Monday, 31 March 2008
We are also delighted to announce that our beloved Afro-Leo is leaner and fitter following an intensive IP hunting course run by WIPO! Check him out alongside..
Sunday, 30 March 2008
While currency forgery is generally seen as a fiscal and criminal issues, there are also copyright issues involved: many countries make specific provision for the copyright protection of banknotes, while others regard them as falling within the general provisions relating to the protection of authors' works. A search of WIPO's CLEA database of national intellectual property laws failed to find any materials for Somalia at all. Can any reader advise as to what the copyright provision is there?
Friday, 28 March 2008
To whet your appetite, according to the review, Stiglitz, who was former advisor to the Clinton Adminstration and Chief Economist of the World Bank, "vigorously attacks the TRIPs" (trade-related aspects of intellectual property rights) agreement. Quoting from the review:
"TRIPs, he argues, have "imposed on the entire world the dominant intellectual property regime in the United States and Europe, as it is today." New drugs could save millions of lives in poor countries, but they are unaffordable because they are protected by patents that allow the drug companies to charge monopoly prices for a period of twenty years or more. By including patent protection in the World Trade Organization, he writes, American and European negotiators signed a "death warrant for thousands of people in the poorest countries of the world." Pharmaceutical companies should be forced to sell life-preserving drugs to poor countries at near cost—or face compulsory licensing of generic drugs that can be produced by, and traded between, developing countries. Stiglitz also wants to give poor countries reverse protection against what he calls drug companies' "bio-piracy"—exploitation of the traditional plant-based medicines of poor countries without paying for them.
Stiglitz raises the interesting question of whether, or how much, patent protection is needed as a spur to innovation, and in what fields. There is a case for arguing that such protection rewards trivial innovations, and slows down more fundamental ones by erecting barriers to entry into the market. It is also true that AIDS has shrunk life expectancy in southern African countries like Botswana, Kenya, Zimbabwe, Malawi, and South Africa. However, Stiglitz is wrong to single out TRIPs as the main obstacle to the use of antiretroviral drugs. As he recognizes, Brazil, another AIDS-ravaged country, simply disregarded the TRIPs regime and started manufacturing antiretroviral drugs on its own. In South Africa, by contrast, Health Minister Manto Tshabalala-Msimang denounced the drug nevirapine—used to prevent the transmission of HIV from mother to child—as "poison" to South Africa's women."
The book is available for sale here - ironically (given its content) only one price seems to apply to all.
Thursday, 27 March 2008
Wednesday, 26 March 2008
The East African Community (EAC) region, which has been implementing a gradual integration programme aimed at eventually making the region into a single market, a monetary union and a political federation, has lately decided to train its attention on economic integration.
“The issue of anti-counterfeit legislation is so important. There is also need for harmonisation of the various rules and regulations regarding trade in the region,” Nalo said.
Tuesday, 25 March 2008
The settlement was made pursuant to section 49D of the Competition Act (the ‘Act’) for:
a) the implementation of a merger without the approval of the Competition authorities in contravention of section 13 A(3) of the Act; and
b) contravention of section 4(1)(b) of the Act, in that whilst not being members of a single economic entity, and being instead competitors, they adopted the same pricing structure for the tariffs charged by the hospitals in their respective groups
In particular, the Truibunal held that:
"Whilst we encourage parties to negotiate settlements with the Commission and believe this is in both the public interest and the interests of affected parties, we cannot sanction agreements which fall far short of the standard of an appropriate penalty..."
"...even though the respondents may have come clean when confronted at the time of the Commission’s non–notification investigation, the Commission is entitled and indeed ought to have had regard to the history of inconsistent explanations on the same issues before the Competition Authorities to assess properly the firms’ behaviour and degree of co-operation. If one or both of the respondents had been less than frank on this issue with the competition authorities this should be taken into account as an aggravating factor in assessing an appropriate quantum for the penalty. In our view, the Commission by failing to seek a satisfactory explanation on this aspect has given no consideration or insufficient weight to this issue in considering an appropriate penalty."
