Thursday, 30 October 2008
The passage of this bill comes against the backdrop of reluctance on the part of investors to increase investments, particularly those that may require protection of sensitive business and technical information without a law that protects them.
The trade secrets Bill is one of a series of Intellectual property laws expected to be passed before the end of the first quarter of 2009. Others include the industrial property bill and the geographical indications bill.
More details on the key features of the law will be posted in due course as soon as it becomes available.
Wednesday, 29 October 2008
The Complainant, Mxit Lifestyle (Pty) Ltd (“Mxit”), lodged a dispute against an individual registrant’s (Mr Andre Steyn) domain name mixit.co.za. Mxit is a company which operates a social networking and communication service based on text messages aimed at the youth market claiming 8.7 million users. Mxit is the proprietor of several pending trade mark applications in South Africa and the domain names mxit.co.za and mxit.com which were registered on 9 May and 26 February 2004 respectively. However, the Complainant only began to use its MXIT trademark in May 2005.
The Adjudicator, held that, in regard to establishing rights, the Complainant could not claim trade mark rights (in the sense of an actionable right against third parties) in their pending trade mark applications, company name or domain name per se. However, the uncontested evidence of use of the trade mark between May 2005 and March 2008 was sufficient to establish common law rights in the trade mark MXIT (which was held to be neither a descriptive nor a generic term) and that the relevant date for showing such rights is the date of the complaint and not the registration date of the disputed domain name. The Adjudicator further confirmed that the contested domain name MIXIT.co.za was similar to the Complainant’s trade mark MXIT.
On the question of whether the contested domain name was an abusive registration, the Adjudicator found that disputed domain name is used or has been registered in a way that leads people or business to believe that the domain name was registered to, operated or authorized by or otherwise connect with the Complainant. The adjudicator held that “people will, particularly in view of the similarity between the Disputed Domain Name and the Complainant’s trade mark MXIT and the fact that the Complainant’s trade mark is pronounced and often referred to in writing as “Mixit”, likely believe that the Disputed Domain Name is connected with the Complainant”.
The case is good news for brand owners but does it go too far? Although the factors for what may constitute an abusive domain name in domain name parking situations are usefully set out in the decision, one interpretation of the ruling is that it was primarily the similarity of the trade mark and domain that was sufficient to hold the domain name an abusive registration. It is not clear if and to what extent those factors (eg whether the domain name is an obvious trade mark or whether the landing pages were for competing products etc) were considered in making the finding that “… the Registrant generates revenue from the sponsored links and advertisements that appear on the landing pages and as a consequence of the confusion with Complainant’s trade mark.” This is particularly so because initial conduct of the Registrant in using the keywords “chat”, “messaging” and “Mixit” had ceased and their relevance apparently discarded by the adjudicator, leaving us with a situation where a parked domain name using ordinary terms for search engine optimization eg fashion, clothing, music that are unrelated to the Complainant’s rights give way to finding that the domain name is abusive.
"Critics say Microsoft's efforts to outflank Linux are steering cash-strapped governments away from the cheapest, most sensible solution. They say Microsoft has been locking African government agencies into costly, multiyear agreements to license its software. "African governments cannot afford long-term licensing contracts," says Nnenna Nwakanma of the Free Software and Open Source Foundation for Africa, a Ghanaian-based nonprofit. The money, she says, would be better spent on training people to use computers and fostering homegrown software development.What is interesting is the way in which the battle between proprietary software and open source products is being fought out in economies in which financial resources are scarce, competition law of little apparent relevance and market forces at local level vulnerable to government pressures.
Microsoft says its pricing in Africa is fair, and that the company is investing heavily in community projects across the continent. "We believe we can help improve the lives of millions of people and potentially grow our own business in the long term," says Thomas N. Hansen, Microsoft's general manager for the region".
