Thursday, 28 January 2010

Another case for indigenous knowledge protection, but how?

Up to 85 percent of the world’s population relies on traditional healers and medicines to meet their health care needs. In Uganda, for example, the ratio of traditional healers to population is 1:200, contrasting dramatically with biomedically trained health professionals, for which the ratio is 1:20,000. In the Andes of South America, there are no psychiatric or mental health services available to the Indigenous Peoples who therefore depend entirely on traditional healers, family and community support to cope with their mental health problems and to relieve their psychological distress, according to Psychiatrists and Traditional Healers.

"Traditional healing relies heavily on oral religious healing traditions and secular codified medicines. (ch 12) It becomes there a problem to assure that countries who have been contributing with their knowledge on plants and medicines have received neither money or recognition for that. Considering that pharmaceuticals are an important part of Western medicine, for a fair collaboration, intellectual property laws should be addressed concerning this since traditional healers have contributed directly for development is [in] science. (ch 4) (Metapsychology Online Review)

Another case for indigenous knowledge protection, but how? Noseweek's scathing commentary on RSA's attempt, entitled Netshitenze's Lemon excites critics but poses no solutions.

"MacDonald Netshitenze was appointed Registrar of Patents and Trade Marks in the mid 90s and a black man with attitude, and no background in IP, was about as welcome as a wet fart in a space suit. His new Bill will lead to all sorts of absurdities as it seeks to give protection to things which are not original, making traditional knowledge the antithesis of intellectual property."

Wednesday, 27 January 2010

Kenya - KRA gets police protection

"Please find attached an extract from The Daily Nation. The Police have now joined KRA officially in the fight against fake goods. Useful because the AC act is getting legs now with the anticipated publication of the Rules subsidiary to the Act." (Comment: John Sykei - IP expert based in Niarobi). The Daily Nation report:

"The police and the tax collector on Wednesday announced plans for joint operations to fight graft and the dumping of substandard goods in the country.

Police Commissioner Mathew Iteere said that tax-paying traders were losing heavily as counterfeit goods continued to flood the market. The police, he said, would work together with the Kenya Revenue Authority (KRA) to stamp out counterfeit goods.

He noted that export products were also finding their way back into the country, adding that this had made it necessary to have police officers and KRA officials at exit points. “This will ensure that we complement each other in enforcing the law,” the police commissioner said.

He was speaking during a consultative meeting between the police and the KRA at the Kenya School of Monetary Studies. KRA commissioner-general Michael Waweru welcomed the joint effort, saying it would lead to a decrease in tax evasion. “This collaboration will help eliminate trade in counterfeit goods and tax evasion,” he said.

He said the KRA hoped to achieve a revenue collection target of Sh545.2 billion this financial year from the Sh480.6 billion in the 2008/2009 fiscal year. Mr Iteere said the joint effort was part of internal reforms in the Police Force.

Divert goods

The commissioner of customs, Mrs Wambui Namu, noted that the issue of counterfeit goods was rampant. “The extensive and porous Kenyan borders pose an enormous challenge to customs coverage.” Such areas, Mrs Namu added, were used by tax evaders to dump and divert transit and export goods. The revenue authority undertook to cooperate with the police and share information and resources."

Afro Leo is delighted by the news but wants to know what, if any, solution there was regarding the contentious clauses making generics counterfeit. Thanks John and the Daily Nation.

Tuesday, 26 January 2010

WHO's strategy good news for Africa but what about IP?

"The World Health Organization (WHO) is considering a plan to ask governments to impose a global consumer tax on such things as Internet activity or everyday financial transactions like paying bills online. Such a scheme could raise "tens of billions of dollars" on behalf of the United Nations' public health arm from a broad base of consumers, which would then be used to transfer drug-making research, development and manufacturing capabilities, among other things, to the developing world (sounds like good news for Africa). The multibillion-dollar "indirect consumer tax" is only one of a "suite of proposals" for financing the rapid transformation of the global medical industry that will go before WHO's 34-member supervisory Executive Board at its biannual meeting in Geneva." (Foxnews

"In May 2003 [WHO] established an independent, time-limited body, the Commission on Public Health, Innovation and Intellectual Property Rights, to collect data and proposals from the people and institutions involved and present an analysis of intellectual property rights, innovation and public health, including appropriate funding and incentive mechanisms for the creation of new medicines and other products against diseases that disproportionately affect developing countries. The Commission concluded that intellectual property rights provide important incentives for the development of new medicines and medical technologies. Those rights are not, however, an effective incentive when patients are either too few or poor. As a result, there is a gap in the innovation cycle: in some cases no product exists to address the health needs of the poor, and, in other cases, products exist, but little effort is made to ensure that they are affordable for poor communities. Other incentives, financial mechanisms and coordination among stakeholders are needed."