"Another criticism we have of the Commission’s approach is the fact that it entered into the consent order prior to the conclusion of the merger hearing."
"...the commission has failed to give due weight to certain considerations or taken them into account at all and has erred in calculating the affected turnover, an appropriate penalty, absent a satisfactory explanation to some of the concerns we have raised, should be substantially higher than the present one."
On "affected turnover" the Tribunal had this to say:
"IF NETCARES’ HOSPITAL TURNOVER IN SA WAS TAKEN INTO ACCOUNT AND ADDED TO THAT OF CHG, THEN THE PRESENT FINE WOULD CONSTITUTE A TINY FRACTION OF THIS FIGURE - LESS THAN 1%. THIS IS MINISCULE INDEED.."
For the full case click here
Monday, 24 March 2008
Sunday, 23 March 2008
Elastair deWet (Adobe Channel Compliance Manager, Middle East and Africa) is quoted as making this clear during the company's road show in Nigeria last week. Although he did not disclose the amount Adobe may be losing in the Nigerian market or globally, he noted that software piracy comes in many forms including licensed user duplication for unlicenced users, illegal internet distribution, illegal use of Adobe Acrobat over a network, distributing specialised education versions to unauthorized markets, and distributing inauthentic Adobe software or fonts. He added that, if education and pricing policy don't stem the tide, the comnpany will resort to the usual means of legal enforcement of compliance.
Saturday, 22 March 2008
The article explains a little more about CDMs and their low rate of take-up:
"The CDM is supervised by the CDM Executive Board (CDM EB) and is under the guidance of the Conference of the Parties (COP/MOP) of the United Nations Framework Convention on Climate Change (UNFCCC).
One of the intentions in the creation of the CDM was to bolster Africa through technology transfer, community-level development benefits, enhanced private-sector investment and market development. Given the huge need for resources to support sustainable development plans in the region, and the seemingly large potential for CDM activities there, one might expect Africa to be a very active participant in the CDM.
However, the reality is the extreme opposite. Projects in Africa that had successfully journeyed through the formal procedures for developing and registering a CDM project numbered four by December 2005.
There were over 200 projects in various stages of development by this time, of which only a handful were in Africa.
Today, Africa has only 214 CDM projects most of which are either in South Africa or in the Northern parts of the continent".
Friday, 21 March 2008
"The Botswana Polices Services, in accordance with the Copyright and Neighbouring Act of the Republic of Botswana, conducts raids against dealers of counterfeit and pirated materials across a wide variety of goods, including music, DVDs, software, clothing, pharmaceutical products and general consumer goods. Hlatshwayo [Microsoft’s anti-piracy manager for East & Southern Africa] said that the department has been met with much success in its efforts to combat piracy in Botswana, largely due to the support of the intellectual property owners themselves. In order to train law enforcement officials to identify pirated software, Microsoft has hosted several workshops for law enforcement departments in Botswana. These workshops have made it easier for the Botswana Police Services to find, catch and prosecute suspected software pirates in the country."
For other Afro-IP reports on Botswana, click here
For other Afro-IP reports involving Microsoft in Africa, click here.
Thursday, 20 March 2008
The transaction remains subject to regulatory approvals in Canada and South Africa. Says Andre Lamprecht, CEO of Freeworld Coatings Global:
"This acquisition furthers our intention of building on the essence of our brand, which reflects our vision of becoming an even stronger international force within the coatings industry and a world-class multinational company that is commercially, socially and environmentally responsible".
Wednesday, 19 March 2008
Unfortuantely there is no delightful typo or faux paus to report on this time (except mine).
Listen to 'Africa Money' here
Monday, 17 March 2008
SAIIPL has called for comments through their various committee chairs by 30 April 2008. if anyone would like a copy of the draft Bill please send an email here.
