Friday 28 February 2014

Darren Olivier

AUC Chairperson cries foul, but eish


no abuse please
According to an AU press release, "[t]he Chairperson of the African Union Commission, H.E. Dr. Nkosazana Dlamini Zuma on Thursday, 6 February 2014, held a brief meeting with the Director General of the World Intellectual Property Organisation (WIPA), Mr. Francis Gurry, who was on an official visit to Ethiopia. They discussed areas of cooperation between their two institutions.


The AUC Chairperson and WIPO General Director talked about the indigenous knowledge component that Africa increasingly produces, which constitute an important aspect of intellectual property with great economic value, but which is currently being ignored. They agreed on the need to pay closer attention to Africa's property rights, in particular, and the intellectual property system as a whole.
The two also arrived at the understanding on the necessity to step up political momentum necessary to overcome some of the challenges in the sector, notably getting full engagements from the industrialists, who are feet-dragging for as long as possible, in order to continue with the abusive exploitation.
While calling for respect of Africa's property rights, she welcomed the AUC's collaboration with the Africa International Property Organisation (OAPI) and WIPO, to bridge the justice gap, while ensuring that the necessary international treaties are enacted to stop the exploitation."
Ed - The fact that Africa has been a victim of abuse has as much to do with our own inability to use and implement good IP systems and laws that have been available to us for decades (this blog is full of examples) . There is also abuse because Africa, in general, does not know how to use the systems available to it to generate wealth, improve competitive positions, collaborate effectively, protect culture, attract and use investment opportunities. Those that have (eg South Africa) are now under pressure relax their laws. The focus should be on education, money for infrastructure, empowerment, institutional efficiency and capacity building, not a cry against abuse which will continue to have little effect. That said, collaboration and close scrutiny of treaties to ensure that there is fair treatment is laudable.
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Thursday 27 February 2014

Darren Olivier

Joining the dots slower than expected for dotAfrica

The deadline for the submission of names for inclusion in the dotAfrica Reserved Names List has been extended because governments have been slow on the uptake, according to the African Union. You can read more about this development here.

Meanwhile Neil Dundas, has stepped down as the ZA Central Registry CEO to take up a role as the COO. Neil was acknowledged as one of the IT personalities of the year in 2012. The developments do not appear to be linked and news of Dundas' move is located here and here. The CEO role will now be taken up by Lucky Masilela.


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Wednesday 26 February 2014

Caroline B Ncube

IP policies in Africa: no 15 Djibouti

Djibouti's IP laws are available on WIPOLex here . Djibouti's patent law (Industrial Property Law No. 050/AN/09)  has come into force but (see here) but the country is yet to issue any patents (see IP stats here). As Kingsley found here and here, the country still lacks an official Industrial Property office website (see here) .

The country does not yet have an IP policy. The WIPO Technical Assistance Database lists a meeting here that was held in 2010 that from the limited information available, seems to have discussed IP policy-type issues. However, as a member of COMESA Djibouti subscribes to COMESA's IP policy ( which was reported upon here).
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Darren Olivier

AFRO-IP Linkedin requests

Indira TK has posted the following update on the Afro-IP Linkedin Group Forum - can anyone assist her?

"The Ugandan Industrial Property Bill that was passed last year (August 22, 2013), has been signed into Law by the President on January 06, 2014 (ed- thanks for this). 

The Act indeed incorporate the provisions like the elimination of criminal sanctions for patent infringement, included model provisions on TRIPS waivers on pharmaceuticals, patentability criteria for the case of Novelty steps-left to persons highly skilled in the art to determine Newness of an invention among many other good provisions. 

In particular, Section 8(3)(f) excludes pharmaceutical products and test data from patent protection until January 01, 2016 or such other period as may be granted to Uganda or least developed countries. Can any one provide clarity on whether the patents that are already been granted (through ARIPO) be enforced according to the new law i.e. from January 01, 2016? 

Oh, and there is a also request for a worldwide trademark filing project by Zafaraullakhan, You can reach him here.