Published a few days ago is the full Report of the Expert Working Group set up by WHO as a consequence of the Commission's conclusions to develop proposals for new and innovative sources of financing, to stimulate research and development. Some of the controversy over its publication (including an apparent neglect over IP rights) is revealed by Foxnews here.

Monday, 25 January 2010

biopiracy in Alice

The town of Alice, in the Eastern Cape, might soon become as wellknown as its Australian namesake. A local community there intends to stop the exploitation of its traditional knowledge by a large multinational. The German company Schwabe Pharmaceuticals wishes to patent a method for extracting an active ingredient in cough medicine from the roots of pelargonium plants. The community, on the other hand, says that this method has been used for generations by traditional healers and that many Southern African peoples have used the plant to treat respiratory problems.
The community is supported by the Africa Centre for biodiversity, although the South African government is not a party to the action, instituted in a Munich court.
The full story, written by Yolandi Groenewald, appears in the South African Mail and Guardian here http://www.mg.co.za/article/2010-01-22-town-like-alice-takes-on-german-biopirate

Thursday, 21 January 2010

When bad milk looks like sour grapes

Afro-IP encourages comment but two articles "in answer" to its post "Is Uganda's proposed anti- counterfeit goods legislation bad milk?" were really quite unexpected.

Alec van Gelder of the International Policy Network kindly wrote in:

"Here’s a response from International Policy Network, a think-tank based in London, to the rather alarmist interview with Sisule Misungu [Musungu] that we think rather misses the point: http://bit.ly/7JhxpK. The usual activist argument against IPRs ignores the glaring reality that the poor in poor countries would benefit for better protection of all property rights – tangible and otherwise – and that in some case this really is a life or death issue."

The Daily Nation, on the other hand, really went to town. Their article "Kenya May Buy Ugandan ARV's" by Business Daily surely goes some way to exonerating Uganda's president as a naive politician and makes a case for comprehensive IP legislation to protect home grown IP rights.

Musunga, should you be ashamed.

Wednesday, 20 January 2010

Is Uganda's proposed anti-counterfeit legislation bad milk?

Afro Leo has come across an interesting Q&A session with Sisule Musungu president of Geneva-based IQsensato, a non-profit research and communications organisation providing a platform for developing world researchers to influence international policy-making on development. In short Sisule argues that 'Intellectual property rights constitute one of the last comparative trade advantages that industrialised countries enjoy.' and that the adoption of these laws by for example, Uganda, perpetuates the need for industrialised countries to preserve their global trade position [as opposed to genuinely assisting developing countries.] He believes that the President of Uganda has been hoodwinked into believing that anti-counterfeit legislation will solve the problem of children drinking bad milk and that resources set aside to set up anti-counterfeit measures eg customs monitoring by the likes of Interpol simply diverts Interpol from its core function. You can read Q&A session held by Christi van der Westhuizen and Wambi Michael on the IPS website here.

The problem this Afro Leo has with the comments of Musungu is that his apparent cynicism of what motivates global trade (which may be entirely correct) affects his judgement of whether anti-counterfeit legislation is per se good or bad. Yes, he was asked to explain the position against the backdrop of the certain controversial provisions which may affect access to cheap drugs but he does not reconcile his apparent distaste for anti-counterfeit legislation (as a totality) with the need to somehow also protect the fruits of the research of those his organisation represents. To be fair he was not asked to, but he would probably find that anti-counterfeit legislation, as a concept, would assist those researchers.

Paul, any thoughts?

Tuesday, 19 January 2010

ARIPO grows

The Republic of Liberia has become the latest African country to join ARIPO. They deposited the Instrument of Accession to ARIPO on the 24th of December 2009 and both the Harare and the Banjul Protocols will enter into force with respect to the Republic of Liberia on the 24th of March 2010.