Sunday, 16 March 2008
One wonders why a court media statement contains words like "incola", "a quo" and "quantum" which can make its meaning difficult to digest. For the uninitiated an "incola plaintiff" is someone who resides in the country, the words "court a quo" mean court of first instance or court where the decision under appeal was made and "quantum" means amount or value. The latin terms reflect one of the origins of South African law which is Roman Dutch law. SA's IP laws, on the other hand, are largely influenced by English law whilst custom made law and US style constitutional law are additional ingredients in the SA legal broth, to which you can also add 11 official languages and then....smatterings of latin. Although the concoction can hardly be described as bland, there is a significant challenge to avoid it becoming tough, and alienating the man on the street. Posted by Darren Olivier
Friday, 14 March 2008
The Afro Leo was browsing through the INTA Annual Meeting Brochure and noticed the following tasty morsels on Africa:
Enforcement in Africa as Trade Barriers Ease
Chris K. Job, Adams & Adams (South Africa) (and new chairman of Adams and Adams, again!)
Mondher Almensi, Al Mensi Law Firm (Tunisia)
William I. Maema, Iseme, Kamau & Maema Advocates (Kenya)
Obatosin Ogunkeye, Allan & Ogunkeye (Nigeria)
Kay Rickelman, Spoor & Fisher (South Africa)
Sport Sponsorship: Ambushes and Other Perils
Christian Rohnke, White & Case LLP (Germany)
Xuemin Chen, Zhongzi Law Office (China, PR)
Gérard du Plessis, Adams & Adams (South Africa)
David J. Gill - Trade Mark Attorneys (United Kingdom)
Julia Schönbohm, DLA Piper (Germany)
Trademark Protection Safari: Hunting for Effective Enforcement Strategies in Africa (hopefully not Lions!)
Marilyn Krige, Adams & Adams (South Africa)
The Afro Leo has just heard that his good friend and fellow country(person) Danise van Vuuren-Nield has just been appointed head of Global Trademarks for The Coca-Cola Company, based in Atlanta. Congratulations - a significant achievement indeed!
Thursday, 13 March 2008
The truth of the matter is that, so long as the profit to be derived from the sale of products outstrips the profit to be derived from increasing value of the goodwill in a brand and then leveraging it, companies will be more tempted to relabel their products than to encourage the belief that medicines made under their names and brands are reliable.
" ... Insecticide is used to destroy insects and protect lives and crops. A mosquito bite often means death in Nigeria. The gutters are swollen and stinking during the rainy season and mosquitos cannot imagine their good luck. Health ministries sprayed stagnant pools of water with insecticide in the past but not any more. It is a new Nigeria of fallen standards, selfishness and stolen wealth.
The National Agency for Food and Drug Administration and Control (NAFDAC) has accused a Lagos chemical company of something worse than selfishness. The agency accused the company of knowingly and coolly breaking the law, of endangering the financial health of farmers and the well-being of Nigerians.
NAFDAC’s Deputy Director, Regulatory Affairs, Mrs. Ariz Madukwe, said at a news conference last week that the company changed both the dates of manufacture and expiry of an insecticide called Endocap. The chemical is used to keep insects away from crops.
The senior NAFDAC official said the insecticide was manufactured in April 2006 and had a potent shelf life of two years. Any unsold stock should have been withdrawn at the end of April, but the company was caught relabelling the product. The company is now claiming that the product was manufactured in January 2008, though it was to expire in April. The new expiry date for a product manufactured in 2006 was now January 2010.
The company is apparently a well established one. It has offices on Victoria Island and a warehouse in Ikeja. NAFDAC said the company was engaged in the criminal alteration of the expiry date of Endocap at its warehouse.
Will the Endocap caper lead to the deserved end of the company? Not likely. Though NAFDAC’s deputy director of regulatory affairs said workers of the chemical company were caught, relabelling the product, nobody was apparently arrested. The company was merely sealed off. The company might have been engaged in the criminal alteration of the expiry date of its brand of insecticide for many years before NAFDAC was tipped off.
