Tuesday, 30 December 2008
The Bangui Agreement governing the OAPI Trademarks Law provides that once published, any interested party can opposed the registration of a trademark within a maximum period of six (06) months by filing a Notice of Opposition. After the expiration of the statutory period of 06 months, the registration certificate becomes final and unchallengeable. The deadline to comply with the procedure to oppose a trademark is fixed on the 20th May 2009. The OAPI jurisdiction is made up of sixteen countries.
Other happenings on 20 May 2009 (provided you are not preparing last minute oppositions) include a Depeche Mode concert in Belgrade on that day, an aircraft show in Dubai and an eLearning conference in Senegal.
Monday, 29 December 2008
The San traditionally used Hoodia Gordonii, which is indigenous to South Africa and Namibia, to fend off hunger and thirst. An agreement between the South African San Council and the Council for Scientific and Industrial Research (CSIR) -- which holds the patent on extracting the active ingredients in the plant -- entitles the San to a share of any profit that might arise from a hoodia weight-loss product that is developed using the council’s intellectual property.
In a short clinical trial that lasted just 15 days, Unilever discovered that the product had potentially dangerous side-effects, including increased blood pressure, and had no significant effect on volunteers’ calorie consumption. The company is said to have invested £20m in hoodia research over the past four years, but has now returned the development rights to UK-based Phytopharm, which licensed the rights from the CSIR in 1997. Phytopharm is still confident it can find commercial weight-management applications for the hoodia extract.
Afro Leo naturally admires the efforts of the various companies to find a saleable product that is safe and reliable -- but he has made a little bet with himself that the success of this quest may happen at a point soon after the CSIR's patent expires, at which point there wouldn't exactly be very much for the San to share.
Saturday, 27 December 2008
December 19th marked the 20th anniversary of the promulgation of the begining of Nigeria's current copyright law. The 1988 Copyright Decree replaced the Copyright Act of 1970, which had, in the words of John Asein, become "inadequate for dealing with the growing incidence of piracy and other copyright abuses." (The 1988 decree became the 1990 Copyright Act and was subsequently amended in 1992, 1999, 2004 and 2008.)
Former president of the Performing Musicians Association of Nigeria (PMAN), Tony Okoroji (pictured right), offered his reflections on the past 20 years of Nigerian copyright law. He discusses the difficulties he and his cohorts had in bringing the 1988 Copyright Decree into existence and touches on the current problems faced by copyright industries in Nigeria, such as the collecting society battles. Okoroji's review, taken from his forthcoming book, Copyright & Neighboring Rights in Nigeria, is a bit lengthy, but quite informative. Here's a brief summary:
Okoroji talks about the little amount of resources PMAN had when they began: " an unkempt secretariat with a backlog of rent, two unskilled and frustrated staff members who had not been paid for over a year, very little furniture, no telephone, one old Olympia typewriter, an incredible amount of expectation, a lot of debt and absolutely no money," and "a deluge of court cases." Okoroji vowed to have a new copyright law ready by the end of 1987 or else he would resign. When the end of 1987 arrived without the promised law, Okoroji says he attempted to resign, but was not allowed to do so.
Throughout 1987 and the beginning of 1988, Okoroji met with almost every minister in the Nigerian government. By April 1988, he and the PMAN crew and various ministries had assembled a large and diversely qualified team to write the new copyright law. The Ministry of Information and Culture played the largest role in this formation, which might explain why the Nigerian Copyright Commission was under this ministry until fairly recently when it was moved to the Ministry of Justice. The team of lawyers, scholars, and other IP experts locked themselves into a hotel room in Lagos and began pounding out the statutory text.
After meeting with the Law Reform Commission, which previously unbeknownst to PMAN was also redrafting Nigeria's intellectual property laws, the PMAN group submitted their final combined draft to the Justice Minister. Then months passed with nothing happening. It took a major organized protest in late November to get the military government into action. On December 19, 1988, the media announced that the President had signed the new Copyright Decree into law, Merry Christmas PMAN.
Wednesday, 24 December 2008
Broca’s website explains that its technology includes a new messaging product which is well-suited to direct response and consumer registration allowing consumers to sign up to services from the handset immediately regardless of location; this is particularly powerful for response to advertising seen on the move such as outdoor posters. Rather than the consumer having to remember or note a URL, they can send a text in to a shortcode and receive a registration text by response. Additionally, payment details such as credit cards can be taken with complete security. Sounds pretty cool!