Tuesday, 28 October 2008
"UPDATES: Thick as intellectual property lawyers
The South African Institute of Intellectual Property Lawyers (SAIIPL) declares on its website that among its objectives is “to act as a disciplinary body that protects the interests of the South African public by ensuring that standards and practices in the field of Intellectual Property Law are maintained”.".....
I am dead keen to know why we are "thick" but cannot find myself parting with R278 (the Noseweek susbcription) to find out.
Can anyone enlighten all of us? Mr Welz - it would be for a good cause...
"Over the last 15 or 20 years there has been tension between the industrialized north and the developing south over this issue," he continued. "There was a sense in the south that people from the north were simply looting this resource. We called it bioprospecting; they called it 'biopiracy,' which caused obvious problems in negotiating access and contracts." Moreover, said Geary, philanthropic attempts to establish a pharmaceutical research base in Africa often fail because they lack the crucial element of sustainability: Donations of expensive high-tech equipment typically do not take long-term maintenance into account, for example.
According to Geary, "Africans will do the research and own the intellectual property. This creates sustainability: if you can license the products of your screening, you have a revenue stream."... "The other goal, that's very important, is that Africans should be leading this program in the very short term, two to three years. I hope to make myself irrelevant." (Source Eurekalert)
The cause seesm both sensible and noble but wonders how far $100,000 will go. Hopefully the revenue streams start to materialise fairly quickly and the programs are able to benefit from other funding or government initiatives.
Monday, 27 October 2008
Presenting the joint position of MAN and NTMA, Executive Secretary of NTMA, Mr. Paul Olarewaju alleged the counterfeited textile fabrics originate in China and specifically target and copy the trade marks of Nigerian textile manufacturers, ‘Made-in-Nigeria’ or ‘Made-as-Nigeria’ on the selvedge and even blatantly take SON/NIS markings to deliberately mislead consumers. According to Mr. Olarewaju, the markets in Kano, Ibadan, Onitsha and Lagos are flooded with smuggled textiles through nation’s land borders, particularly, Niger Republic which now occupy over 80% market share.
For more on the devastating effect of piracy in Nigeria click here.
Thursday, 23 October 2008
Determining ownership of a trade mark is not as easy as it may appear. The trade mark register serves as first glance proof of a valid right to a trade mark. However, a trade mark serves as a badge of origin and a guarantee of source and if it should fail to continue in that function it runs the risk being cancelled. If Stofile is correct that many South Africans did not know who owns the trade mark then that is a sign that the trade mark may not be indicating origin. If upon further investigation (eg by interviewing the relevant public) it appears that they are confused as to who owns the trade mark by suggesting that several different bodies, organisations or firms do, or that nobody does or as as national symbol that the public does (another debate altogether) then that trade mark may well be vulnerable to a cancellation claim. The investigationso may also indicate that the goodwill associated with the trade mark is in fact owned by a different "person" than the legal proprietor of the trade mark which means that the rights conflict with one another and ultimately could also lead to a loss of rights in the registered trade mark.
I had a number of comments on my earlier post and look forward to further comments on this one. It would be great if those comments would be made live on this site as this is a discussion that appears to have have no clear answer.
Monday, 20 October 2008
ECOWAS press release here.
Prof. Akaho called for the ratification of all relevant international conventions in order to help build the necessary public and international confidence in the country that it would use nuclear for peaceful purposes. Emphasis was placed on the need to train skilled human resources -- concerted efforts had to be made to promote effective technology transfer and partnership through bilateral and multilateral agreements.
Saturday, 18 October 2008
"... South Africa last year had a software piracy rate of only 34% compared to the African average of over 80% (Zimbabwe being 91%)".A reduction in piracy of 10 percentage points over four years could generate R6 billion in additional revenue in the South African information technology (IT) industry and as many as 1210 extra IT sector jobs.
Various types of infringement are identified, including “softlifting”, the purchase of a single licensed copy of software which is loaded on to several machines.
Friday, 17 October 2008
Thursday, 16 October 2008
What would happen to the Springbok if it was summarily kicked out the game park? What would happen to the intellectual property attached to the bok and is there a prospect that someone could exploit it?
