Monday, 31 January 2011
The ETMO, relying on the prior use and registration of the opponent, decided to allow the opposition since the registration of the word ITIMAT by the local company would confusion the public and lead to unfair competition -- quite apart from the fact that the word was part of the opponent's name.
Source: NJQ and Associates Newsletter, January 2011
Wednesday, 26 January 2011
When, wonders Afro Leo, will that be?
Current state of Singapore commitment here.
Tuesday, 25 January 2011
"Police are hot on the trail of the businessmen who ordered the hit on specialist policeman Warrant Officer Johan Nortje this week, and disclosed yesterday that the hero cop had made a R100-million counterfeit bust in Durban harbour three weeks ago....."
"Mandlenkosi Chiliza, 21, and Nkosinathi Ntuli, 27, were arrested during a raid on a home in Umlazi’s T-section at about 3am on Friday, and Bheki Khuzwayo, 44, was arrested in a separate raid in Maphumulo on Friday afternoon. During a raid in Umlazi, Philani Dlamini, 33, was shot and killed after he allegedly opened fire on officers as they went to arrest him - he is the man believed to have pulled the trigger and kille d Nortje. The other three will appear in the Durban Magistrate’s Court tomorrow. During the arrest, a Toyota Condor, believed to have been the getaway vehicle, and a 9mm pistol were recovered. Police spokesman Lieutenant Colonel Vincent Mdunge said it was “possible” that this was the gun used to kill Nortje, but that they were awaiting ballistic results." IOL news site
Afro Leo has emailed Interpol, WCO and expects to speak with KwaZulu-Natal police commissioner Mamunye Ngobeni today for comment. Although it is welcome that the police are taking this very seriously, the real instigators - those that ordered the alleged hit - are still at large.
In the meantime PLEASE VOTE - (see IPKAT comment here). Thanks to those that have and who have written in. Not all have been published.
Saturday, 22 January 2011
Those of us who follow intellectual property on the continent are no strangers to stories from Nollywood about filmmakers’ efforts to fight the rampant piracy of their films. But here’s a new twist, brought to us by a report from PIIPA, Nollywood has taken it’s battle across the ocean to the United States of America.
Manning the US front for Nollywood are the African Artists Collaborative, a non-profit that assists African artists with US copyright registration and legal help, and the Filmmakers Association of Nigeria, USA (FAN USA), which founded the African Artists Collaborative.
The report expresses the the need for these organizations in the recognition that “for the first time ever, Africans have been able to create a commercial product which has been accepted by large niche markets in the United States, the Caribbean and Europe.” Afro-Leo supposes that these large niches are the large diaspora populations as she has often, and only, seen Nollywood films available in hair shops and hair braiding salons, the most visible business establishments of the African Diaspora population.
So far, it seems that the African Artists Collaborative and FAN USA have been able to assist quite a number of African artists through copyright registrations, DMCA take-downs, information about civil suits, and pushes for criminal enforcement.
Nigeria and the United States are both members of the standard copyright treaties. Thus, all films are copyrighted in both countries without any formal registration processes. However, registration in the US offers some important benefits, including a presumption of a valid copyright and the ability to receive higher damages at trial.
PIIPA helps match African artists with pro bono lawyers who assist the artists with registration of their works. Over 100 films have been registered. An interesting adaptation of something familiar to the trademark world, a publication listing all African music and films registered in the US is released periodically in order to put people on notice of the works’ copyrights. And following in the footsteps of the Nigerian Copyright Commission, films registered in the US receive a hologram sticker notifying buyers of the work’s copyright.
The DMCA, Digital Millennium Copyright Act, refers to provisions in the US Copyright Act that allow copyright holders to stop infringements occurring online. One important provision allows the copyright holder to work with third-party websites that host content to remove posted material that infringes the copyright holder’s work. The copyright owner submits a notice to the website where the infringing material was found. The website removes the content from the site, a take-down, and notifies the user who posted the content that the material was removed based on allegations of copyright infringement. This process is, perhaps not very creatively, called “notice and takedown.” From here, it gets a bit more complicated and we’ll leave that for another blog. Another important provision allows copyright holders to request information from ISPs in order to identify the people or entities behind infringing websites. Identifying the infringer is an important step as it lets the copyright holder know who to sue.