One feels that Broca's technology could be well suited for a number of countries in Africa. For example it is complimentary to Google's investment strategy in Africa which is reportedly through the handset (as opposed to the computer terminal) and there are numerous reports indicating a telecoms and banking rush in Africa all of which indicate a growing market for Broca's technology. Amongst other things, robust IP regimes to protect Broca's technology in Africa would surely assist Broca attract funding and licensees.
Tuesday, 23 December 2008
The bill has had it share of controversy notably between the manufacturers and the civil society. The major point of divergence is the definition of counterfeit goods. While the manufacturers, who are hardest hit by proliferation of counterfeit products support the bill, the coalition on access to essential drugs are opposed to certain clauses of the bill arguing that the bill will curtail parallel importation of drugs. The argument goes on to suggest that Medicines are essential and lifesaving and therefore counterfeit medicine should be distinguished from other counterfeit goods such as DVDs, batteries.
Afro Leo , concerned about the proposal to distinguish counterfeit medicine from other counterfeit goods, wonders whether lifesaving medicine would come in handy if a counterfeit battery exploded and caused injury to a user. On the other hand, borrowing from the animal kingdom, he wonders whether the proposal is to do with a counterfeit kingdom where all counterfeit goods are manufactured equal but some are more equal than others.
Perhaps the break is a good opportunity for the drafters of the bill and two opposing sides to come together, agree on the way forward, and also iron out the glaring defects in the bill. As previous posted here it is questionable what the intention is when the bill recognises IP rights “subsisting in Kenya or elsewhere” given that IP rights are territorial.
An even bigger question is whether the bill is necessary at all. Is it really necessary to enact a new law to increase the penalties? Contrary to current thinking, the problem of tackling counterfeits is not the absence of a relevant law; rather the core issue is lack of enforcement of the existing laws and the minimal penalties imposed by such pieces of legislations. As recently posted here, when counterfeit drugs worth Ksh 5 million were intercepted, the court imposed the maximum penalty – a paltry Ksh. 5000 provided under the pharmacy and poisons Act. Is it necessary to enact a new law or just a matter of amending the existing ones to enhance the penalties and fines?
The other problem inherent with the existing IP laws is that enforcement of IP rights is primarily the mandate of the right holder. However, some of the laws like the copyright Act 2001 and the pharmacy and poisons Act provide for inspectorate officers who are mandated to scout for infringement activities. The bill proposes to establish a new agency to combat counterfeiting. It is therefore debatable whether a new and parallel agency will add any value or shouldn’t it be more efficient to empower the existing enforcement agencies and the police to investigate and act in cases of counterfeiting.
It also noted that none of the of the existing IP laws provide for boarder measures as stipulated under Section 4 of the TRIPS Agreement and presently the custom authorities have no mandate to stop counterfeit goods at the boarder point. While it is noted that the greater percentage of the counterfeit goods flooding the Kenyan market are imported, the customs department if empowered can play a bigger role in preventing entry of such goods at the entry points.
The customs and tax authorities should also be authorized to alert holders of IP right if they discover possible infringements while performing their duties at the borders. Such mandate would help the IP holders to discover possible infringements more easily and thus facilitate enforcement of their rights.
Monday, 22 December 2008
Apart from posing serious threats to local industries, the fake imports caused major health risks. Mr Cobina appealed to the general public to check and report any expired products found in the market, especially drugs, to the board for the necessary action to be taken.
Another speaker at the same event, Poland Detew Bour (Operational Manager of Unilever subsidiary Eye Awurade Ampaco Limited), underscored the health needs of individuals, while Unilever territorial manager Michael Ofori-Kumi announced that the company had reducedthe prices of its products to make them affordable for the general public, adding that, the company is now providing weekly credit sales to customers.
MapSwitch Uganda has partnered with Uganda Telecom (UTL) to launch a mobile money transfer (MMT) service come 2009. The Mapswitch product offering uses multiple user platforms such as "ATMs, mobile phones and point-of-sale terminals".
The new service hopes to target an estimated 95% of Uganda's over 30 million population that is un-banked. This service follows hot on the heels of Zain and MTN Uganda which reported their interest in fully launching mobile wallet services in 2009.
