This may be intellectual property’s first truly pro-development treaty.

 

Indeed, developing countries, as well as Indigenous Peoples and local communities, called for such a new patent disclosure requirement for over 25 years and they in particular have hailed its adoption.

 

Africa played a leading role in the long and winding journey to the Treaty. I am reminded in particular of the contributions over the years of figures like Philip Owade from Kenya who chaired the IGC from 2009 to 2011, Vivienne Katjiuongua from Namibia who chaired one of the two key negotiating tracks at the Diplomatic Conference and negotiators such as Yonah Seleti, the late Tom Suchanandan and Shumi Pango (South Africa); Pierre du Plessis (Namibia); Catherine Bunyassi Kahuria (Kenya), Chidi Oguamanam and Ruth Okediji (Nigeria); Paul Kuruk (Ghana); Amadou Tankoano (Niger), Mohamed Bakir (Algeria) and Georges-Rémi Namekong (African Union), to name only a few.

 

Prospects for the Treaty’s success

 

Africa is leading the charge too in bringing the Treaty into force.

 

Among the 44 countries that signed the Treaty within the one-year period allowed for signing, the majority are African.^[4]

Signing the Treaty does not mean countries are bound by it, however. Countries become bound by treaties when they either ratify or accede to them.

 

This Treaty will come into force three months after 15 countries have either ratified or acceded to it.

 

So far, two countries have joined the Treaty (Malawi and Uganda).

 

The influence of the Treaty on the continuing negotiations in WIPO on the protection of traditional knowledge more broadly and traditional cultural expressions is at this stage unclear, yet expectations are high.

 

It is too soon to make predictions about the success of the Treaty – however that may be judged.

 

While the Treaty’s adoption last year was a momentous milestone in the evolution of the patent system, it is critical that the Treaty comes into force as soon as possible.

 

Countries should therefore now show their commitment to the Treaty by joining it and bringing it to life.

 

---

[1] Wend Wendland was for many years a Director of the World Intellectual Property Organization (WIPO). He is now an independent expert working at the intersection of intellectual property and global issues such as biodiversity, cultural heritage, agriculture, health and Indigenous Peoples. He is also an Adjunct Professor at the Law Faculty, University of Cape Town, South Africa. He is contactable at wend@wendwendland.com and his website is at https://wendwendland.com

[2] African Centre for Biosafety, ‘Pirating African Heritage: The Pillaging Continues’, 2009; Jay McGown ‘Out of Africa: Mysteries of Access and Benefit Sharing’ (Edmonds Institute, 2006).

[3] WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC)

[4] See https://www.wipo.int/export/sites/www/treaties/en/docs/pdf/gratk.pdf

 

 

The author’s book The Journey to the WIPO Treaty on Genetic Resources and Associated Traditional Knowledge: Policy, Process and People (Edward Elgar, November 2025) provides an insider’s account of the colourful and eventful journey to the Treaty’s adoption from the first proposal at WIPO for a new patent disclosure requirement in 1999 to the adoption of the Treaty 25 years later. It analyses the Treaty and its negotiating history, lifting the curtain on how its adoption by consensus was achieved, identifying the key individuals involved and providing insights into how the Treaty’s ultimate success may be judged and achieved. The book is now available on the Edward Elgar Publishing website. For a limited period, get a 35% discount by using the code WEND35 at checkout.

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When Logic Isn’t Logik: The SCA Puts Out the Fire (Again)

When Logic Isn’t Logik: The SCA Puts Out the Fire (Again)

By Afro Leo   Wednesday, December 03, 2025   No comments:

South Africa’s law of passing off has had a fiery year. Hot on the heels of the Phoenix decision comes another brand-identity flare up from the Eastern Cape, this time between Fire Logic and Fire Logik. The Supreme Court of Appeal has now weighed in, and its message is simple: if you adopt a near identical name in the same industry, ignore warnings, keep confusing online identifiers alive for years, and offer little more than a shrug in response, do not expect to escape an interdict.

 

For those following the earlier High Court decision, the SCA’s judgment confirms the outcome while adding clarifications about reputation, bare denial strategies, and the evidentiary role of digital identifiers.

 

A Quick Recap: The Fire That Wouldn’t Go Out

Fire Logic, established in 1994, is a long standing Eastern and Western Cape business providing fire protection and maintenance services. It put up credible evidence of turnover (around R30m per year), advertising spend, industry accreditation, and more than 27 years of trade.

