Thursday 10 December 2015

Afro Ng'ombe

Singapore Treaty to be in Force for OAPI by Mid-February

Trademarks and Valentines, a natural pairing.
With all the attention Africa’s been getting globally and our pride’s attention drawn to happenings hitting even close to our hearts, some details have slipped through the grass.  But never fear, like all good lions, we manage a pounce in the end.  This time, this straggling little leo has rounded back on a WIPO announcement from a few weeks ago: OAPI has joined the Singapore Treaty on the Law of Trademarks.  Full WIPO press announcement here.

Administrative Harmonization

The Singapore Treaty on the Law of Trademarks, known as STLT in the WIPO community, seeks to harmonize the administration of trademarks.  It covers everything from registration to license recordation.  It does this by setting limitations on the types of processes and information that can be required by a trademark office.  For example: trademark offices cannot require notarization of application signatures (Article 8(3)(b)); there are 16 pieces of information that trademark offices may require be included in an application (Article 3(1)(a)); and applicants must use the Nice classification system (Article 9).

But License Redecoration Remains

Interestingly, although the purpose of STLT is to harmonize administrative procedures, parties are able to opt out of provisions under certain circumstances (in Article 29), and OAPI has done just that.  Articles 6 and 19(2) will not apply to OAPI.  Article 19(2) of STLT prohibits parties from requiring the recordation of licenses for enforcement.  However, Article 27 of the Bangui Agreement, which governs OAPI, requires the recordation of a trademark license with the OAPI Special Register of Marks in order for the license to be enforceable against third parties.  The pre-existing Bangui Agreement rule stands.
Article 6 of STLT says “Where goods and/or services belonging to several classes of the Nice Classification have been included in one and the same application, such an application shall result in one and the same registration.”  Little Leo has to admit, she’s not really sure what it means to opt out of this.  [And based on the way WIPO presented it in the press release, neither are they.]  Perhaps it means applications listing goods or services in multiple Nice classes will result in multiple registrations.  Conjectures, explanations from wiser readers and wild guesses are welcome.

A Growing Party

The addition of OAPI brings the official number of STLT members to 41.  That number is a little misleading since OAPI itself includes 17 countries.  Seven OAPI members are signatories to STLT, dating back to 2006 and 2007, but only Mali (2009) and Benin (2012) ratified the treaty as individual countries.  The treaty comes into effect for OAPI, and Benin and Mali individually, all on the same day: February 13, 2016.  Just in time for Valentine’s Day.  That will bring the number of countries participating in the STLT harmonization to 54*.  The full list is available from WIPO here.

*If the math doesn’t seem to work out, it’s because there are other multi-state members whose countries are also individually members.

Image information: “Little Debbie Valentine Snack Cakes, 2/2015, by Mike Mozart of TheToyChannel and JeepersMedia on YouTube” CC-BY 2.0 Mike Mozart, available at https://www.flickr.com/photos/jeepersmedia/15908525213
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Wednesday 9 December 2015

AfroTwiga

Will we ever know who invented MPesa?

Quite frequently, someone will come to our IP Clinic claiming to have invented MPesa, the first widespread mobile money transfer system. Some even bring evidence supporting their claim. We've heard quite a number of stories - it was invented by a student at the University of Nairobi, or by a student in Nigeria, or by this or that entrepreneur, or by Vodafone in Germany (and merely tested in Kenya due to lack of regulations), etc.  Some are upset that their IP was 'stolen' but others merely want recognition for their 'invention.'

The reality, if the Wikipedia page can be trusted, seems quite a bit more complicated - many people and entities appear to be involved.

While searching for something else, though, this blogger came across this US patent application, which describes an "electronic purse" that seems suspiciously a lot like MPesa. The priority date is 2003. It's not exactly the same, but clearly people were thinking about this technology over a decade ago and at least three years before MPesa was launched.

Many people have said that MPesa was/is an example that supports software patents - had it been patented, the theory goes, it would be very easy to identify the true inventor and that person/entity would be making tons of money. This blogger believes the opposite is more accurate - had it been patented, there wouldn't be competitor services in Kenya (there are currently several), quality and service would suffer, and prices would be higher. Considering that a major reason for MPesa was to help the "unbanked", such a result would be quite unfortunate.
Lion share (source here)

Some would argue, however (and this blogger would probably agree), that even without patent protection, MPesa's lion-share of the industry effectively results in the negative outcomes mentioned above. 
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Friday 4 December 2015

Afro Leo

Editorial - Starbucks from start to finish

Starbucks from start to finish - Darren Olivier

Last week I had the real privilege of being able to join the tribute to Jeremy Phillips on the occasion of his retirement celebrated at  JIPLP's 10th anniversary conference held in London. The #JIPLP10 on twitter documents some of the reaction to it and indeed includes an entire webcast of it.

I first emailed Jeremy in December 2007 to request his assistance in starting this blog. He answered immediately (as he has ever since) inviting me to have a chat with him at Starbucks on the ground floor of the Olswang offices in Holborn where we discussed his first post, why the IP world needed a blog on Africa (with no interest there would be no readers) and how this might all work.

It is one of the best hours I have spent with anyone. I sat with my coffee (probably brewed from African beans) exchanging ideas with someone who was as grounded as those beans yet percolating with ideas and insights on Africa that clearly indicated his interest and why it was not only a good idea but necessary for this type of repository of information on IP covering the continent. It was and remains necessary for Africa to make IP more accessible, debated and understood both to its people and to those interested in working with the continent.

My own interest in the blog was in part motivated by that very problem; I was returning to Africa after a decade in London and had nowhere to research or understand developments in IP. Law firm reports (if they existed) were not up to date nor designed for that purpose. Universities still marginalised IP. Journals could only be accessed via subscription and legal decisions on IP published sporadically. Jeremy's thoughts were later encapsulated in a very popular editorial for JIPLP here and documented by Managing Intellectual Property here, who have, incidentally, also supported us ever since.

Jeremy's support created instant credibility and interest and his guidance has been invaluable. For that everyone with an interest in African IP, including external investors, have much to thank him for. He has helped, in a considerable way, enable the discussion on African IP to reach a much larger and more influential audience and not just through this blog but through IPKat and JIPLP, in particular.

And this blog has made even a small difference. For example, Kingsley's epic posts on the online presence of African IP registries have helped spur on those Registries to improve their interface with consumers. Funders of African IP (whether it be actual funds or support) have been acknowledged creating more access to support and judges and policy makers have expressed gratitude because the content has assisted them in their decision making.  There is however much that still needs doing; a message that resounded last week too.

My Bed by Tracey Emin
Jeremy's parting speech last week made My Bed an analogy. He used it to illustrate, amongst other things, that your view on IP is highly influenced by your vantage point and who you are. For example, if you were sleeping in it, you may think it perfectly in order but from other viewpoints it's a complete mess. This is no different when applied to African IP relative to others as it is to IP relative to the world. My own point here is that Africans need to be more vocal to express, understand and be understood on African IP issues, and this blog can play a part in helping that process. It does however, need more good content and participation.

In a kind parting gesture, Jeremy invited me to join him and others at Reubens in Baker Street for dinner. It's seldom that you sit in the presence of a judge let alone opposite one that is as influential on IP as Judge Arnold, but there I was. And when this happens you speak about his kids, not the little ones that need nappies but his judgements, especially ones that reference South African cases. We spoke about Starbucks.

Best wishes for your retirement Jeremy.
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