The emergence of MMT as a value added service on the East African scene as created a convergence of services, brands and technologies that should hopefully enhance the delivery of financial services in an unprecedented way. The grey areas in between financial and telecoms regulation will hopefully also lead to the development of soft law that will govern MMT.
Afro Leo calculates that the avg payout would be around R9250 (+-$1000) per writer/publisher which is good news, especially against the tide of piracy reports (resulting in lost royalties) affecting the local industry. Readers should note that the payout is less than it was last year and although the report cites volatile investment markets and a decrease in music sales, it also reports that Samro recorded a record year's gross revenue for the financial year to June...that said, much has happened since June.
Saturday, 20 December 2008
"Taken individually, countries and regions cannot meet the challenges posed by the climate change unless an international, global and committed co-operation is achieved," he explained, recommending, in this regard, that a "Multilateral Fund on climate related technologies be established to facilitate access to technology and address the constraints of intellectual property rights".
Thursday, 18 December 2008
Apparently the drugs comprising of 339,000 tablets were imported disguised as the original Panadol Extra brand, which is manufactured locally by GSK.
The head of inspectorate at the Pharmacy and Poisons Board, Dr Wilfred Oguta said that following an alert on the importation of the consignment they managed to intercept the drugs before they entered the distribution chanels. After analysis, the drugs were found not contain the correct active ingredients.
Importation and trade in counterfeit drugs has reached an alarming level in Kenya, putting the lives of many at risk because such drugs are not effective against illness they are supposed to cure. Importation of such drugs is mainly done under the guise of “parallel importation” – a term that is loosely used in Kenya to mean importation of the cheapest drugs available from any part of the world. In as far as an the imported drug is cheaper than that sold by multi nationals, it is generally defended as parallel importation.
Wednesday, 17 December 2008
and the study ‘Nashville in Africa’ by Mark Schultz and Alec van Gelder can be read here:
In the application filed in the High Court and certified as urgent by Lady Justice Joyce Khaminiwa, Mr Ondieki claims that he forwarded a proposal of the technology to Safaricom in April this year after which he was invited to demonstrate his invention in June. According to the suit, instead of finalising the deal with the plaintiff, Safaricom went ahead to implement the invention without his consent, apparently disregarding an agreement.
The plaintiff is seeking a permanent injunction stopping Safaricom from using the technology and an inquiry into damages suffered or alternatively an account of profits.
The plaintiff is required to serve Safaricom with the court papers for an interpartes hearing on Friday.
Source: Daily Nation Newspaper, Wednesday 17th December 2008.
The information available at this stage is sketchy to ascertain whether the plaintiff has patented the technology or he will pursue the matter purely based on breach of confidence. However, it should be interesting to observe how the case unfolds. It will be recalled that in 2005 in a copyright infringement case Alternative Media Services v Safaricom  eKLR, Safaricom was restrained from infringing copyright in an artistic work belonging to Alternative Media Services.
Tuesday, 16 December 2008
Mr Yustus Mkinga of the Copyright Society of Tanzania (COSOTA), told the workshop that COSOTA had embarked on vigorous licensing and anti-piracy campaigns that include filing copyright cases against adamant users, regular searches, raids and seizure of pirate copies as well as communicating with broadcasters on the requirement to pay copyright royalties (eg see report here). The three day workshop has been organized by the Tanzania Investment Centre in collaboration with the International Development Law Organization based in Italy.
COSOTA is a statutory body established in 2001 with the main aim of promoting creativity and protecting the rights of creators. It functions both as a copyright office responsible for implementing the copyright and Neighboring rights Act, No 7/1999 and as a collective management society for rights owners who have mandated it to administer the rights on their behalf. If you are aware of any infringements in Tanzania please contact COSOTA here. COSOTA's tariff and distribution rules can be located here.
Afro-IP wonders if there is not a real opportunity for a legitimate thriving business within this problem area. For example, one could incentivise the public to inform COSOTA by giving them a cut-back on bona fide collections. Cosota could afford to employ dedicated resource and lawyers (to the extent that they do not do so already)by agreeing costs based on performance by the resource, and Cosota could obtain more members by selling a self funding service that collects. Naturally the model is dependant on reliable enforcement system but it appears that some success has so far been achieved.
