"the manufacturing, producing, packaging, re-packaging, labelling or making of any goods which are imitated so as to be substantially similar to the protected goods without the authority of the intellectual property (IP) right owner subsisting in the country or elsewhere"The minister is quoted as adding that Uganda’s interest in such a law is to have its industries protected from counterfeiters whom he said are targeting all Ugandan products.
Friday, 30 April 2010
Wednesday, 28 April 2010
Indigenous and Economic Empowerment Act and Regulations - background and some uncertainty
Take for example a brand business - there is likely to be a greater emphasis by the foreign IP owner on terms and conditions governing the use of the brand (such as quality control, minimum sales and revenue targets, exclusivity, auditing etc) to ensure that his return on investment is maximised and to minimise possible damage to the brand, in the absence of control at board level. Furthermore there will be greater attention paid to the ownership of foreground IP (IP developed during a licence by the licensee) so that, from a foreign owner's point of view, his IP does not become a launch pad to progress at local level which may in future make the foreign owner redundant if that IP is owned locally. Investors will need to carefully consider not only local IP and contractual laws but also speed and reliability, if there is ever a need to enforce them. The recordal of licenses at the local registry could also protect the foreign IP owner from any future claims that IP is owned by the national company.
The new laws, which will be sector specific, are also likely to increase the need for trade mark and patent filings by investors because those filings function as title deeds to their property and therefore are a critical comfort. There is likely to be a need for foreign brand owners to file defensively in Zimbabwe because locals may see these new laws as an opportunity to squat or use reputable foreign brands without consent, as happened to Mcdonalds and a host of others, when sanctions were applied against South Africa in the 80s. Furthermore, because a change of control caused by the indigenisation policy may lead to termination of existing licences (as this type of provision frequently ends up in termination clauses) current licenses may well need to be reviewed as part of any indigenisation plan. This review is likely to lead to re-negotiations of existing licences for the reasons given above.
Other IP considerations
Tuesday, 27 April 2010
Monday, 26 April 2010
The advertisement in question promotes a new contract deal with copy that reads: “Subscription fee R39 PM x 24” and “including R50 airtime per month incl. VAT 25 x SMS”. The consumer complainant submitted that this advertisement is misleading as she discovered, upon signing the contract, that the quoted R39 monthly subscription fee excludes other mandatory costs which, when included, would add up to a total cost of R80 per month.
While both Clauses 4.2.1 (regarding misleading claims) and 19 (regarding pricing policy) of Section III of the Code are applicable in this complaint, the Directorate chose to rely solely on Clause 30 of Section III of the Code, which states that contracts for post-paid cellular telephone services are to state prominently the minimum total monthly cost at which that contract may be entered into. As this advertisement did not prominently state this minimum cost, it fell foul of the Code and the advertiser was ordered to withdraw the advertisement and not use it again in its current format.
Sunday, 25 April 2010
"In conclusion, there are several interventions that could further improve the selection and quality of drugs. First, for the selection of drugs, the essential drugs list should be regularly updated, and provincial therapeutics committees should be established or strengthened. Updated and locally relevant information on efficacy and safety of antiretroviral drugs should be disseminated. For the quality of drugs, results of quality control tests should be used as the basis of prequalification of suppliers in adjudicating tenders. Law enforcement, particularly within the developing country context, should be strengthened in order to combat counterfeit drugs."
Saturday, 24 April 2010
Source IPS news
A this point Afro-IP is not sure of the meaning or effect of the "suspension" and doubts whether the ruling actually changes anything with regard to the Act "confusing" generic and counterfeit medicine. Afro-IP would appreciate to get a copy of the ruling for further analysis, and at least to learn how the Court determined that the Act applies to "generic medicine".
Friday, 23 April 2010
This coming Monday, 26 April, is World Intellectual Property Day. The folks in Zambia, led by the new Zambian Association of Musicians (ZAM), are busy preparing for the special day.