 

Logik Group, incorporated in 2015, traded under Fire Logik. The names were phonetically identical, visually similar, and used in the same markets. Even after a name change in 2016, Logik Group retained the domain, email address, and trading style. Confusion followed in the form of misdirected purchase orders, enquiries, and correspondence acknowledging the risk of confusion.

 

The High Court interdicted Logik Group’s use of Fire Logik in the Eastern and Western Cape. Logik Group appealed.

 

The SCA: When Logic Goes Missing

The Supreme Court of Appeal dismissed the appeal with costs and reinforced principles worth noting.

 

1. Reputation Need Not Be Over Proven

The SCA adopted a practical view. Twenty seven years of trade, turnover, marketing spend, and industry accreditation were sufficient. Reputation may be inferred from sales and advertising. Logik Group’s approach of denying everything was treated as an impermissible bare denial.

 

2. Digital Footprints Count

Despite the name change, Logik Group retained info@firelogik.co.za and www.firelogik.co.za and continued using Fire Logik in its online presence and tender submissions. The court treated these digital identifiers as part of the actionable get up.

 

3. Misrepresentation Was Clear

Phonetic and visual similarity, overlapping territories, prior notice, actual confusion, and acknowledgement of likely confusion all supported the finding of misrepresentation.

 

4. Territorial Interdicts Follow Territorial Evidence

Reputation was proven in the Eastern and Western Cape. The interdict was limited accordingly. Territoriality still matters.

 

Practical Lessons

For brand owners

• Include domain and email checks in name clearance.

• Implement undertakings promptly.

• Preserve evidence of confusion.

• Remember that reputation accumulates.

 

For litigators

• Challenge bare denials.

• Use digital evidence.

• Build the territorial record if broader relief is needed.

 

For defendants

Claims of attempted rebranding without evidence are unlikely to succeed. Inexpensive digital changes undermine arguments based on delay or resource constraints.

 

A Final Thought: When Logic Meets Logik

Passing off remains contextual. Reputation need not be exceptional. Misrepresentation need not be intentional. Damage need not be quantified. The question is whether market reality creates confusion. Here, the public was left to decide whether fire logic was logic about fire or logik about fire. That burden, the SCA held, is not lawful.

 

The appeal was dismissed.

 

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When a Phoenix Rises… Twice: Passing Off in the Gauteng High Court

When a Phoenix Rises… Twice: Passing Off in the Gauteng High Court

By Afro-Corne   Tuesday, December 02, 2025   No comments:

The South African logistics sector saw an unexpected mythological cameo last week when the High Court (Johannesburg) handed down judgment in Phoenix International Logistics (Pty) Ltd v Blaque Cherry Logistics (Pty) Ltd t/a Phoenix Logistics SA. In this case one logistics business accused another of rising a little too closely from its own brand ashes. (Case link to follow as soon as it is on Saflii).

 

What followed was a neat illustration of passing-off principles, a reminder that even everyday words can become distinctive in the right commercial nest, and a warning that a rebrand is not a resurrection unless your public-facing footprints are properly swept away.

 

The Background: When Two Phoenixes Occupy One Perch

 

Phoenix International Logistics has been trading under its name since 2005 which is a substantial uninterrupted nineteen-year run in a notoriously relationship-driven industry. The respondent, Blaque Cherry Logistics, later began trading as “Phoenix Logistics,” prompting the applicant’s November 2023 cease-and-desist. The respondent’s attorneys initially folded almost instantly, undertaking to “immediately refrain” from using the name.

 

But instead of a clean break, the respondent rebranded to “Phoenix Group SA” which is a move that may have sounded different internally, but, as the Court later explained, looked very much like the same bird to the average consumer.

 

Then, in 2025, nearly two years after the undertaking, the applicant discovered:

 

• A SARS cargo carriers list still identifying the respondent as t/a Phoenix Logistics 

• A professional profile of the respondent’s sole director reflecting Phoenix Logistics 

• The respondent’s website trading as Phoenix Group SA

 

This sparked a supplementary affidavit, objections, counter‑objections, accusations of tactical manoeuvring, and a “complex factual substratum.”

 

Procedural Sparks: The Court Lets the Evidence In

 

The respondent attacked the applicant’s supplementary filing as a late-stage rescue attempt. It also cried non‑joinder, complained about a confirmatory affidavit dated before the founding affidavit, and challenged the authenticity of the SARS listing.

 

The Court allowed the supplementary evidence regardless, emphasising that it was recent, relevant to ongoing conduct, and caused no prejudice because the respondent had fully answered it.

