Friday, 30 May 2008
The report describes the impounding earlier this month of a 20-foot container full of fake pharmaceutical products imported on a the MV Maersk Izmir. Fake products detained in the seizure included Septrin paediatric suspension, Glucophage, Augmentin, Ampiclox and injectable Oxytocin pregnant women during labour, Aldomet blood pressure treatment and Encephabol liquid used in the treatment of mentally retarded children.
Thursday, 29 May 2008
Wednesday, 28 May 2008
The Court held, in dismissing the application by Pick ‘n Pay, that the Customs and Excise Act did not require an inspector to apply his mind to whether or not the offending goods were counterfeit (which is a decision for the Court in granting the warrant); the legislature did not intend the rules of natural justice to be complied with as a pre-requisite for the granting of the warrant under section 6(1) of the Counterfeit Goods Act; the contention that the first to third respondents failed to divulge all material facts was found to be devoid of merit; and whether the shape of the shoe performs a trade mark function is a factual enquiry the outcome of which is dependent upon whether the members of the purchasing public rely thereon as a guarantee of provenance. All that Crocs need show, to obtain the warrant, is a prima facie case of ownership of the IP rights and reasonable grounds that an act of counterfeiting had taken, was taking or was likely to take place.
Afro-Ip has commented before on the ease in which it is possible to obtain a warrant for counterfeit goods seizures in South Africa. In this case, Crocs (pictured alongside studying for the case) managed to persuade the magistrate that it had a prima facie case based on rights in the shape of its sandals as a well known mark despite it not being registered. Magistrates in South Africa are not specialist IP lawyers and there is considerable jurisprudence on registrability/protection in shape marks to consider (see for instance Ipkat's comments here) as well as the exclusive concept of a "well known" mark. Consequently, one feels that the provisions of the CGA favour rights holders over distributors and consumers who are often not represented when warrants are requested. Perhaps such favour is justified given the huge problem of counterfeiting (and associated health risks) not just in South Africa but on the continent? We would welcome your views.
Tuesday, 27 May 2008
Afro IP reported earlier on the Ethiopia Government branding initiative in which the Ethiopia Government has set the pace in Africa by creating 3 distinctive brands for its fine Coffee. The 3 brands will be used under license wherever the individual coffee varieties from that country are distributed and sold internationally.
Monday, 26 May 2008
Haco industries is noted for its strong brands such as Bic ball pens manufactured under license from Societe Bic of France. It also manufactures razors, Bic alkaline batteries and a range of household cleaning agents. Haco has been a significant player in trying to fight piracy, particularly in the east african region where most of the company's goods are sold. It has employed both administrative measures, as well as litigation to emphasize its relentless fight against pirates, especially copycats of its successful bic pen line of products( see Haco Industries V. Dungu HTCT-00-CC-MA-0253 OF 2005).
In the event of the successful conclusion of this deal, it can be presumed that Tiger Brands will continue this strategy of asserting the company's brand presence in the East African region.
The agreement was signed on behalf of WIPO by the outgoing Director General, Kamil Idris. In his words, the agreement "offered a comprehensive and coherent approach to establishing a robust intellectual property framework that will support the country's development objectives". According to Ghana's Attorney General, it is hoped that the cooperation between the two partners will enhance international trade and the manner in which investors percieve Ghana as an investment destination.
More specifically, the plan will revamp the country's intellectual property system to enable universities, smes and other enterprises to make better use of it. It will also enhance use of the copyright system by creative industries, as well as application of intellectual property rights in an environment of electronic commerce.
New fruit varieties are generally a far less fashionable and eye-catching area of IP than high-tech, telecoms and pharmaceuticals -- but the long-term benefits in terms of profitability and developing national areas of excellence and expertise are potentially immense, particularly when they can be buttressed by plant varieties protection, trade marks and protected geographical indication status.
"... manages the rights to the Nadorcott, Mor and Orri mandarins in South Africa. ... In addition to its late-ripening mandarin initiative, Citrogold has also introduced a number of new citrus varieties to the industry: early maturing clementines, seedless lemons and late hanging summer navels.
When it comes to commercialisation, Citrogold is the preferred partner of the majority of leading citrus and subtropical international research institutions. This is because the company is professional and has a highly integrated and effective approach to commercialising new products.
New varieties are introduced into South Africa, evaluated over a lengthy period before the best products are chosen for commercial application. Citrogold has not only invested in breeding programs but also has a program to identify promising mutations within the field and partners with local breeders.