Beginning this weekend, viewers of Zambia’s television stations will see new public service adverts encouraging the respect of intellectual property. The adverts, produced by ZAM and the Zambian government feature hip hop star and ZAM Publicity Secretary, C.R.I.$.I.$. If the advert becomes available on the net, Afro-Leo will be sure to add a link.
In addition to the ongoing television adverts, there will also be a march on Monday to commemorate World Intellectual Property Day. The march will take participants from the Lusaka Post Office to the Lusaka National Museum. The marching group will include musicians, members of ZAM and members of the Zambia Copyright Society (ZAMCOPS). If you happen to be in Lusaka on Monday, join in; everyone is welcome to walk with the group and help promote awareness of intellectual property rights. The march begins at 9am.
Afro-Leo wishes the organizers of the march a happy and successful World IP Day.
Wednesday, 21 April 2010
"Legal context and key points: The global trade in counterfeit goods is growing at an alarming rate. Africa is increasingly being targeted as a destination for counterfeit goods. A new trend has been identified by the World Customs Organisation's Counterfeiting and Piracy Unit. It indicates that Africa is being used as a transit route for counterfeit goods, posing an indirect threat to European and American markets. This new trend challenges existing African anti-counterfeiting strategies. Africa's response by way of legal reforms, national and international co-operation is explored in this article.
Practical significance: The disproportionate size of Africa's informal or "parallel economy" (compared to that of Western nations), coupled with its rising economic fortunes, impacts on the counterfeiting problem. By adopting creative business models, IPR owners are finding new ways to combat counterfeiting."
JIPLP can be subscribed to here.
Tuesday, 20 April 2010
Swaziland is of course landlocked which means that this seizure and arrest is likely to be indicative of a far greater problem coming through the ports. Indeed, the same article states that over 60 000 fake South African national team shirts have been seized in the past 45 days. Afro Leo can believe this - cheap (and likely fake) Bafana Bafana shirts can be bought at traffic lights he passes through on his way to work.
Bafana Bafana is the nickname of the South African national side which is likely to make enforcing the trade mark difficult - a problem also faced by the Springbok rugby emblem discussed here. The name Bafana Bafana has to be shown to be a trade mark (ie an indication of trade origin for goods/services) and not just a nickname for the national side for it to be able to sustain a counter attack under the Trade Marks Act that it is not a trade mark. To borrow from both Jacob and Harms - "Does the use of Bafana Bafana denote a chink in the distant cash registers of SAFA?"
Take for example the picture alongside - is this a picture of a man with a flag from or made under the control of the registered owner of the Bafana Bafana trade mark, SAFA? Or is this man just showing his allegiance to his national team or indicating that the flag, is the flag of his national team? In other words is BAFANA BAFANA capable of functioning as a trade mark or is it simply a nickname of the national side, coined, as it was, by the Sowetan in 1992 and made valuable (not by SAFA - not that necessarily matters but is interesting nonetheless) but by the public? SAFA will have trouble enforcing its numerous BAFANA BAFANA trade marks - this case decided in 2002 also reminds us just how much trouble they might have.
Monday, 19 April 2010
The complainant submitted that the advertisement is discriminatory and offensive as it stereotypes gay men as being effeminate and aspiring to be drag queens.
In response, Hollard submitted that it had received positive feedback about the advertisement and that no research studies on the campaign had indicated that consumers found it offensive or discriminatory. It submitted that the “We get you” copy shows acceptance, rather than prejudice and that the advertising was tongue-in-cheek and humorous.
In determining whether the advertisement was discriminatory, the Directorate referred to a prior, similar complaint and found that the mere depiction of a characteristic (in this case, homosexuality) cannot in itself be discriminatory as envisaged by the Code of Advertising Practice. It was pointed out that in order for a finding of discrimination to be found, the advertisement would have to exclude people based on their sexual orientation. In this case there was no evidence of any benefits being withheld due to the sexual orientation of the subject and, indeed, an implication of acceptance and understanding is represented by the “We get you” copy.