 

The Legal Core: What Makes a Phoenix Your Phoenix?

 

South African passing‑off law requires:

 

1. A reputation at the time the respondent entered the market 

2. A misrepresentation likely to deceive 

3. A likelihood of harm 

 

The Court found all three comfortably established.

 

Reputation? Yes — 19 Years of It

 

The respondent never seriously disputed that the applicant had goodwill in “Phoenix International Logistics.” The judge noted that, while “Phoenix” is a common word, it served as the distinctive identifier in combination with “International Logistics.” The Court stressed that this did not create a monopoly over “Phoenix” in all trade, only within logistics.

 

Misrepresentation? The Dominant Element Carries the Day

 

The Court held that:

 

• “Phoenix” is the dominant, memorable element of both names 

• “Group SA” and “International Logistics” are generic descriptors 

• Both operate in the same field 

 

A consumer might assume affiliation, a division, or a rebrand, all classic passing‑off risks.

 

Residual Confusion: The SARS Listing Becomes the Smoking Feather

 

The SARS entry dated October 2025, showing t/a Phoenix Logistics, became decisive. It contradicted the respondent’s assertion that all confusion had been cured by January 2024. Combined with the director’s professional profile still referencing Phoenix Logistics, the Court found clear evidence of continuing misrepresentation.

 

Order: This Phoenix Must Find a New Nest

 

The Court granted a final interdict prohibiting the respondent from using:

 

• “Phoenix Logistics” 

• any name incorporating “Phoenix” that is confusingly similar in the logistics sector 

 

It also ordered the respondent to update SARS and all registries within 30 days and awarded costs including two counsel.

 

Critical Eye: What Does This Judgment Mean?

 

• The Court did not grant a word monopoly, only sector‑specific protection 

• The SARS and online evidence showed current, not historical, misrepresentation 

• The Court based its reasoning on likely confusion, not mere association 

• The initial undertaking supported the applicant’s reputation in context 

• Common-word arguments fail where long use creates distinctiveness in a field 

 

Afro‑IP Takeaways

 

1. A mythical bird can become a trade identifier. 

2. A rebrand must be thorough, not cosmetic. 

3. Courts favour updated evidence in ongoing passing‑off disputes. 

4. Sector context matters more than company register statistics. 

5. Perception rules: consumers rely on imperfect recollection; businesses must rely on perfect name hygiene.

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King V and the Future of Intellectual Property in an AI Driven Africa

King V and the Future of Intellectual Property in an AI Driven Africa

By Darren Olivier   Monday, November 03, 2025   No comments:

When Governance Meets the Algorithm

King V has landed and this time, it doesn’t tiptoe around technology. I attended the Institute of Directors South Africa’s premiere launch on Friday and am pleased to report that the new corporate governance code from Africa puts AI and data at the centre of ethical leadership.

This is a signal that intellectual property and information governance now live under the same roof. In other words, how we create, protect and share ideas, from patents and trade secrets to training data and algorithms, is now a boardroom issue (as it should be), not just a legal one.

From Ownership to Stewardship

King V reframes the conversation. It treats “data, information and technology” as distinct but connected fields, and insists that boards take responsibility for all three. AI gets its own treatment: boards must establish accountability for the design, use and outcomes of AI systems, guided by values like fairness, transparency, privacy, explainability and human-centricity.

This is governance and IP language. If AI systems are built on data (and most are), then those data are intellectual assets. Their ownership, control and ethical use are as important as any patent or trade mark. Indeed, most exist as copyrights and know-how, creating an urgent need for registers to reflect this.

The shift from ownership to stewardship is subtle but seismic. Organisations are now judged not only by what IP they hold (which, from an African perspective, has always been neglected), but by how responsibly they manage and share it.

The New Currency: Intangible, Intelligent, Invisible

King V recognises what African innovators have known for years: the real wealth isn’t in the factory, it’s in the file.

Algorithms, data sets, local knowledge systems, creative works are now the levers of sustainable value creation.

Under King V, boards are told to link their strategies to the “vitality of socio-ecological systems.” In plainer terms: your business doesn’t exist outside the society and environment that sustain it. That means IP portfolios can’t be hoarded in isolation. They must contribute to broader resilience, climate, education, digital inclusion.

It’s a governance model that works like Ubuntu for IP: we create because we exist.