There are drug companies in Nigeria set up to manufacture or sell unwholesome drugs. They have foreign collaborators. One Italian pharmaceutical company was set up to manufacture and export useless drugs to developing countries, especially those in Africa. The company said it was doing Africans a favour after it was exposed by the London Sunday Times. It said Africans could not afford efficacious drugs. The company was closed down by the Italian authorities following an international outcry.
This happened in the 1980s, at a time Nigeria had no drug regulatory authorities to speak of. Expired drugs were shipped to the country and they were openly sold in pharmacies and patent medicine shops. A pharmacist was arrested for selling expired drugs, but he was not tried. His pharmacy was reopened after being shut for a few days.
Babies died in a teaching hospital after being given medicine for cold. Their parents wept while the manufacturer of the drug of death laughed while cuddling their blood money. There was an enquiry that avoided apportioning blame.
The coming of Professor Dora Akunyili as Director General of NAFDAC halted the haughty stride of the merchants of death. Adulterated or expired drugs were seized and burnt. Markets where dangerous drugs were sold were sealed off for a time.
Bad medicines make millions for the manufacturers and they fought back. They burnt down two or three NAFDAC laboratories and attacked some of the agency’s staff members. Some people were charged with trying to murder Professor Akunyili.
It is the only trial of people suspected of manufacturing, adulterating or selling harmful drugs as far as we know. And they were tried for attempted murder with the use of a gun and not the killing of unsuspecting patients who take poisonous or non-potent drugs.
Why has nobody been convicted of manufacturing or selling unwholesome drugs? Has it to do with the absence of the necessary laws? Or is their enforcement the problem? Is NAFDAC being given the security and legal assistance that it needs?
Punishments should swiftly follow crimes, especially when the lives of hundreds of thousands of people are deliberately put at risk by people seeking easy riches. NAFDAC should make an example of the owners of the company that altered the expiry date of Endocap, its brand of insecticide.
A mosquito may not be blamed, but those who manufacture or sell dangerous drugs and chemicals deserve to be jailed".
Wednesday, 12 March 2008
The Southern African Development Community (SADC) is raising awareness of the need for a competition regime at a regional level. SADC’s integration has called for the accelerated achievement of a free trade area (FTA), to be followed by a customs union in 2010, a common market by 2015 and finally a monetary union.
The Common Market for Eastern and Southern Africa (Comesa) is setting up a regional competition authority in Africa. However, SA and Botswana are not members of Comesa. Comesa has also put a customs union at the top of its agenda this year. The union, which would bring member countries under common external tariffs, is expected to ease the costs and processes of trade. It is expected that Comesa will have appointed commissioners for the regional authorities by July 1.The competition regional authority for Comesa is expected to be set up in Malawi or Rwanda, following the European Union (EU) model. For the full Business Day report click here. Posted by Darren Olivier
Tuesday, 11 March 2008
For an earlier post involving FIFA, click here. Credit to Dr Wim Alberts for drawing this article to our attention. Afro-IP has offered a reward to those who can guess Roshana's title in full (without infringing FIFA's rights)! Answers on a postcard please.
Universal also says that Mr Video would often remove the "zoning" chip that prevents DVD machines from playing DVDs bought in other parts of the world. Mr Video denies any wrongdoing, adding:
"The videos that are the subject of this application are not counterfeit or pirated copies of Knocked Up; they are copies which were made in the US by or with the permission of the copyright owner".Mr Video has agreed to stop importing DVDs until the conclusion of the court case, which will be heard on 30 April.
Monday, 10 March 2008
1. Annuities on all applications based on PCT Patents filed in Nigeria within the priority period specified in the Treaty are payable from the date of the filing of the International (PCT) applications on which the Nigerian applications are based.