There are a number of websites online where one can easily find Nollywood films for streaming and downloading. A good number of these sites are providing the films without the permission of the copyright owner. African Artists Collaborative is helping artists obtain information from ISPs and remove infringing content from the internet. Infringing content has been removed from over 50 sites and “AAC has identified at least 14 habitual offenders that we hope can be prosecuted in the near future.” Afro-Leo would like to note here that this sentence is a little misguided as posting infringing material online is a usually a civil liability issue and only a crime under certain circumstances. (See Sec. 504 (false domain name registration), 506 (for profit distribution with minimum value requirement) & 1201 (circumventing technical protection measures) of the US Copyright Act.)
Most copyright infringement in the US is a civil action, a conflict between the copyright holder and the infringer. In order to help with civil infringement suits, African Artists Collaborative assists artists with the sending of cease and desist letters to infringers. Cease and desist letters are the first step in the road to a civil copyright infringement law suit. Though the report does not say so, Afro-Leo guess that PIIPA also helps match pro-bono attorneys to artists to assist with these actions. FAN USA also hopes to match artists with firms to handle actual litigation against these infringers. As most US states allow contingency fees, this is a chance for attorneys to assist without that pro bono tag.
One of the major activities highlighted by the report is a raid of stores selling infringing Nollywood movies in Kings County, New York City, New York. Afro-Leo was very surprised to read about these raids and about the Kings County District Attorney’s involvement in conducting the raids. She hardly ever hears of such things happening in the US and other than one case in her copyright law textbook (about secondary liability) cannot think of a specific instance of such occurring in the US. Either store raids for infringing goods are very infrequent, or they aren’t the national news story in the US that they are in Nigeria.
Although, Afro-Leo’s understanding is that District Attorneys’ offices usually focus on prosecution after the police have made arrests, not on enforcing the law in the streets, the King’s County DA’s office seems to be more active in enforcement (about 2/3s way down the page) and crime prevention. It even has community contact centers where people can report instances of copyright infringement and other suspect crimes.
FAN USA is very proud of its work in helping conduct this raid. The website showcases a number of pictures from the press conference afterwards. If it weren’t for the muzungu District Attorney in the center of the photos, Afro-Leo would swear they were taken in Nigeria. Congratulations to African Artists Collaborative and FAN USA for producing such a successful raid.
Afro-Leo’s Concern: Mis-information
While the work being done by PIIPA, FAN USA and the African Artists Collaborative is proving to be very beneficial to African artists, the report released by PIIPA and the FAN USA website raise some concerns for Afro-Leo. Despite the promotion of IP education for African artists, there is still a lot of misinformation presented.
The FAN USA website instructs artists to register their copyrights with the US Patent & Trademark Office. Afro-Leo can guarantee that this will not work as the US Patent & Trademark Office (USPTO) handles only, you guessed it, patents and trademarks. Copyright registrations are handled by, you probably guessed it again, the US Copyright Office.
Glosses over the distinction between crimes and civil matters are common in both the report and materials provided on the FAN USA website. Unfortunately, this is not at all unique in the US or Nigeria. Afro-Leo also wishes the report would make a clearer distinction between having a copyright and registering a copyright, but again, this is another often confused concept.
IMPORTANT NOTE: These misunderstandings are most likely not the responsibility of PIIPA. Although PIIPA released the report, it appears to have been written by a FAN USA board member (though this is not entirely clear from the report itself). From Afro-Leo’s experience with PIIPA, it is a very professional organization with knowledgeable and experienced attorneys.
Accessing the Full Report
The full 4-page report is available in pdf form under a CC BY-NC-ND license, which means that you can download, print, email, share and distribute however you see fit to all your friends as long as you don’t do so in a way that is primarily designed to give you a commercial benefit (ie don’t sell it), and you don’t make any changes to the document.
Friday, 21 January 2011
“DM Kisch anti-counterfeiting team is shocked and deeply saddened by the untimely death of Inspector Johan Nortje, who was so dedicated to the fight against anti-counterfeiting. We have worked together with Johan Nortje for many years and his enthusiasm, dedication, professionalism and pride to his work cannot in anyway be faulted. He will be sorely missed and the team wishes to extend our heartfelt condolences to his family friends and work colleagues. DM Kisch Inc supports an urgent special investigation into Inspector Nortje’s murder”
The Managing Director of "Cabinet ISIS” and staff was deeply shocked to learn of the death of Officer Jacobus Nortje. ...., we support the calls for an urgent investigation (with the assistance of the WCO and Interpol) into the death of Officer Nortje
We support the calls for a thorough investigation into Mr Nortje's death, and in particular into the allegations that his death came as a direct result of his role in tackling anti-counterfeiting activities in South Africa. Enforcement officers must be free to do their work without fear of death, injury or intimidation. The IBML Trade Marks and Anti-Counterfeiting Team - see full statement below
“Adams & Adams’ Anti-Counterfeiting Team is deeply saddened by the abrupt passing away of Inspector Johan Nortje. Our concern is exacerbated by the speculations that he was murdered for being an excellent and dedicated Police official.