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Monday 24 February 2014

Darren Olivier

AMC IP Masterclass & LES's forum on the IP Policy

Two worthwhile conferences on IP - LES's panel discussion on the IP Policy and feedback from AMC's Annual Intellectual Property Protection, Distribution and Costing Masterclass.

Topic:  The Draft IP Policy: What are the issues?

Date: Tuesday, 25 February 2014

Venue:  New offices of Adams & Adams (Sandton), 2nd Floor, Building 1, 34 Fredman Drive, Cnr of 5th Street, Sandton (S -26.106429 / E 28.049952 - Map attached to registration form)

Time: 16:00 to 17:30

Panel discussion: with panellists Prof. E D Du Plessis; UP and Chair: Standing Committee on IP of the LSSA and Mr. P J Roos; Policy Consultant at SACCI and Prof Pouris; UP School of Technology Management 

Moderator: Danie Dohmen; Partner and patent attorney, Adams & Adams

About the topic:  On 4 September 2013 the DTI published a draft national policy on IP for comment. The draft IP policy has caused much debate and various comments on the draft IP policy were submitted to the DTI. The discussion will highlight and unpack some of the
important issues emanating from the draft IP policy.

Catering: Drinks and snacks will be served following the discussion

Cost: LES members: R80 per person; Non-members: R150 per person

RSVP: Please make payment and return your completed registration form by e-mail here  .


Annual Intellectual Property Protection, Distribution and Costing Masterclass

Last Friday, this Afro Leo presented at the AMC 2nd Annual Intellectual Property Protection, Distribution and Costing Masterclass arranged by the ever efficient Matshego Njumbuxa and focusing on the practical aspects of IP in business.



The attendance was modest but engaging. [It co-coincided with lull in the tension played out in Port Elizabeth where Australia and RSA are testing their knowhow in an epic test cricket showdown (no amount of patenting can protect against Steyn's reverse swing or Mitch's bouncer). Series is one-all.]

My own contribution can be viewed below or if you are receiving this by email - here IP Models for Africa or on the blog. Other speakers are listed in the program and we would be happy to share their presentations if they send them here.


 
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Thursday 20 February 2014

Darren Olivier

RSA case update: Firstrand v First Central & Moneyweb v Media24

Thanks to Jeremy Speres (Floor Swart) for this guest post:

When I began reading this judgement I was desperately looking for a distraction from my disappointment at Liverpool’s exit from the FA Cup at the hands of referee Howard Webb, assisted by Arsenal.  I had heard that the judgement involved FirstRand Bank seeking revocation of a registration for a device mark incorporating FIRST CENTRAL INSURANCE.  FirstRand of course is the owner of various registrations incorporating FIRST.  I was therefore hoping for a juicy read covering issues like laudatory marks and perhaps some clarity on the “series principle” and whether Judge Harms’ comments in the Upjohn and Cowbell cases regarding that principle were obiter (as argued in the McDonalds case).  Alas, it was not to be, but the judgement was interesting for two other reasons.

Form of TM application

looks clear to me!
Firstly, FirstRand had sought revocation on the basis of a provision that is not commonly encountered – Regulation 13(4) (a year’s free subscription to Afro-IP for the first one to recall the provision in the comments! - hint, click here).  Essentially, the regulation requires representations of marks to be clear and distinct.  Firstrand argued that parts of the mark in question were obscured and unidentifiable and presented a photocopy of the Register in evidence.  The court rejected this argument for the following reasons: a) The court could not compare the photocopy with the actual register; b) the regulation permits the Registrar to call for additional representations if not satisfied, which did not occur, indicating that the Registrar was satisfied; and c) the court applied the section 51 presumption that registration is prima facie evidence of validity.  It seems that the burden of rectifying the register on the basis of a contravention of Regulation 13(4), and perhaps, by extrapolation, other “manner and form” type regulations, is a heavy one!