2. Any application filed outside the priority period prescribed by the Treaty would be deemed to have lost its priority and would be treated as a local patent under the Patents and Designs Act. Cap. 344 Laws of the Federation of Nigeria, 1990; annuity would thus be payable on the anniversary date of the filing of the application in Nigeria.
The Registrar has also directed that with effect from 2008, a new Patent numbering system would be adopted as indicated on the Official Filing Receipt. posted by Darren Olivier
Sunday, 9 March 2008
The row between Starbucks and the Ethiopian government has received much press commentry over the last twelve months. Hopes of an alliance between Starbucks and Ethiopia had receded last year when the retailer objected to a plan to license rights to coffee brands in countries where they were not registered as trademarks. Although the Ethiopian governnment succesfully concluded an agreement with Starbucks, the agreement attracted criticism by Fairtrade commentators who felt that the royalty free licence provided little reward to the Ethiopian farmers.
It is good to see the Ethiopian government taking steps to protect and grow their intellectual property rights, and succeed. Signs such as Sidamo do face risks of genericism. Hopefully the licence agreement between Starbucks and Ethiopian Government is robust enough to ensure that Ethiopia can benefit from the extensive distribution networks of Starbucks. Ethiopia is Africa's largest coffee producer.
Saturday, 8 March 2008
Friday, 7 March 2008
"“Education”, “synergy”, “building partnerships”, “network building”, “renewed commitments”: this is how Africa is going to develop science, technology and innovation – at least according to the half a dozen distinguished ministers from around the continent who spoke at the conference on Wednesday this week. They did not address, however, why spending on R&D is less than 1% of GDP in most African countries or why, as Professor Edward Ayensu of the Council of Scientific & Industrial Research in Ghana pointed out in a well-received speech, why there had apparently been little progress since 1986, when he chaired a conference that promised much the same thing: “We pay lip-service to science and technology but don’t do anything about it … without science and technology we will never develop.”
A slightly different agenda emerged at the final conference session on Thursday, in a presentation called IdeaSolution, organised by BrainStore (who comes up with these absurd compound names?) which is “built on sound logic and Swiss precision” (their words not mine). In real-time, the 700 or so scientists, administrators and lobbyists attending the conference voted on 20 radical ideas to promote science in the continent, including an Olympic Science Games, an African science TV channel and a tax on luxury goods to fund R&D. The top three ideas, when the votes were counted, were:
* one sponsored science kit for every school (sponsored by who -- and what if they had an agenda?)
* an African Research Yearbook and
* advice on patenting indigenous knowledge (surely this would need some thought about novelty and prior art, not to mention the costs of protection and enforcement?).
This exercise did at least show that delegates are aware that IP has a key role in discussions about science in Africa, and especially one of the main failures so far – turning successful research into commercial innovation. Fittingly, “patents, IPR and technology transfer” was one of the plenary sessions and included five varied presentations – although there was probably little that would be news to readers of this blog. We heard how ARIPO offers protection in 16 countries and has recently offered a cut-price utility model to benefit SMEs, as well as providing training; how issues such as traditional knowledge and fair use are being discussed internationally; how studying patent documents can help businesses plan their strategies and innovate; and how technology transfer – if managed properly – can provide win-win benefits. There was also a mention of the new Pan-African Intellectual Property Organization (PAIPO) although I haven’t found anyone yet who really knows what it is doing or how it relates to other organizations.
Apart from one question, which wasn’t adequately addressed, there was surprisingly little criticism of IP rights or calls for alternative models. This may have been because those attending were IP standard bearers or it may have been because the Q&A session was moderated by Professor Sir Magdi Yacoub, a highly distinguished heart surgeon but by his own admission not well-acquainted with the subtleties of IP arguments. He pressed the speakers with questions about publication and the grace period, but they could not give him a uniform answer.
Despite superficial disorganization (a schedule that bore little resemblance to the published programme and which always seemed to be running an hour late) the organizers (UN ECA and African Union) remarkably produced not only a nine-page draft summary of the meeting in two languages, with 24 action points, but also a CD, distributed to all delegates before the conference closed.