We worked and interacted with Inspector Nortje for many years in relation to anti-counterfeiting matters and we can attest to the fact that he was dedicated and committed to the eradication of counterfeit and other illicit goods being imported into the Republic of South Africa and fought the proliferation of the scourge of these goods in this country. He demonstrated exceptional investigative qualities and outstanding moral standards. His passing is an enormous loss, not only to his family, but to the South African government enforcement community at large.
"Bowman Gilfillan's Anti-Counterfeiting Group was shocked and deeply saddened to learn of the death of Warrant Officer Jacobus Nortje earlier this week. The passion and enthusiasm with which he applied himself, was a daily testament to the personal pride he took in doing a very difficult job, well. He was a wonderful ally to the anti-counterfeiting community, always willing to assist - often before his help had even been requested. His professionalism and integrity will be sorely missed. We support the calls for an urgent investigation (with the assistance of the WCO and Interpol) into the death of W/O Nortje, especially since it has been linked to his vital role in the fight against counterfeit goods entering South Africa through Durban harbour. If, as suspected, this link is established his death should dispel the myth that counterfeiting is a victimless crime.
Our heartfelt condolences go out to his family and law enforcement colleagues.
We join the call for an urgent investigation."
"The IBML Trade Marks and Anti-Counterfeiting Team were shocked and saddened to learn of the murder of South African customs officer Inspector Jacobus Nortje. We support the calls for a thorough investigation into Mr Nortje's death, and in particular into the allegations that his death came as a direct result of his role in tackling anti-counterfeiting activities in South Africa. Enforcement officers must be free to do their work without fear of death, injury or intimidation. Our condolences go out to Mr Nortje's family, friends and colleagues at this sad time."
Cameron Olsen - Head of Legal IBML (ed - responsible for the worldwide management of brands including Dunlop, Slazenger, Lonsdale, Karrimor, Sports Direct and others)
Thursday, 20 January 2011
Meanwhile another very urgent issue needs your attention please. Yesterday's very disturbing news has attracted much comment and, in particular, a call for our community to petition an urgent investigation into the death of "Norje" with the help of Interpol and WCO. If anyone can help us compile a post for that purpose eg you worked with him or wish to comment, please write to us at firstname.lastname@example.org. We hope to have a post ready tomorrow.
Wednesday, 19 January 2011
Tuesday, 18 January 2011
Since the birth of this blog three years ago, Afro-IP bloggers and readers have attended the African regional focus at the annual INTA conference (see here, here, here, here and here for reports). The session has gradually grown over the three years with last year's session attracting some healthy debate and relatively decent numbers. Although most INTA focus sessions receive paltry attendance in comparison to the large number of people who attend the conference, they are an opportunity to place a region or interest in the program and give the significant membership access to presentations which have benefit after the event. It is, without doubt, an opportunity to promote African IP on the biggest stage in our IP community and it is an indictment that it is no longer on the program (thanks to Aurelia who noticed it and contacted INTA).
Monday, 17 January 2011
Friday, 14 January 2011
- the development follows 27 years of parental strife - and the loss of about 2 million lives - culminating in a peace agreement in 2005
- Afro Leo could meet Jimmy Carter, an international observer at this week's referendum on the new nation
- the potential new nation will have around 9 million people, mainly Christian
- it evolves from a country that is likely to be an Islamic Republic governed by Shari'a law
- new IP will or has already been created:
- the new national anthem is a collaborative work of 49 poets
- its distinctive brand is mooted to be names such as Nilotia, Nilotland and Cush
- valuable knowhow is expected from companies such as Total who are now free from sanctions to prospect for oil in untapped concessions
- a new national IP office could be a source of income for the country and job creation but will need to co-operate with the current office to ensure that current rights holders in the territory do not lose rights
Tuesday, 11 January 2011
Friday, 7 January 2011
In order to try to rectify the situation, two features have been implemented. The first is the increase in the fees charged for filing. The fees for filing a registration have effectively doubled and the fees for renewals, searches and pretty much everything else you can think of have increased significantly as well. This change was implemented by Senator Jubril Martins Kuye, the present Minister for Commerce and Industry in line with Section 45(1)(e) of the Trademarks Act which allows for the Minister to prescribe “the fees to be paid in respect of applications, registrations and other matters”. All in all the increases have been significant and taking into account the number of registrations that are filed and the consequent renewals necessary, it would be of great assistance in making the registry more efficient.