Intent to use

Secondly, FirstRand sought revocation on the basis of section 27(1)(a), which provides for revocation where the mark was registered without any bona fide intention that it would be used and no use has in fact been made of the mark.  The owner of the mark could only adduce evidence of a handful of insurance claims and some correspondence as proof of use.  Interestingly, the court found it telling that a practising attorney deposed to the respondent’s affidavit and would have appreciated the need to provide substantial evidence of use and yet was unable to do so.  Ultimately, the court found that the respondent had “no serious intention of carrying on a trade as a commercial enterprise” and granted the application for revocation.  The court cited the judgement in the recent New Balance decision where it was stated that “clear and compelling” evidence of use is required and allegations that are “sparse, ambiguous or lacking in conviction” will not be accepted.  This case again highlights that, although use on a substantial scale is not required, courts are prepared to interpret the requirement of bona fide use strictly, against use that may on the surface seem legitimate but that ultimately does not exhibit a serious intention to trade commercially. [Ed also bringing RSA more in line with European decisions on this issue.]

Moneyweb v Media24

In a totally unrelated matter, those who have been following the fascinating Moneyweb v Media 24 dispute involving aggregation and copyright should take the time to read Roger Hislop’s well-reasoned if not somewhat polarising piece on MarkLives.com, but not before they’ve read the answering papers filed by Media 24 in December.  In fact, Roger’s piece is so assured that I for one wouldn’t be surprised to find some of his arguments in the replying papers!  To whet your appetite and perhaps give you an idea of what’s at stake, here’s what Roger believes will happen if the court and the media don’t act to prevent the kind of churnalism Media 24 is accused of:


“And then our society will no longer have a Fourth Estate with the will and the skills to crack open the Defencex scandal, penetrate the e-toll spin, or hack through the Zuma spy tape evasions. We will just have 5 Mind Blowing Things You Never Knew About Belly Fat.”
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Wednesday 19 February 2014

IPcommentator

Korea is solely funding ARIPO's ICT project, says Fernando Dos Santos

KOICA
Last month, Afro-IP learned of the impressive ICT project underway at ARIPO but was left curious about its sponsor(s). We now understand that Korea International Cooperation Agency (KOICA) is the entity providing the 'entire' funds for it. Says Afro Leo, well done, Korea

Afro-IP is looking forward to the successful completion and implementation of this landmark project.
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Friday 14 February 2014

AfroTwiga

Friday Fallout

A few note-worthy items for your reading enjoyment, in case your Valentine's Day plans involve reading IP-related news...
It's Friday, I'm in Love!

For the 3 (or perhaps fewer) Afro-IP readers who are not also following the IPKat, this posting regarding a very recent decision in the Court of Justice of the European Union is particularly worth noting. The issue is whether a webpage, by providing a link to copyrighted material, may be infringing the copyright. In short, the answer is "no" provided that the link does not enable a "new" audience to view the copyrighted material. A "new" audience would be one that did not have access to the original content - for example, non-subscribers to a subscription-only journal. This is a critically important decision (which, this Leo thinks, comes to the perfect conclusion). To the extent that any similar cases are brought in African jurisdictions, it is greatly hoped that the courts will look to this CJEU decision for guidance.

It is difficult to know whether to cheer or to despair this news reported at IP Watch, but the Office of the US Trade Representative has released it's list of Notorious Markets, i.e., countries and markets that are Notorious for violation of IP rights, particularly in marketing pirated and counterfeit goods. Not a single African country or African market was mentioned in the list. So, either Africa is doing so well in combatting counterfeit/pirated goods that it is not a Notorious Market, or Africa is so far from the radar of the United States that they don't know we exist that we are not worth the digital ink that they don't feel it's time yet to turn the spotlight on African markets.