Two of the 24 points related to IP: “(1) ARIPO, OAPI and PAIPO and the national IPR bodies should embark on intensive capacity building and awareness raising campaigns in IPR and patent issues; (2) African countries and their respective institutions should enhance their role as custodians of the governance of Africa’s indigenous knowledge and traditional artefacts by enforcing protection laws related to IPRs.” Nothing too revolutionary there. The Nigerian representative at the conference made some astute comments about what the draft summary said about IP, in particular that TRIPs was not mentioned, that protection in many countries is weak rather than strong and that patents should be seen as a separate issue from traditional knowledge.
This was a diverse conference, covering everything from IT to climate change, malaria drugs to transport. Perhaps too diverse. But the message was clear, and in the light of international focus on and investment in Africa, not to mention the Gates Foundation’s millions, it is well-timed: if Africa is to develop and address its health and environmental challenges, science should play a part. To do so, research needs to be commercialized, and as many speakers pointed out, that requires effective IP protection as well as venture funding and basic infrastructure. The most interesting presentation I heard was by Professor Peter Singer, who has led a study in three countries which suggests that research and commercialization are proceeding on “parallel tracks” in his words, both progressing but never meeting. That, he argued, needs to change (and he has some interesting proposals on how it can do so). I chatted to many of the delegates here, but did not meet a single African businessman/woman (among multinationals, I met one representative of big pharma; Microsoft was a sleeping sponsor; and someone from Nokia gave an interesting talk). When a conference like this attracts people from the private sector (whether factory owners, shopkeepers, pharmacists, grocers or even farmers) who want to use science to grow, then perhaps we will see some progress".
Wednesday, 5 March 2008
Ranking: top 20% Mauve, then Light Blue, then Green, then Yellow, the Red. White (apparently not researched).
Tuesday, 4 March 2008
Monday, 3 March 2008
picture courtesy of Roshana
Sunday, 2 March 2008
a. Speed: the case was filed on 16 October 2006 and judgment handed down on 22 February 2008. 16 months is not bad for a full trial.
b. Assignments: “an assignment [of a trade mark] is only valid to confer title after registration with the Registry of Trademarks” an unchallenged quote of the Assistant Registrar, International Property Rights, Ministry of Justice which the judge accepts. This has significant implications for brand owners acquiring or disposing of their trade marks who may best be advised to include a separate assignment recordal document (duly stamped) in their completion bundles, for immediate recordal in Uganda.
c. The tests for both infringement and passing off will be familiar enough to common law lawyers. For example, the Judge was guided by the five pointers in the English case of Reckitt & Coleman Ltd –Vs- Borden In (aka the Jiff Lemon case) for determining passing off. However, in applying the tests, the judge held that “[trade mark] infringement is analogous to the tort of fraud.” Fraud generally requires intent (which is absent in the normal test for trade mark infringement) and is a crime (which trade mark infringement, excluding counterfeiting, is not). The Judge was also able to establish passing off in a short paragraph, apparently, without reference to reputation in the getup. Getup, on the other hand, appears to form part of the Judge's reasoning under the infringement test.
d. The Judge acknowledged that Uganda is an ARIPO member state and appears to infer that a mark which designated Uganda would be enforceable, ignoring possible shortcomings of ARIPO. See earlier posting here.
e. The Court ordered that interest would be payable at the rate of 25% per annum. Darren Olivier
Among other things, the MEPs have urged Member States to promote knowledge and technology transfer between the EU and Africa, together with R&D projects, under a new framework for action. The aim here is to achieve immediate and long-term goals for sustainable development, and accordingly develop policy and resources. Finally, the European Parliament called on the EU and the Member States to ensure greater consistency between the EU's international science and technology policy and the basic needs of African countries. This should lead to the development of a new global framework for science and diplomacy with Africa.