Leaving aside what might happen to Afro-Leo (who has been hunting springbok for years and may now need the services of a nutritionist) there are undoubtedly registered trade marks throughout the world, valuable goodwill attached to the name and bok symbol and copyright in the symbol too. Does a public abandonment of the emblem leaves those trade marks vulnerable to cancellation eg for lack of intention to use? In some jurisdictions that may be the case. However, does this mean that someone like Mike Ashley, disillusioned by his brief foray into the Premier League, could start a rugby side called the SPRINGBOKS and exploit the emblem for commercial gain? We have seen that protectable goodwill can endure for many years but goodwill is not protected in all jurisdictions in the same way and perhaps more importantly, who would foot the bill to enforce the rights - surely not body that has abandoned it, especially in such circumstances? Copyright in the bok symbol would remain an actionable right too in most jurisdictions but then again would it be enforced? Would the risky prospect of damages be a sufficient incentive? Unlikely one would think.
It seems that the abandonment of the symbol and name does create an opportunity for someone who thinks they could gain an advantage out of it. It not as easy as it may sound - the symbol would have been endorsed as a throw-away asset for a reason and that reason would taint its potential commercial value, among other things. That said, if the debate is heated enough we could find ourselves with a rebel SPRINGBOK sponsored by some body who feels that they could exploit it or with enough money not to bother.
Monday, 13 October 2008
Afro-Ip wonders what use the publication will be if information, like the specification of goods and services covered by the trade mark, is missing.
Thank you for the emails requesting the OAPI journal. Afro-IP has made enquiries on your behalf and will let you know the outcome shortly.
Quoting from the article:
"Last month, [Peter] Mandelson said there was "no question of confining any country (that declines to sign an EPA) to outer darkness."
"A document expected to be rubber-stamped by the EU's foreign ministers Oct. 13 suggests that Guyana will therefore no longer benefit from the favourable treatment scheme for its Europe-bound exports that has been in place since 1975. As a result, it would be subject to higher tariffs on its exports of rice, rum and seafood. "
"Some African governments are worried that the action taken against Guyana could lead to similar action being taken against them if they do not sign EPAs. An African diplomat, speaking on condition of anonymity, described the EU move as "completely unacceptable", suggesting that it ran counter to assurances given by the Union earlier this year that it would display flexibility towards ACP countries which express particular concerns about the content of the proposed accords."
"Dalindyebo Shabalala from the Centre for International Environmental Law in Geneva branded the intellectual property provisions in the EPA as "extremely troubling." In a recent paper, he stated that these clauses are not designed to help the Caribbean develop in a way that benefits its societies and avoids ecological harm but to advance the EU's own "mercantilist interests". It is "astonishing", he said, that the EU is using this agreement to try to enforce rules originally intended for wealthy countries in poorer ones"
For more from Afro-IP on the EPA debate click here.
Friday, 10 October 2008
Does anyone know what the applicable royalty rates are for needletime rights? Is it possible to benchmark?
For a short history of needletime rights click here.
Some tatoo artists have been arguing that their customers also deserve needle time compensation...
Thursday, 9 October 2008
The Court had to determine whether marks used by the Defendant on its belts constituted an infringement of the marks belonging to the Plaintiff.
The Plaintiff is a registered proprietor of marks including two crocodile devices in class 25. It is also a registered proprietor of the LACOSTE trade mark in class 25. The Defendant is the importer of a consignment of twelve thousand belts which were first detained and later seized by the South African Revenue Service ("SARS") in terms of the Customs and Excise Act, 90/1964 read together with the CGA as being suspected counterfeit goods.
The basis of the detention and seizure was that the belts bore a mark similar to that of the Plaintiff's registered crocodile device.
The Defendant conteded that its mark does not resemble the Lacoste trade marks and therefore deception or confusion was not likely.