A number of new improved varieties will soon be commercially available. These include a sweet Star ruby-like grapefruit ... called Flamingo, an exceptionally delicious mandarin called Valley Gold and a red internal-coloured navel with an external blush, named Kirkwood Red.
The company is also involved in the subtropical and exotics industry with the introduction of new mango, macadamia, litchi, passion fruit, pomegranate, as well as fig selections. ...
The company is also involved in the introduction of new technology to other African countries. Projects are already underway in Angola, Egypt, Ethiopia, Morocco, Namibia Swaziland and Mozambique".
Sunday, 25 May 2008
Meanwhile, on the global scene, IP Watch reports on the recent closing ceremony of the World Health Organization(WHO)and its global strategy on IP and health. According to this report by William New, the closing hours of the global health assembly saw the draft plan of action spark of debate on "on the role of the World Health Organization in intellectual property-related matters".
The intense debate on the direction of the WHO's program on Public Health, Innovation and Intellectual Property led representatives from Brazil and India to assert that “WHO’s primacy as the technical agency for health" and that "the mandate and its core competencies will not be allowed to be diluted".
In the broader context, how to balance health issues with commercial issues(and IP) remain areas of contention, especially for most countries in Africa. It is important that WIPO, in particular its Africa bureau take a leadership role in supporting member countries to deal with counterfeits through technical assistance to reduce the negative effect fake drugs are having on various health innitiatives. This will ensure that the WHO maintains its focus on health matters, and is not percieved to be veering into manifestly commmercial/ trade related areas which are better left to the WTO's TRIPS council.
Friday, 23 May 2008
"... file vast tracts of evidence and devise some of the most exotic theories of competitive harm known to competition law. Where competition issues fail, the public interest is invoked with enthusiasm. Firms hitherto not known for their love of labour or empowerment become overnight the standard bearers of social equity".This may be of significance in terms of intellectual property licensing, where cartels and anticompetitive practices may be dressed up as standard setting and technology transfer, or where refusal to grant a licence is seen as an abuse of a dominant position. In these cases, the party alleging anticompetitive practices may almost of necessity be quite small -- and the increased threat of penal costs may be a deterrent to bringing a genuine, if borderline, complaint.
Thursday, 22 May 2008
"The problem is that most of the intellectual property in Africa remains that way: discovery catalogues. Millions of such works that are never commercialised litter the benches of African universities and research centres — to use the familiar parlance, they are gathering dust on the shelves.There is more than a grain of truth in this. Innovation, R&D and so on are necessary conditions for progress towards a more competitive and efficient economy -- but they are not a sufficient condition. Businesses that have to account to shareholders and make profits will put their capital where it is most likely to grow at the least risk, but innovation is very often focused on products, services and processes which, being new, offer little clue as to their profitability. But if national governments do not provide a commercial environment in which the taking of business risk is attractive and the prospect of enjoying profit is real, investors will look elsewhere. IP rights are monopoly rights that are designed to operate in a competitive market; it is their exploitation, not their creation, that generates wealth.
Why is commercialisation of the products not taking place or has been taken to the back burner in the continent? According to one African scientist who formerly worked at the renowned Kenya Medical Research Institute (Kemri) for many years, product commercialisation is unfunded. Research bodies in Africa receive funding for experimental and non-experimental research.
The interest of people funding research institutes stops at the research level. All the money is geared towards financing the research agenda, and everyone is happy when the research is done, the products and ideas are identified and catalogued.
For a product of research to become available on the shelves of the supermarket, someone would have to come out of the research institutions and think of ways of manufacturing it in large quantities, package it and then distribute it.
This process is the development aspect of research and development (R&D). Development is a risky affair, and launching such a new product into the market carries significant financial risks. The market may not respond positively to the launched products leading to financial losses to the investors—-at least in the initial phase of growth.
People who finance business perceive development as a big risk, and so it is avoided like the plague. Business financiers such as venture capital funds, private equity funds, banks, and public money markets invest readily in business expansion".
This is good news, particularly following Jeremy's post a few days ago on the problem of counterfeit Malaria medicine here. However, the ultimate effectiveness of this initiative should be considered in the light of the comments to this posting here.
The latest version of the Consumer Protection Bill can be located here. The CPB is intended to be a Bill of Rights for consumers in the form of compliance codes for business and an enhanced enforcement tool to protect the rights of consumers.
Tuesday, 20 May 2008
A few hours later, co-blogger Jeremy and Olswang hosted a very successful "4th Annual Meet the Bloggers" session on a rooftop terrace with views across Berlin.