Liberia becomes the 17th member state of ARIPO, the 16th amongst states party to the Harare Protocol (for patents, industrial designs and utility models) and the 9th amongst states party to the Banjul Protocol (for trademarks).

States currently party to the Harare Protocol are:

Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe.

States currently party to Banjul Protocol are:

Botswana, Lesotho, Malawi, Namibia, Swaziland, Tanzania, Uganda, Zimbabwe

The Republic of Liberia is also party to the Patent Cooperation Treaty (PCT).

This note which appears on the Aripo website was kindly sent to Afro-IP by Charles Pundo (right) of ARIPO.

Afro Leo would like to know whether Liberia has domesticated the Aripo Protocols.

Monday, 18 January 2010

Ethiopia aims to capitalise on its coffee trade mark experience

Years after its sensational battle with the Coffee giant Starbucks regarding the trade mark dispute over coffee, Ethiopia plans to register geographical indications protection over emblematic home garden products like coffee, beans, spices and condiments or aromatic plants. The Home Garden Project, launched in 2006 and originally intended to run until 2010, has identified local agricultural products suitable for geographical indication (GI) protection, in the hope of improving incomes to the local farming communities. The project seeks to promote and develop native horticultural productions, while preserving in situ the biodiversity of the country's gardens by offering communities legal protection over their biodiversity resources.

The Ethiopian Parliament is expected to pass the country’s first GI legislation later this year. The WTO requires that a country seeking an international protection of GIs should first protect GIs through its domestic legislation. Although Ethiopia is still in accession negotiations regarding membership to the multilateral trading system, its interest in a GI system coincides with the interest of other developing country members which, under the Doha Rounds of Negotiations, have aligned with the EU in supporting the extension of the WTO’s heightened protection for wines and spirits to other agricultural goods beyond wines and spirits.

Written by Tegasher Worku Dagne; posted by Jeremy

The Bullring

The Bidvest Wanderers Cricket Stadium, affectionately known as the "Bullring" because of its intimidatory atmosphere, is a relatively small ground with steepish stands capable of accommodating 35000 passionate cricket fans in the heart of Africa’s commercial capital - Johannesburg. Add to this, dramatic thunderstorms, the final test against the English in a must win for the host country, 30 degree heat, some controversy, a fast bouncing pitch and it is very difficult to avoid getting a ticket if you have an opportunity to watch a late afternoon session, like this blogger had on Saturday.

The advantage of a five day cricket test, even in a late afternoon session, is that there is time to observe. If you think that advertising space on the back of a toilet door has value, it is nothing in comparison to the opportunities for marketers to exploit the thinking time of a captive during a cricket test and somewhat healthier for the captive too!

Apart from the RSA ambush of three slips, a gully and short leg to thwart England’s attempt to launch their rearguard action that evening, Investec were taking on Standard Bank (Africa's largest bank) in their own form of aggression - competitive advertising. An electronic billboard flashed relative newcomer Investec every so often conveniently against the backdrop of the impressive Standard Bank hospitality suite. Not only did Investec get the space, the flashes managed to mimic the white on blue colours of the market leader.

Not to be outdone, the food and beverage industry was raging its own battle. Coca-Cola, no stranger to competitive marketing, was doing its best to upstage local market leader in the sports drink category (Energade) with its Powerade billboard alongside. Meanwhile, Nando’s, probably RSA’s most successful international food franchise brands and well known for its opportunistic marketing, found itself selling its food alongside a Nino’s eatery adorned in a similar white and green. It is when you see what happens in sports stadiums that you consider the impact of (and some argue, reason for) the controversially restrictive Metcash ambush marketing decision ahead of the Fifa World Cup 2010 or why the 2003 Rugby World Cup was not offered to New Zealand in 2003, over stadia contractual disputes.

Moving away from competitive marketing, it is interesting to note that despite the efforts of Steyn, Morkel and/or Parnell, whose bowling caused havoc that evening, their success is unlikely to ever be as commercially valuable to a sponsor as the batting scalps they claim, simply because the advertising space on a batsman’s bat is more prominent for television viewing. There was also a notable absence of law firm advertising. Perhaps this is because of budgets cuts or because sports box hosting is passé for legal service firms?