AI, IP and the Duty to Disclose

Another quiet revolution involves the concept of double materiality. Companies must now report both how sustainability and technology issues affect them and how their activities affect society. For IP teams, this invites new questions:

• How do our licensing and enforcement policies impact access to innovation?
• Are our data practices sufficiently fair and transparent?
• Does our AI deployment erode or enhance public trust?

Expect this to spill into integrated reporting and assurance. Auditors will soon be asking not only how many patents you have, but what those patents do to people and the planet.

Boards, Committees and the IP Connection

King V also re-wires governance structures. Risk committees must include independent members and so must social and ethics committees. For IP intensive organisations, this can be quite something:

• Risk committees should map and record IP exposure and ownership, from trade secret leaks to algorithmic bias.
• Social and ethics committees should oversee how IP is used in society, whether your AI respects human rights, diversity and access.
• Remuneration committees should rethink incentives by rewarding innovation that’s not only profitable but responsible.

It’s governance with conscience.

What This Means for African IP Practice

For Africa’s IP community, King V is both an opportunity and a challenge. It demands that lawyers, IP professionals and policymakers rethink IP as governance infrastructure. That’s a big shift from drafting agreements or filing applications. It’s about aligning IP strategy with ethics, AI governance, value and sustainability.

It also puts pressure on boards to include IP literate voices i.e. people who understand how data rights, algorithms and copyright intersect. If that doesn’t happen, companies’ risk being led by directors who can read a balance sheet but cannot read the value of intangibles. This is especially a challenge in South Africa, where internally generated IP does not even exist on the balance sheet and therefore long awaited.

So, What Now?

A few practical take outs for IP leaders:

• Put AI and data IP on your board’s risk register.
• Build IP ethics into your social and ethics committee mandate.
• Train directors on AI-related IP risk authorship, bias, accountability.
• Rethink disclosure: create IP asset registers - report how your IP both creates and impacts value.
• And perhaps most importantly, design IP policies (including enforcement policies) that reflect Ubuntu, not just exclusivity.

Final Thought

King V is very much welcomed as it indirectly positions intellectual property at the forefront of governance in the AI age. This is something that accounting standards on value have failed to do. AI inputs and outputs are all about data which includes intellectual property rights. It is not just about recording these assets in registers, it is also about leading with ethics and transparency, not because regulators demand it, but because trust is now the most valuable form of intellectual property we own. This is very much an opportunity for all those that believe in the value of IP.

Darren Olivier

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Spotlight: LES SA Annual Conference 2025 – Where Innovation, Licensing & Sustainability Meet!

Spotlight: LES SA Annual Conference 2025 – Where Innovation, Licensing & Sustainability Meet!

By Afro Leo   Tuesday, September 09, 2025   No comments:

The Licensing Executives Society (LES) South Africa is rolling out the blue carpet for its Annual Conference, set against the stunning backdrop of the Asara Boutique Hotel & Wine Estate in Stellenbosch from 9–11 November 2025.

Why Should You Be There?

• Innovation, Sustainability & Licensing in a Changing World is the theme, and the line-up is nothing short of world-class. Expect to rub shoulders with global IP leaders, trailblazing entrepreneurs, and the sharpest legal minds in the business.
• Network, learn, and shape the future of African and global IP. Whether you’re a seasoned practitioner, a startup founder, or a policy enthusiast, this is your chance to connect and collaborate.

What’s On the Agenda?

• Welcome Evening (9 Nov): Kick off with a relaxed cocktail reception, live music, and a chance to meet LES SA members, international guests, and speakers.
• Day 1 (10 Nov):
• Keynote on global IP & licensing trends by JC Troussel (President, LES International).
• Panels on green economy licensing, data licensing, and women in innovation.
• Workshop on Licensing Disputes with a powerhouse panel.
• Wine tasting and networking hour hosted by Asara Wine Estate.
• Day 2 (11 Nov):
• Fireside chat on AI & data licensing.
• Talks on startup licensing strategies, rugby brand building, and cross-border opportunities (featuring Afro-IP's very own Darren Olivier!).
• Closing plenary on innovation, ESG, and the licensing agenda.
• Optional vineyard tour and farewell drinks.

Registration & Details

• 
  Fees: R2,500 (members) | R5,000 (non-members)
• Register now: https://forms.gle/75hbSUvP4rHy49wb9
• Full programme: https://licensing.co.za/annual-conference-2/
• Conference hotel: Asara Boutique Hotel (special rates with code LES091125). Alternative accommodation options available.
• Sponsorships: Platinum, Gold, Silver, and Bronze packages: show your support for African IP excellence!
  

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