The SA Treasury has embarked on a project to:
- ensure legitimate IP transactions are not unnecessarily complicated by tax
- ensure that tax consequences flowing from common IP transactions are logical and expected
- gauge the impact of our Exchange Control Regulations on IP transactions
- identify “negative” IP tax practices and existing / potential loopholes
The Treasury would appreciate reader's input by providing examples of:
Submission deadline: 4 June 2008
- legitimate transactions that will be caught by our new tax anti-avoidance provisions s23I and s31 (the IP proviso to the connected person definition)
Submission deadline 29 August 2008
- “common transactions” concluded within your field for (i) monopolistic purposes (i.e. to protect IP), (ii) tax / financing purposes, (iii) balance sheet purposes, or (iv) Exchange Control purposes
- legitimate / common IP ownership structures
“artificial steps” that you have previously inserted into legitimate transactions to ensure “fair tax treatment” (e.g. converting upfront payments into interest-free loans to balance the tax effect)
- legitimate transactions that have been hindered by our Exchange Control Regulations
- unexpected / illogical / unfair tax consequences triggered by legitimate transactions
“grey areas” that require clarification
- areas of overlap between our Exchange Control Regulations and our Income Tax Act (e.g. transfer pricing and transfer payments)
- legitimate transactions that are caught by our tax anti-avoidance provisions (e.g. s11(f)(dd), s23J, s23D, s23G, etc)
- “negative practices” and loopholes (e.g. tax loopholes that may be exposed by relaxation of our Exchange Control Regulations)
All information will be kept confidential.
Please send your comments to either:
Anthony van Zantwijk (Sibanda & Zantwijik) at email@example.com, or
Greg Smith (Treasury) at Greg.Smith@Treasury.gov.za
A workshop on s23I and s31 will be held in the Johannesburg area during the first week of June and in August.
Afro-IP has sent a note to firstname.lastname@example.org asking to be included on the IP tax mailing list.
According to the report, it is most useful to consider the results of the GIPI in terms of five groupings or ‘tiers’ of IP competitiveness. These groupings are shown below. The only African country to appear in the tiers is South Africa, in tier 3. For more information on key findings of the index click here:
The Tiers of IP Competitiveness
UK, USA, Germany
Netherlands, Australia, Canada, New Zealand, Singapore, France
Israel, Japan, Spain, South Africa, South Korea
Poland, Dubai (UAE), Italy, Mexico
India, Brazil, Russia, China
Monday, 19 May 2008
The drugs sampled were sulfadoxine-pyromethamine (commonly known as fansidar), amodiaqine (commonly known as camaquin), mefloquine, artesunate, artemether, dihydro-artemisinin and artemether-lumefantrine (commonly known as Coartem). Overall 48% of the sub-standard drugs were made in Africa, while 32% were made in Asia. Contrary to popular belief that European drugs are of high standards, the researchers found that 24% of the sub-standard drugs were of European origin.
Friday, 16 May 2008
In a column orginally entitled Trademark Warming in Africa, this blogger suggests that recent developments mean that trademark owners should make plans both to develop their brands' presence and to protect their rights in (and from) Africa. Recent signs of a trademark warming in Africa include:
* African governments are becoming increasingly outspoken on the need to protect intellectual property;
* Counterfeiting is rising significantly, showing both a market for brands and a need for proper brand protection;
* Africa's largest inward investment deal was signed last year and is widely recognised as a vote of confidence in the continent;
* The continent's European filings at OHIM were at their highest in 2007 relative to previous years, indicating relative growth; and
* The continent will host FIFA's World Cup Football event, a traditional showcase for multinational brands, in 2010.
Bearing in mind that the African continent is the second most populous in the world, and hence a significant potential market, Africa's call for attention on the trademark manager's budget spreadsheet should, in this blogger's view, be getting louder. The full article can be located here, here, here and here (thanks for the links)
"The second structural reason is the residual power of pharmaceutical manufacturers to defend their rights to 'intellectual property', i.e. monopoly patents on life-saving medicines. This pressure did not end in April 2001 when the Pharmaceutical Manufacturers Association withdrew their notorious lawsuit against the South African Medicines Act of 1997. That Act allows for parallel import or local production, via 'compulsory licences', of generic substitutes for brand-name antiretroviral medicines. Big Pharma's power was felt in the debate over essential drugs for public health emergencies at the November 2001 Doha World Trade Organisation summit, and ever since."