Finally, during one of the rain/bad light breaks, the electronic scoreboard lit up with a message. It was not a New Year’s message but an order that all spectators “shall not discriminate” described in about 20 words, which included “acts“ which might “intimidate” those of a different “national origin”. Plainly, it did not stop the partisan crowd cheering the fall of an English wicket or the intimidatory marketing on display. It was hardly intended to either.

Thursday, 14 January 2010

Africa Needs Strong ICT Policies

Thanks to a Denise Nicholson (aca2k) tip-off, Afro Leo has come across this article (Africa Needs Strong ICT Policies) which strikes a chord with this blog. The author, Joseph Musakali who teaches at the school of information sciences at Moi University in Kenya, describes how the open access movement has significant part to play in encouraging debate and fostering innovation. He cites the arrival of this first of four new fibre optic cables in Africa (see adjacent pic) last year (which touch ground in Kenya, Tanzania, Mozambique and South Africa) as a key development in facilitating Africa's knowledge sharing environment. He urges researchers and scientists to petition their governments to put ICT (Information and Communications Technology) policies in place. Blogging is of course a direct beneficiary of such technology. (photo source: www.comm.ae)

Tuesday, 12 January 2010

Goodwill Hunting – attempting to split goodwill from an unregistered mark (the Incledon case)

A Western Cape High Court decision published in December flirts with the notion that a common law trade mark can be assigned without the goodwill of the business concerned. The case concludes that, on the facts, the particular unregistered trade mark was assigned with goodwill but the reasoning appears to endorse a view that an unregistered trade mark is capable of existing independently of goodwill albeit perhaps inextricably linked. Lawyers drafting business sale and purchase agreements should be cautious though to expressly state that an unregistered trade mark includes goodwill. The agreement in this case simply referred to "unregistered trade marks" which the respondent claimed did not include goodwill.

“The writers [Neethling & Van Heerden] express the view that the primary function of a distinctive [unregistered] mark is to distinguish an entrepreneur's own product from similar products, hence the mark has distinguishing value. The mark can exist independently of the undertaking and does not necessarily lose its value when such business ceases to exist. The mark can exist independently of the goodwill of the business, since it could continue to have value long after the business has closed down. It can therefore be assumed that when an entrepreneur assigns a distinctive mark to a third party, by implication he also transfers the goodwill or part of it which he has created. The distinctive mark or name individualizes the undertaking and contributes towards attracting custom and therefore the creation of goodwill. The distinctive mark can become an important, if not the most important component in the formation and development of goodwill.” Para 25 of the judgment.

The reasoning is difficult to follow. It seems to say that goodwill and a distinctive unregistered trade mark can exist independently of each other but that assigning them separately is not possible. Registered trade marks can of course be sold without goodwill.

If one purchases a right to an unregistered trade mark then the question one always asks is what are you purchasing, if you do not purchase the right to the goodwill symbolized by that trade mark? In this case, if one purchases a business as a going concern that trades using a distinctive trade mark then that unregistered trade mark is distinctive because of its inherent nature and/or because of the use made of it by the seller (the two methods of creating distinctiveness are recognised by the Trade Marks Act (see Section 9(2)). The use of the trade mark generates reputation which is a component of goodwill. Such goodwill would, in Afro Leo’s opinion, as a matter of logic therefore be included in such a sale.

Click here for Afro Leo's summary and other comments

Click here for information on how to split hairs
Click here for information about how to do the splits

Monday, 11 January 2010

Tanzania Intellectual property Body launched

According to All Africa news, a new network has been established in Tanzania to sensitize the general public on Intellectual Property rights.

The Tanzania Intellectual Property Rights Network (TIP- Net)was launched at a workshop on livestock keepers' rights, traditional knowledge and intellectual property in December in Arusha, Tanzania. One interesting aspect of the network is that it will publish a quarterly newsletter on Intellectual Property rights.

The organisation will be headed by Mr. Laltaika, a Phd Candidate at the Max Planck Institute, and will work closely with BRELA, Tanzania's Business Registration and licensing authority as well as the Copyright Association of Tanzania.