In its assessment of whether the advertisement is offensive, the Directorate found it pertinent that South African culture does not view homosexuality as disreputable and so there is no reason why the hypothetical reasonable person would view the advertisement as “anything more than a light-hearted depiction of the potential aspirations of the depicted character”. In light of this and the fact that the advertisement is not discriminatory, the Directorate found that the advertisement is not likely to cause the type of offence prohibited by the Code and the complaint was dismissed.
Wednesday, 14 April 2010
Details of this conference are sketchy and hard to come, especially the bit on IP. The IBSA website (here) is not that helpful although there is a good overview of the organisation (especially the difference between BRIC and IBSA) here. Some suggested topics for the IP agenda then, from Afro Leo:
- Risk Management - Can Brazil host the IPL - are their IP laws up to scratch?
- Bayh Dole replications: How to get publicly funded research legislation through?
- Negotiation tips: the effectiveness of Brazil's threat of sanctions and IPR violations against the US
- The Kenyan anti-counterfeit legislation - India rallying support
- IP outsourcing demand and outsourcing outsourced work - when will India's cheap resource run out?
- Search engine optimization - getting IBSA to number one
One a slightly less flippant note, anyone with information relating to IP on the trilateral memoranda, please email it here.
Tuesday, 13 April 2010
Monday, 12 April 2010
Jo'burg (O.R Tambo↔ Durbs
Jo'burg (Lanseria) ↔ Durbs
Cape Town ↔ PE
A consumer complaint was lodged that the advertisement was misleading in terms of Clause 4.2.1 of Section II of the Code of Advertising Practice. It was submitted that the use of the double arrows gives an impression that the advertised price is the cost of a return airfare and not a one way trip, as intended by Kulula.
Kulula's response was that the offer is clearly for a one way fee and that this meaning could be determined from the wording "fly to these great destinations" and not "fly between" or "fly back and forth between". The double arrow merely indicated that the prices are valid on each route, in either direction.
The Directorate considered whether the hypothetical reasonable person would interpret the double arrows to imply that the prices quoted were for a return trip. It took into account Kulula’s reputation as a low cost airline and pointed out that while R299 for a return trip between the destinations advertised would be exceptional, it would not be impossible. It found that the hypothetical reasonable person would construe the arrow to indicate direction.
It was determined that in isolation, the copy “Fly to these great destinations...” may imply that the price was for a one way trip, but in combination with the double arrows creates confusion. The hypothetical reasonable person could reach either conclusion: that the price quoted was for a one way trip, or a return trip. In light of the ambiguity, the complaint was upheld and Kulula was ordered to withdraw the advertisement and not be used again in its current format.
The article explains that Ugandans will be paying licences to photocopy published works once a new body, the Uganda Reproduction Rights Organisation, comes into force later this month. This initiative seeks to promote intellectual property rights of copyright holders and to ensure that authors benefit from their works. Content users will be required to pay an additional fee for photocopying literary, artistic and other works protected under the Copyright and Neighbouring Act 2006. This Act provides for the establishment of a collecting society to promote and encourage creativity in the artistic, literary and scientific fields in Uganda. Money which it collects will be distributed to authors, the amount depending on the average number of copies made of each author's works in a year. The article adds:
"Students in universities and other institutions will be most affected by the measure since most lecturers rely on handouts, which are photocopies from published works.
According to the copyright law, reproducing published works without the licence of the copyright holder or their agent is an offence, which attracts a fine of sh2m, a four-year jail term or both".
Friday, 9 April 2010
Details of the new Bill will be posted here soon as we have them. One of the fundamental proposals in this law that will be welcomed by brand owners is the registration of service marks. The Financial Services sector was liberalized in Uganda over 15 years ago. This encouraged banks, insurance companies and other financial service providers to invest in Uganda. Investment in Uganda has also been spurred by Telecommunications and Broadcasting companies keen to reap big in one of Africa's most liberalized markets. Other areas that will benefit are advertising and marketing agencies and hospitality related services such as hotels.