Bond seems to support Ayodele's view that compulsory licensing is ineffective but for different reasons. Readers may recall that Ayodele recently wrote (based mainly on his experiences in Nigeria and reported on Afro-IP here) that the focus on IPRs as the main contributing cause to lack of access to life saving drugs in Africa is mis-directed... "that even if medicine were available for free, as it often is in poor nations, dysfunctional institutions and personnel ensure that the needy can't access it. Despite unprecedented quantities of monetary aid to the ministries of health of many African countries, health systems on the continent have languished." Bond's focus, by contrast, seems to be on the residual power of big pharma to protect their IPRs, despite compulsory licensing provisions aimed at increasing access to drugs.
* Patrick Bond directs the Centre for Civil Society at the University of KwaZulu-Natal in Durban. The article is an extract from his book 'Elite Transition: From Apartheid to Neoliberalism in South Africa'.
Tuesday, 13 May 2008
Monday, 12 May 2008
* a lack of relevant case law;
* insufficient numbers of interpreters (where the infringers are non-English speakers);
* the limited effect of interlocutory orders;
* the lack of public awareness (about counterfeiting and IP rights);
* the fact that all operations at the registry are performed manually; and
* the lack of public confidence in the various mechanisms for the enforcement of IP rights.
Afro-IP hopes to do its part to help overcome some of the challenges by faciliting comment and access to information about IP enforcement in Nigeria and elsewhere in Africa.
During the TIFA Council meeting, officials explored common objectives – including cooperation in the World Trade Organization, implementation of the African Growth and Opportunity Act, trade capacity building and technical assistance, intellectual property protection, export diversification, trade promotion, and development – and examined opportunities for a more comprehensive trade and investment relationship.
Total two-way trade between Mauritius and the United States was valued at $237 million in 2007, with US imports of $188 million and US exports of $50 million.
Sunday, 11 May 2008
Collaborations of this type face challenges from insufficient funding and the lack of well-equipped colleges to train programmers and software developers. Some countries, like Kenya, do not have clearly stipulated guidelines for software development, and Kiriinya adds that many developers there don't realize they need software licences. The trade mark and patenting laws also are not well-developed, and some processes take months before completion, which discourages some developers who may want to protect their work.
Free download of "Adventures of Nyangi" available here
Friday, 9 May 2008
that the law of trade marks/geographical indications may be able to provide protection of certain names/features associated with traditional knowledge e.g. Rooibos and Honey bush tea;
that a National Council consisting of experts on traditional knowledge must advise the Minister and the Registrar of intellectual property on traditional intellectual property (TIP) rights;
that communities may form business enterprises such as collecting societies in order to administer their traditional intellectual property, as well as commercializing such TIP;
that such business enterprises may enter into licensing agreements (commercialization of TIP) with third parties;
that other rights in the copyright regime should preferably also be subjected to "collective management of copyright regime".
The notice and Bill can be found on the DTI website at:
Any comments must be submitted by 15 June 2008, so get writing soon!
"... WIPO reinforced its cooperation with the Republic of Ghana with the signing on May 7, 2008 of an intellectual property (IP) development plan which aims to build the country’s capacity to create, protect and utilize IP as a power tool for economic growth and development. The IP Development Plan also seeks to ensure that the IP offices and potential users of the IP system - such as universities, small and medium-sized enterprises (SMEs), chambers of commerce and industry, research and development institutions and copyright organizations - have the technical capacity to use the intellectual property system.
WIPO Director General, Dr. Kamil Idris, ... said that the Development Plan offered a comprehensive and coherent approach to establishing a robust IP framework that would support the country’s development objectives.
The IP Development Plan covers a range of activities including legislative advice and workshops on strategic use of different aspects of the IP system targeting various stakeholders including small and medium-sized enterprises, research and development institutes, and the judiciary. It also includes support and advice to promote the development of creative industries, electronic commerce, copyright collective management, traditional knowledge, agricultural development and plant varieties. The plan further seeks to enhance the country’s IP infrastructure through modernizing and automating national IP administration to ensure high quality service delivery, extensive training and public awareness programs and the development of a national IP strategy to support economic growth and development".
Tuesday, 6 May 2008
Thompson Ayodele writes, in a well compiled piece, that the focus on IPRs as the main contributing cause to lack of access to life saving drugs in Africa is mis-directed... "that even if medicine were available for free, as it often is in poor nations, dysfunctional institutions and personnel ensure that the needy can't access it. Despite unprecedented quantities of monetary aid to the ministries of health of many African countries, health systems on the continent have languished." The article further fuels the complex debate on solutions to this very serious problem in Africa, as reported by Afro-IP here, here, here, here and here.