This development is quite welcome not only in Tanzania but in the region as a whole, since widespread ignorance of the purpose and functions of Intellectual Property are in part responsible for infringement. This is especially so in the area of copyrighted materials and trademarks. The challenge will be to conduct sensitization continuously and among a broad spectrum of entities and people to ensure enduring results.

Friday, 8 January 2010

New domain name extensions for Kenya

Via the Lexsynergy team comes news that, on 28 December 2009, the Kenyan domain name registry (KENIC) launched three low-priced Second Level Domains (SLDs):
• .me.ke for personal names (£15.00 per year)
• .info.ke for information (£18.00 per year)
• .mobi.ke for mobile content (£18.00 per year)
Anyone who owns a co.ke domain name or who holds trade mark rights in Kenya should give serious consideration to securing that domain name or trade mark in the three new extensions too.

Trimega continued

The Trimega saga, reported on Afro-IP by Darren earlier this week, has now been resolved. The report in Business Day, available at http://www.businessday.co.za/articles/Content.aspx?id=90870, does not give much clarity on the legal issues involved, apart from saying that the IP concerned belonged to Trimega, not the local firm with which it had a co-operation agreement. Judge Burton Fourie, in the Western Cape High Court, confirmed an interim interdict preventing the local firm, Real World Diagnostics, from using the relevant IP. Real World says it will appeal the decision.
For the rest of us, the instant breathalysers that would have made drink-driving more easy to police, appear to have taken a back seat.

Thursday, 7 January 2010

Inspiring, Exciting, Concerning?

China, goes to Africa "In the last decade, trade between China and Africa has mushroomed to over $106 billion. In his new book, La Chinafrique photographer Paolo Woods explores how the Chinese are changing life on the vast continent"

Africa, Business Destination A little dated but good.

Perhaps all three.

Wednesday, 6 January 2010

Road rage - alcohol testing company not pleased

A business relationship between a British and South African company that tested an easy-to-use roadside alcohol test in SA has soured, with the UK partner going to court to protect its intellectual property. Trimega Laboratories, a British drug and alcohol testing firm will find out tomorrow whether an interim interdict preventing South African partner Ashley Uys from using intellectual property relating to the tests for Uys's own financial gain will be made final, according to this report in AllAfrica. Afro Leo would welcome more information about this case which appears to show the risks of technology transfer arrangements as well as the effectiveness (or perhaps not) of South African courts when asked to protect IP developed outside of RSA, in RSA. Afro Leo's own experience in these types of cases is that registering IP in RSA (if and where appropriate) can often provide an easier enforcement mechanism (than relying only on a contractual arrangement) for the foreign proprietor of the IP.

Monday, 4 January 2010

The First January Post

Some of Afro-IP’s most popular, controversial or thought generating posts last year include the following (in no particular order):

· The ongoing counterfeit problem (including access to drugs) throughout Africa and possible solutions

· The spate of SCA trade mark cases in RSA and commentary

· Graham Gilfillan being sued by Samro for defamation (including for comments posted on this blog) and then successfully defending his position in court

· Kenya’s controversial decision not to have jurisdiction to revoke ARIPO patents

· India’s protest over Kenya’s new anti-counterfeit legislation

· The Russian NIGAZ branding blunder in Nigeria

· South African content providers’ strike and success in helping to bring the SABC to its knees, forcing board resignations and a request for a government bail out

· Kelbrick v Dean over the controversial Metcash ambush marketing decision ahead of FIFA’s World Cup tournament in Africa in 2010

· CIPRO’s dramatic fall from grace by being implicated in CIPROGATE - a fraud scandal by employees of its office

· The comments of LLM student Natasha Rey which forced a media statement from CIPRO and helped facilitate better decisions at informal hearings

· Kenya, Uganda, Tanzania, Burundi and Rwanda helping to forge the East African Common market – the East African Community

· INTA’s annual Africa Update and the Rolex Gang capture outside the IP Crammer™

· Zimbabwe’s high advertisement cost scandal

· The race for firms and brands to get a footprint in Africa

· Efforts to protect indigenous knowledge through IP rights protection

This year Afro-IP will be extending its coverage of IP news and views across Africa. Look out for new initiatives and in the meantime, Afro-IP wishes its readers all the very best for 2010 and thanks you for your continued support.