None of these companies has been able to effectively protect their brands as service providers since all classes from 35 to 45 have been closed to applicants. The new law will also provide clear remedies for infringement and protection of non traditional marks such as scent marks. The mechanism of examination of non traditional marks is yet to be clarified on.
Thursday, 8 April 2010
Wednesday, 7 April 2010
According to the information received, this word is a contraction of the words "technology boutique". The portal is directed specifically at the process of adding tangible value to IP:
"Tektique is a collaboration between South Africa’s leading higher education institutions and research institutions. It was developed with support from the Department of Science and Technology’s National Intellectual Property Management Office in 2009 and was incubated by InnovUS, the technology transfer company of Stellenbosch University. In addition to providing a ‘showcase’ for South African IP, Tektique provides member institutions with a lead generation report, customized for that particular technology, for each posting. This report consists of relevant potential industry partners for each new technology, descriptions of the identified companies, as well as the details for a contact person at each of these companies".Tektique also has an IP policy. According to its FAQs:
"6. Who owns my IP once it is on Tektique
All IP loaded onto the Tektique website is the property of the institution from which it comes .... Any and all commercialisation that comes from this IP will be the property of that institution. Tektique exists to be the platform that connects the IP owners with potential partners or funders. Tektique takes no shareholding or remuneration for this service".
"Firstly, implementing a state-run healthcare system is not a way of reducing levels of counterfeit medicines. The Member of Parliament’s rather bizarre comparison between France and ‘Africa’ would be amusing if it wasn’t so dangerously misleading. One could just as easily look at the situation in the USA, where there is no universal healthcare system (as yet) and extremely low levels of counterfeit medicines.
Piyush Diwan, 14th December 2008, "Presence of flourishing fake medicine racket in Orissa confirmed by Vigilance reports”,
“Why watchdogs failed to bark”, 27th March 2010"
Tuesday, 6 April 2010
"The Kenya Anti-Counterfeiting Act says “counterfeiting means taking the following actions without the authority of the owner of intellectual property right subsisting in Kenya or elsewhere in respect of protected goods – (d) in relation to medicine, the deliberate and fraudulent mislabelling of medicine with respect to identity or source, whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging” (my emphasis). Do you interpret this definition of counterfeit medicine as including legitimate generics? [Darren Olivier - no I do not] Again, the definition in the Act is almost identical to the official WHO definition counterfeit medicines.
Sunday, 4 April 2010
Recently, consumer lodged a complaint to the ASA against an Outsurance Insurance Company (Pty) Ltd television advertisement depicting a family driving in a car in which, he submitted, “one adult and one child are shown not wearing or having discarded their seatbelts while driving”. The complainant found this advertisement to be irresponsible (in contravention of Clause 1.2 of Section I of the Code of Advertising Practice) and depict illegal and unsafe activity (falling foul of Clause 3.3 and 13 of Section II of the Code).
In response, Outsurance pointed out that in the first scene complained of, the child could only be seen from above the shoulder line and it is impossible to conclude that he is not wearing a seatbelt. This scene lasts approximately 2 seconds in the entire 35 second commercial. In the second scene complained of, the adults portrayed are not wearing seatbelts. However, in this scene the car is in a driveway and not on a public road, where it is not illegal not to wear a seatbelt. Furthermore, in the rest of the advertisement, the adults are clearly shown to be wearing seatbelts, so it may be assumed that, having arrived home safely, they removed their seatbelts.
The Directorate considered whether the actions depicted in the advertisement are likely to encourage people to emulate such behaviour. It also considered the advertisement as a whole and not for a fleeting scene where the seatbelts were not visible. It was noted that all other scenes clearly show seatbelts being worn. The Directorate found that neither scene complained of would encourage any hypothetical reasonable person to drive without a seatbelt and would likely be very much aware that seatbelts are of vital importance. Such person would not discard them on the basis of the “fleeting and insignificant scenes” relied upon in the complaint. The complaint was dismissed.