Thompson cites several reasons why, using Nigeria in most examples:
1. nearly all foreign aid must first pass through health ministries before reaching patients. Money is routinely subverted by health officials for private gain;
2. leakage of drugs from the supply chain due to rewards on the black market; and
3. other forms of corruption including mismanagement of funds at the local level, employee absenteeism, extortion of patients by staff members and the abuse of procurement contracts for hospital supplies.
The article cites failed examples of compulsory licensing in Thailand to further backup his view that "as long as healthcare delivery remains in the hands of dysfunctional governments, the health of the poor in developing nations will never improve. Aid groups and policymakers must instead enlist the help and expertise of the private sector which he believes will reduce corruption and insert much needed competition."
The full article can be found here.
Thompson Ayodele is the Executive Director of Initiative for Public Policy Analysis based in Lagos.
Afro-IP is among the weblogs that will be represented at the "Meet the Bloggers" informal session in Berlin on Monday 19 May 2008. This will be the first time an Africa-focused blog has taken part. Further details are available from the IPKat weblog here.
Till now the leading Yirgacheffe, Sidamo and Harar coffees have been valued in their own right but have not been identified or promoted as specifically Ethiopian quality products. Brand specialist Brandhouse has now created a distinctive brand identity system for Ethiopia Fine Coffees which will be used wherever the three individual coffee varietals are distributed and sold. Licensees will be required to include the new trade marked brand as part of their licensee agreements. Licensing agreements are now in place with more than 70 companies in eight consuming countries, with licensees committed to promoting Ethiopian Fine Coffees in their particular markets.
Monday, 5 May 2008
The proposal is for an amendment to the TRIPS Agreement so that it would be mandatory for countries to have in their national patent laws a requirement for patent applicants to disclose the countries of origin of biological materials and traditional knowledge used in their inventions, as well as evidence of prior informed consent and benefit sharing arrangements with the countries of origin and relevant local communities.
According to the article, "the law seeks to prohibit the grant of new patents based only on newly-discovered uses of a known drug; allow early registration of generic versions of patented medicines prior to patent expiration; and allow government to use generic versions of patented drugs when public interest is at stake. The government will also have the power to impose price ceilings on essential drugs, and allow import of expensive drugs if it is found that another country is selling them at a lower price."
Friday, 2 May 2008
"It was a day the nation considered supporting the copyright societies such as the ZIMCOPY, the Zimbabwe Music Rights Association and the Zimbabwe Anti-piracy Organisation in their difficult tasks of monitoring and administering copyrights and fighting piracy. The ZIMCOPY has in the last two years registered tremendous success in holding fruitful dialogues with institutions who photocopy books for educational purposes to pay the required photocopying licence fees similar to what public users of published music pay annually.After discussing the problems of lack of general awareness on the part of the public and the special difficulties posed by the internet, he adds, on a constructive note:
The copyright organisation whose members include associations of writers, and book publishers is confident that all organisations who have to photocopy books for educational and other purposes will join hands in the implementation of those aspects of the Zimbabwe Copyright and Neighbouring Rights Act that require that writers and publishers are duly compensated. It is most heartening that tremendous understanding on the need to respect the intellectual property rights of writers and book publishers has been attained and that was is left are implementation strategies that will be initiated this year.
The Zimbabwe Anti-piracy Organisation has recently recruited recording studios, record companies, music retailers as members who commit themselves to collectively fighting against music piracy. Together with the Zimbabwe Music Rights Association, the organisation has mounted very successful anti-piracy campaigns featuring musicians, music retailers and recording companies".
"The Nairobi Plan of Action on Cultural Industries in Africa has very comprehensive recommendations on actions necessary in the promotion of copy rights and the way towards effective fights against piracy, the following are some of them:
Unesco together with member states and regional organisations are encouraged to facilitate networks, forums and inter-regional collaborations and agreement in the following areas-
1. Elaborate regional agreements specific to cultural industries, relating to taxes, intellectual property rights, private investment and sponsorship.
2. Invigorate the African Organisation for Intellectual Property based in Yaounde, Cameroon and the African Regional intellectual Property organisation based in Harare, Zimbabwe.
3. Encourage the creation of groups and associations of creative writers, artists and professionals of the cultural industries with a view to promoting them to better protect their rights and their professions.
4. Encourage artist to become organised into associations of crafters to establish standards and ensure the protection of their intellectual property rights.
The Nairobi Plan of Action on Cultural industries in Africa also recommends that the African Union and the World Intellectual Property Organisation should "develop legislative policy to protect the intellectual cultural property of ethnic groups such as traditional medicines which may be of benefit to the broader society and may also be commercially viable and provide necessary source of revenue to these communities".