The Plaintiff's claim is pusuant to section 34(1)(a) of the TMA which reads: the rights acquired by registration of a trade mark shall be infringed by the unauthorised use in the course of trade in relation to goods or services in respect of which the trade mark is registered of an identical mark or of a mark so nearly resembling it as to be likely to deceive or cause confusion.
The Defendant's belts are clothing classified into class 25. The Plaintiff has registered its mark in that class. The Defendant's use of its mark is in relation to goods in respect of which the trade mark is registered.
The enquiry as to whether the Plaintiff's exclusive rights have been infringed is confined to the comparison between the two marks. The question is whether the representation of the two marks visually resembles each other to such an extent that it is likely that the average consumer might be deceived or confused.
The Plaintiff's mark is a crocodile device. The Defendant's mark is a lizard device. Both creatures face towards the right if viewed from the front. Both marks depict two visible feet of the creature. Both marks have stripes running lengthwise along the creature, which extend to the tail. Both creatures have a tail on the left hand side, if viewed from the front, and both tails are raised and turned above the body of the creature to point in the same direction that the head is facing, towards right.
The difference between the two marks is that the Lacoste crocodile device has an open mouth while the Defendant's device does not. The Defendant's mark has the word Anole in the centre of the device while the Plaintiff's mark does not.
The question is whether the depictions of the respective marks are such that they are so different and are clearly visible to the average consumer.
The Court referred to Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), where it was held that in an infringement action the onus is on the Plaintiff to show the probability or likelihood of deception or confusion. It is not incumbent upon the Plaintiff to show that every ... customer ... would probably be deceived or confused. It is enough for the plaitiff to show that a substantial number of persons will probably be confused as to the origin of the goods or the existence or non-existence of such a connection.
The Court also referred to Distilleerderij Voorheen Simon Rijnbende en Zonen v Rolfes Nebel & Co 1913 WLD 3, where it was said that to constitute an infringement of a trade mark there must either be an adoption of a trade mark or of its essential particulars, or one of them, or else a colourable imitation of the mark or some one or more of its essential particluars.
The Court found that the Defendant's mark has more than one of the essential particulars of the Plaintiff's mark, and the marks to be very similar if not identical. It found the impression of the two marks, even to an average consumer acquainted with the Plaintiff's mark, is likely to cause confusion, as there are no dominant or striking features that immediately serve to distinguish one from the other.
The Defendant was interdicted from infringing the registered rights of the Plaintiff in the LACOSTE crocodile device trade marks.
The Defendant was ordered to pay the costs of this matter, including the costs of two Counsel.
The court only dealt with the issue of infringement and unfortunately, apart from the description of the marks, Afro-IP does not have a visual format to consider. It is interesting though that the RSA courts (and apparently Counsel) chose to use 1913 and 1984 judgements as a basis for the test applied to contemporary infringement. With wording in the SA Trade Marks Act (1993) that is very similar/nearly identical to the European Harmonization Directive and the vast number of European judgements (and other South African judgements) on that wording, it is curious the Court (and apparently Counsel) did not seek to take advantage of that jurisprudence. I came to a similar conclusion when reading the draft Namibian legislation which differs from the South African legislation in places where, at first glance, it seemed more effecient to use tried and tested contemporary language from either the South African or European context.
Wednesday, 8 October 2008
Six months may sound like a long enough time but it is in reality very short and the penalty appears to that the registration becomes final and unchallengeable. As there is a provision for cancellation to the Oapi Courts this must refer to a period before registration of the trade mark?
Tuesday, 7 October 2008
Rwanda is looking at enhancing the competitiveness of its telecoms sector as the initial 5 year duopoly period comes to an end for Rwandatel and MTN Rwanda. This also comes against the backdrop of poor service and regular dropped calls on the MTN Rwanda network which led the Rwanda telecoms regulator to fine MTN an unprecedented 70 million Rwandese Francs.