The second feature that has been implemented is even more dramatic. The entire trade marks registry has relocated. It has moved to what we can only assume (and hope) is a more spacious building with full time electricity and a more effective system for organizing the files. This writer has not actually had the pleasure of visiting the new registry in our Nation’s Capital personally but remains quietly confident that the move will indeed result in the increase of productivity. When making enquiries as to when I would receive certain documentation from the trademarks registry just before Christmas, I was told to be patient and assured that the move will indeed result in a more efficient system.
So there we have it, the days of disorder and chaos at the trademarks registry will soon come to an end… and there is still no need for the use of a computer (does anyone else sense my sarcasm?)!!!!!!!!!!
Please leave any and all comments after the jump and share any personal experiences you’ve had with the registry, old or new.
Thursday, 6 January 2011
A line of clothing, a company that provides DJs. The two sound different enough that sharing a similar name shouldn’t be a problem, like a record label and a computer hardware manufacturer. But for Swaziboy Entertainment and Swazi Boy Africa, it’s not that simple. Much like Apple Records and Apple Inc., the two have found themselves in some overlapping territory. Unlike the Apple brands, however, this is not the story of two long established companies unexpectedly moving into overlapping areas. Swazi Boy Africa is a fairly new company and according to Swaziboy Entertainment, the two-word Swazi Boy is intentionally stomping on its ground.
Swazi Boy Africa is a t-shirt-only clothing line produced by Nkhosi Clothing. (Facebook photos showing the clothing line here.) Swaziboy Entertainment is “a promotional and events management company that specializes in providing entertainment in birthdays, engagements, weddings, corporate functions, Christmas and New Year’s Eve parties.” (More info on their extremely hard to read MySpace page here.)
Swaziland uses the international classification system for trademarks. (Section 16, Trademarks Act of 1981. Note: This is not the most recent TM Act for Swaziland, but is the most recent available online. Information about changes made in the 1994 Act are available here.) Products like clothing (class 25) are in different classes than services like entertainment (class 41), so it seems like there should be no problem.
Things aren’t quite that simple though. Swaziboy Entertainment also has t-shirts and other clothing items with its logo on them. And to complicate things more, the owner of the Swazi Boy Africa t-shirt line is also in the music industry; he’s a hip hop artist. And a hip hop artist that performs at the same venues as hired DJs. (example) This means, it is quite likely that both Swaziboy Entertainment t-shirts and Swazi Boy Africa t-shirts could wind up promoted at the same events.
Visually, the marks are very distinctive from one another. The Swaziboy Entertainment logo features a red hut for the “A” and a red dancing man for the “I”, the word “Swaziboy” written out in one long line with “Entertainment” smaller below it. The Swazi Boy Africa logo is a two-color logo, the words “Swazi” “Boy” and “Africa” each on different lines within a Swaziland-shaped figure. The “O” in “Boy” is also shaped like Swaziland. Nkhosi has similar “Swazi Gal Africa” shirts.
According to an article in The Times of Swaziland, Swaziboy Entertainment is currently attempting to negotiate with Swazi Boy Africa. Whether the negotiations are to stop production of the Swazi Boy Africa shirts or work out some sort of licensing deal, Afro-Leo does not know. According to The Times, if an agreement is not reached, Swaziboy Entertainment will be taking Swazi Boy Africa to court.
In order to have a cause of action for trademark infringement, the mark needs to be registered. (Section 20 Trademark Act 1981.) Afro-Leo was unable to find out if either of the marks are registered. If they are both registered, the registration serves as prima facie evidence that the mark is valid. (Section 7.)
If the mark of the complaining company is not registered, the only matter of recourse is passing off. Given the great differences in the two marks and the statements by Nkhosi company that it’s t-shirt line in no way is related to Swaziboy Entertainment, passing off may be hard to show. Additionally, Nkhosi is based in and has sold most of its shirts in South Africa, outside Swaziboy Entertainment’s market.
What also may be important, and is unknown to Afro-Leo, is the commonality of the phrase “Swazi boy” in Swaziland and the surrounding areas. Is this a fairly generic term that Swazi male youth use to refer to themselves? If so, Swaziboy Entertainment may have a hard fight ahead of them.
Afro Leo would love to hear readers thoughts on the dispute, especially from those readers familiar with Swazi trademark and passing off law.
Wednesday, 5 January 2011
|If only counterfeiters were voodoo dolls|