Finally, again from the IPKat, we learn here of progress toward a EU directive on Collective Management of Copyright-related rights. The best part about this report is one of the reasons underpinning the directive: "The functioning of some collective management organisations has raised concerns as to their transparency, governance and the handling of revenues collected on behalf of right-holders." It's just nice to know that the same issues that plague CMOs in Africa (see here and here, for example) are also a problem in Europe! It is said that misery loves company (although hopefully not for our dear readers on Valentine's Day).
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Tuesday 11 February 2014

Caroline B Ncube

IP policies in Africa: no. 14 Cote d’Ivoire

Cote d'Ivoire currently does not have a national IP policy (see a listing of its IP texts on WIPOLex here).* There is no listing of any IP policy formulation technical assistance (see WIPO database search results here) so it appears that a policy is not yet in the offing. Bitterly disappointed and seeking comfort, this Leo looked up IP news and trivia that has a (sometimes tenuous) link to Cote d'Ivoire, some of which she shares below.

Cote d'Ivoire renowned for its soccer players, national soccer team (the elephants) and cocoa. It has a lot on the line as far as IP and trade in IP protected products and services are concerned.
source: British Museum
source: wikipedia
source: wikipedia commons

The country is the world's leading producer of cocoa and there are significant concerns about sustainable cocoa farming, fair labour and pricing practices in view of the high profitability of end products such as chocolate bars and beverages. The trademark protection of these products has led to several disputes.

Nestle sources cocoa for the production of its Kit Kat from Cote d'Ivoire from where it committed to purchase fairtrade cocoa in 2009 (see here ) and has since obtained fairtrade certification for its UK Kit Kat products (see here). In South Africa, Nestle has been embroiled in a trademark dispute with IFFCO over its Kit Kat brand. In November 2013 the Pretoria High Court ruled that IFFCO's Tiffany Break did not infringe the Kit Kat trademarks (see the judgement here). Nestle is taking the matter on appeal to the Supreme Court of Appeal (see media report here).
source: Daily Mail UK 
source: Confectionery News

source: Confectionery News

After the vain search for IP policy but somewhat soothed by the above image, news and triva haul, this Leo is now going to have a break... and take a nap (not a Kit Kat!)
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* thanks to Hafeni Ashimbonde for his research assistance.
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Monday 3 February 2014

IPcommentator

International Patent Forum 2014, 18 - 19 March, London - Afro-IP reader discount rate inside

They went to great lengths (or in other words, bothered) to rank African-based IP firms last year and included African IP in the 2013 International Patent Forum agenda. This year, we hear that they are doing the latter, again. Going forward, you now know who they are.

What is it?

Managing IP magazine cordially invites you to attend the 4th annual International Patent Forum at The Waldorf Hilton Hotel, London, on 18th and 19th March 2014

Who will be attending?

At this two-day event, you will meet over 250 leading patent lawyers from over 25 countries, including world leaders in corporations, public health, sciences and international leading IP experts who will discuss and impart valuable knowledge. Past delegates' list can be found here, while confirmed speakers can be seen in this draft agenda (for an up-to-date web version, see here).

What is the registration fee for an Afro-IP reader?

This event is FREE for in-house IP and patent counsels, R&D professionals and academics to attend. To register, click here. Advisers, consultants, private practitioners, service providers can get a discount - details of which can be found here.  

Is the agenda relevant to an African-based IP practitioner?

Generally, yes. Day 2 is obviously relevant because that is where Africa is featured. While looking at the draft agenda, one might as well ignore the mention of "USA", "Europe" and so on simply because, it is only a matter of time before African countries experience the same issues. Also, you can substitute, in most parts, the word "Patent" for "IP" considering that some of the discussions may apply to other IP rights. 

Commentary

The International Patent Forum is a proven platform to acquire basic practical patent/IP knowledge at a global level as well as network with potential sources of IP work from outside the continent. The inclusion of an African agenda, for the second year running, can further help remind global IP event organisers that the continent has come of age to be easily put aside - perhaps, due to publicity via blogs such as this one and others including IP-Watch and IPKat.

This Leo can remember the networking reception at IPKat's 10th birthday where someone asked him: "I hear a lot about the economic growth in Africa; what is really going on? Are there business opportunities for IP firms? Well, readers can be rest assured that this Leo's general response was in the affirmative. It would be worthwhile for the 'leading' African-based IP firms to participate, in one way or another, at events such as this one.

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