Monday, 15 December 2008
The South African insurance company, which deals in legal aid, was first to secure the name in Botswana, but its registration was apparently lost a few years ago after it failed to submit returns with the Botswana Registrar of Trade Marks. The name LEGALWISE Botswana was subsequently given to the Botswana company, which offers the same services. When the South African company decided to expand into Botswana, it discovered that its mark now belonged with the Botswana company. Following the failure of buy-out negotiations, lawyers acting for the South African company wrote to LEGALWISE Botswana, giving them an ultimatum to cease using the name LEGALWISE BOTSWANA or face litigation. If you want to read about the most recent posturings and and developments, you can do so here.
Afro Leo says, any business that lets its trade mark rights lapse and then gets uppity about them, and any business that nips in and secures a right that its original owner is likely to get angry about, may be "legal" but perhaps not so "wise". If this is so, perhaps the mark is deceptive whoever gets to keep it!
Friday, 12 December 2008
According to the Afro-IP Poll 100% voted in favour of COPE continuing to use the name with 33% believing that it would be conditional and 16% suggesting that COPE is not out of the woods yet and may still have trouble using the name CONGRESS OF THE PEOPLE if the IEC objects.
If anyone has a copy of the judgment, please email it here.
Yesterday we reported, to the disappointment of Afro-IP, that the High Court had reserved its judgement in the ANC v COPE matter . It occurs to Afro-IP that our audience, given the papers, may well be able to come to their own conclusion (quicker that the Court) or wish to pit their skills against the impending High Court decision and other readers. To enable you to do so we have set up the decision poll alongside. It's completely anonymous so take a few minutes and hand down your own decision.
In order to prepare, you can review the numerous media reports (including letters exchanged between the parties) and the actual evidence and arguments filed by the parties here. Following yesterday's post, Jeremy Speres, an alert final year LLB student at UCT, pointed out that the heads of argument filed by the ANC and the affidavit filed by COPE can be located here:
ANC Heads of Argument
The COPE Affidavit
Thursday, 11 December 2008
Reserving judgement with no time frame for the decision (which is how I read the report) is about as much of a let down as punching a pillow. If anyone has a copy of the heads of argument filed by the ANC, please could they email them here.
Wednesday, 10 December 2008
Reading this article, one wonders whether the activities of INTERPOL and its backers might be characterised as "too little, too late". There is also a sense of helplessness and lack of resolve on the part of Africa as the victim continent. Imagine if African nations were accused by China of supplying that country with counterfeit medical and other products: would the Chinese response be so ineffective? It seems most unlikely. But African middlemen are presumably among those who profit most from the peddling of these products, aided by largely poor consumers whose option for treatment is bounded as much by their lack of spending power as anything else.
Monday, 8 December 2008
In explaining the delay in commencement of the case, Justice Visram observed that whereas the suit was filed in 1995, it was not until 2003 when hearing commenced before Justice Githinji who was then a High Court Judge, before his appointment to the Court of Appeal. Thereafter the trial was further delayed because the proceedings before Justice Githinji had to be typed before a new judge could take over.
The law applicable at the time of filing of the suit was the repealed Copyright Act, Cap 130 and the claim was therefore governed by that Act. The plaintiff sought and was granted judgement for (1) an injunction, (2) an order for delivery up, (3) an inquiry as to damages or account of profit and (4) interest and costs.
In defence, the defendant contended that the plaintiff had no locus standi to bring the action because the maps in question bore a copyright notation of a British Company, Macmillan Publishers Ltd who was not a party to the suit. The defendant also counterclaimed that it was the plaintiff who had in fact infringed its copyright over its map, which was produced in 1990. As such and according to the court, the main issue was “whose map was first in time”.
On the question of locus standi, the court, citing Copinger & Skone James on Copyright (14th Edition) held that
* a person entitled to a copyright in equity may start an action and seek interlocutory relief relying on his equitable title.The court held that there was evidence that the British Company was the holding company of the plaintiff on whose behalf the maps were actually made. This made the plaintiff an equitable owner. In the meantime, the plaintiff had also obtained an assignment from the parent company and therefore had the locus standii to sue.
* the person, however, will not be entitled to final relief unless he has either joined the legal owner as a party (co-plaintiff or defendant) or obtained assignment of the legal title.
On the question of which map was produced first, the defendant argued that the plaintiff’s second map was not produced in 1989 but in 1990 after its own map had been produced and as such it was the plaintiff who was liable for infringement.