Zain is competing for the third national license against Orascom Telecom's subsidiary, Telecel Globe Ltd of Egypt, Millicom from Luxemburg and Larrycom from Sudan.One of Zain's strongest selling points as a telecom brand is its world class 'one network' which enables subscribers on the Zain network in Africa and Asia to make cross border calls at local rates. This is one innovation European telcos would not welcome because of revenue generated from their expensive roaming charges.
Apart from its one network, Zain hopes to introduce world class communications services on the wimax platform as well as 3G and 3.5G telephony.
Some of the car's benefits are its long mileage after its lithium cells are fully charged, an expected 400 Km(249miles!). The other benefit is that unlike some other electric cars which have to be charged off a 3 phase power line, the Joule can be charged at home on a single phase line. Thirdly, the Joule comes with solar panels mounted on the roof to enable motorists benefit from solar energy, which can push the vehicle another "15-20km".
What is likely to be a short to medium term challenge is the chronic scarcity of reliable electricity in most African cities, especially East and West Africa.
Whatever the future holds for the 'Joule', Afro-IP welcomes yet another African innovation. Hopefully, it will be a strong brand among the new wave of green cars in the years to come.
Monday, 6 October 2008
24 Yes for cancellation
The Afro-IP members now regret not asking for reasons - it is relatively easy to work out why most readers followed the OHIM decision, but on what grounds did the 6 'No' votes base their vote? As for the 'Maybe' votes- have you come to a definite decision yet?
Next time we will include 'room for a view' when we hold a poll, and if anyone wants to tell us why they reached their decision this time round, write to one of us and, if the opinion is suitable for inclusion in a family publication, we will post it here (with or without acknowledgement of source, as you prefer).
The agreement is also intended boost the capacity of ARIPO member states to provide the means for research institutes, universities and the private sector to capitalize on the wealth of technical information available in patent documents. According to the Press Release:
For further information please contact the Media Relations and Public Affairs Section by phone +41 22 338 81 61 or 338 95 47 or fax +41 22 338 82 80. No email contact details are given.
"WIPO will also assist, where appropriate, in undertaking studies on the contribution of copyright-based industries to national economies, and the role of distinctive signs, particularly geographical indications, in the promotion of domestic and export trade. Cooperation will extend to building the capacity of copyright collective management organizations and enhancing rights management at the national and regional levels. In addition to the provision of technical and legislative assistance, cooperation will also be strengthened in establishing a legal framework for the protection on traditional knowledge and traditional expressions of folklore.
In a separate agreement relating to patent information and the dissemination of patent documents, WIPO will provide ARIPO with the necessary technical assistance to digitize and format its patent data. This will enable ARIPO to provide value-added patent information services to its member countries. WIPO and ARIPO will cooperate in the development of patent information tools to demonstrate the value of patent information and to increase awareness about the utilization of patent information. The two organizations will jointly organize symposia, seminars, workshops and other training programs in the area of patent information to address particular needs and requirements of users from ARIPO member countries. WIPO will integrate the patent information provided by ARIPO and its member states into WIPO’s patentscope ® Search Service to encourage the broader dissemination and use of this data".
Friday, 3 October 2008
Method of stopping a stolen car without a high-speed chase, utilizing a bar code Young Ill Choi
Thursday, 2 October 2008
Wednesday, 1 October 2008
As this blog has repeatedly reported, piracy is a huge concern on the continent and, as the article comments, the law is not functioning as a deterrent. However, whilst there may be justified calls for tougher penalties and better IP laws this does not appear to be the answer, certainly not the only answer. In fact, RSA has legislation that makes it fairly easy to obtain warrants (often without notice) and, as the raid rate suggests, the police are generally co-operative. The problem is multifaceted. Africa is considered a dumping ground for fake goods and run offs and there is demand because consumers are either not concerned about the fact that they are buying fake products or worse (particularly in case of pharmaceuticals) they are genuinely deceived. Brand owners can play their part too - Microsoft's latest drive to slash prices of genuine goods in Kenya is such an example.