Friday, 29 November 2019

Afro Chic

Mauritius’s new Industrial Property Act: Mr Marius Schneider explains.

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.

Brought to you by Afro Chic
Image credit: Marius Schneider 

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