However, the plaintiff tendered evidence, which was accepted by the court, showing that its first map was produced in 1985 and the 1989 one was an improved version. On this, the court held that the plaintiff’s map was produced first and “given that the plaintiff had expended sufficient work in making the map”, the plaintiff enjoyed copyright protection. In addition, the plaintiff presented original notes and research materials that enabled the plaintiff to draw the map. According to the court, this strongly demonstrated the amount of work invested in producing the maps to give them an original character thus making them eligible for copyright protection.
The final question to be determined was whether the defendant’s map was substantially copied from the plaintiff’s map. Upon comparison of the two maps, the plaintiff’s expert witness demonstrated (and it was accepted by the court) that the plaintiff’s transparencies used to produce the map were the same as the defendant’s save for the fact that the defendant map was reduced to 64% of the plaintiff’s map. According to the expert, the defendant map bore “glaring similarities” with those of the plaintiff’s, which demonstrated a clear case of copying by the defendant.
The defendant was not helped by its two expert witnesses whose evidence did not impress the court as being consistent and truthful. Indeed the defendant’s second expert witness was found to have copied his report dated 27th September 200 from that of the first expert witness dated 13th November 1996.
From the evidence presented, Justice Visram concluded that there were huge similarities between the maps even to an ordinary person and the defendant had substantially copied from the plaintiff’s work. Relying on the case of Alternative Media v Safaricom Ltd (2005) eKLR, his Honour held that “infringement of copyright arises not because the defendant’s work resembles the plaintiff’s, but because the defendant had copied all or substantial part of the plaintiff’s work”.
The case can be downloaded here.
For the full contents of this issue click here. For advertising and subscription details click here.
Saturday, 6 December 2008
Friday, 5 December 2008
Source: David Taylor and Brechtje Lindeboom (Lovells LLP, Paris), writing for World Trademark Review.
Thursday, 4 December 2008
"ARIPO was mainly established to pool the resources of its member countries in industrial property matters together in order to avoid duplication of financial and human resources. Thus the preamble to the Lusaka Agreement [the Agreement on the Creation of the Industrial Property Organization for English-speaking Africa ie ARIPO] clearly states that member states are "aware of the advantage to be derived by them from the effective and continuous exchange of information and harmonization and co-ordination of their laws and activities in industrial property matters". Member states also recognized that the "creation of an African regional industrial property organization for the study and promotion of and co-operation in industrial property matters would best serve that purpose.""
The objectives of ARIPO are commendable and the success of other regional systems such as the Community Trade Mark, Madrid Union and OAPI should encourage further improvement at ARIPO which has had mixed reviews (see earlier postings here, for example). Africa is receiving increased attention (see report here) and if a regional system like ARIPO is able to provide an efficient world class service not only will it make money (see OHIM fee problem/success story here) ARIPO would probably find that achieving its objectives would be significantly easier. Recent decisions that have upheld ARIPO patents should help quieten its detractors (see earlier post here).
Wednesday, 3 December 2008
Post script: one might expect an image search for "Paris" to bombard you with the Eiffel tower. Yet the majority of pictures are of the blonde celeb Paris Hilton. Not only is she edging out the French icon on google images, but a search of the South African Trade Mark Register reveals that she has acquired distinctiveness in class 3 under trade mark number 2007/29220, something that Elvis Presley could not do in the UK. Like her or loathe her that's pretty (hit me) astute for the 27 year old.
Monday, 1 December 2008
The ruling was made at the 9th edition of the survey in which Safaricom was noted for its innovation and strong brand presence. Among the key products that Safaricom is noted for is the MPESA product, one of the newest products in East Africa in the area of mobile money transfer.
Other companies with notably strong brands are Kenya Airways which came in second and Zain (formerly Celtel) which came in third. This annual survey is a useful pointer to the growing strength of East African companies, with some of the top 5 holding net worth in Billions of US dollars. However, in future, there is need to take note of strong brands in the Small and Medium enterprise (SME) segment as well.
Ethiopia's Intellectual Property Office supports the new scheme, saying that the country must retain its intellectual property rights for the coffee brands it produces in order to give its farmers a chance to earn more and have enhanced negotiation powers. A credible system for coffee trading is seen as a means of enhancing the reputation of Ethiopia's coffee brands.
For more from Afro-IP on the BSA click here.