Slow but steady progress in Africa

Of concern is there is still a lack of understanding on the continent of the benefits of IP and how to commercialise it effectively, writes Lynette Dicey

Africa is making progress — albeit this progress is slow — in terms of recognising intellectual property (IP) rights, particularly in recent years.

Locally, IP law encompasses legislation regarding patents, designs, trademarks and copyright protections. It refers to assets which are intangible and susceptible to exploitation by third parties such as company names, logos and original works such as industrial designs, codes, formulas and trade secrets, among others.

Encouragingly, there is a desire to improve IP legislation locally, reports Kelly Thompson, firm chairperson of Adams & Adams.

The same holds true for Africa as a whole, she says: “In the past six or seven years there has been a significant improvement in IP laws in many jurisdictions on the continent, particularly in terms of a willingness to modernise the legislation. Prior to this many African countries still had IP laws rooted in their colonial roots with outdated patent and trademark regulations.”

Of concern is the fact that, with the exception of countries such as Kenya and Nigeria, there is sometimes a reluctance to enforce IP rights as the cost of litigation is balanced against the likelihood of successful legal outcomes.

“However, even though litigation is still not at the levels one would expect, there is a slow but steady improvement, with a growing number of decisions coming out of the courts in some parts of Africa, especially when it comes to protecting well known trademarks,” says Thompson who, in addition to heading up Adams & Adams, is a partner in the firm’s trademark litigation group.

Although the Covid-19 lockdowns of 2020 resulted in a slowdown in patents and trademarks being filed across the continent, with many African registries shutting down completely, the slowdown was not as much as expected.

“The need to protect IP doesn’t go away just because the world is facing a crisis,” says Thompson. “In fact, it becomes even more important, given that it’s often about protecting market share. Some of our clients, such as manufacturers of personal protective equipment and sanitisers, did really well last year.”

An unintended consequence of the pandemic has been an accelerated shift to digital systems. For its part, the Companies and Intellectual Property Commission of South Africa added functionality to its online system and the OAPI Office in Cameroon, which ensures the protection of IP rights in most African Frenchspeaking countries, is in the

process of piloting a new online system which includes e-filing for trademark applications and renewals. The Gauteng High Court has rolled out its Caselines electronic platform more widely and most hearings are now being held virtually.

“Progress is being made and it’s exciting to witness Africa entering the digital age in these respects,” says Thompson.

Maintaining client contact has been challenging during this time, but has also been assisted by technology which, even 10 years ago, was not available. In the IP profession, overseas conferences are a valuable opportunity to maintain contact with current clients, source new work and learn about IP developments in other markets.

“Virtual platforms have replaced all that with some benefits, such as junior lawyers who otherwise would not have travelled to overseas conferences can now join the meetings with ease,” explains Thompson.

When used strategically, IP systems can be a tool for technological innovation and create added value. It is IP law, for example, that provides protection for rooibos, a proudly South African product, through its geographical indication, in the same way that Champagne can only be labelled as such if it originates from the Champagne region in France. Essentially this is an indicator that identifies a particular product as originating from a particular region or locality.

However, in Africa IP is not yet being correctly harnessed. Instead, there is a concerning tendency for it to be seen as an obstacle and a hindrance. “In general, there is still a lack of understanding of the benefits of IP and how to commercialise it effectively although, again, there are encouraging attempts to correct that in many quarters,” says Thompson.

Although there is no lack of innovation taking place on the continent in countries such as Kenya specifically there are only limited patent filings by local inventors elsewhere in Africa, she reveals.

SA is a signatory to a number of international agreements relating to the protection of IP. These include the Patent Cooperation Treaty, the Berne Convention and TRIPs. Locally, the Patents Act regulates the granting of patent applications, the Trade Marks Act protects and regulates trademarks, and the Copyright Act protects original creative works.

Overall responsibility for policy formulation regarding patents, trademarks, designs and copyright resides with the department of trade & industry which provides the framework for the registration of IP rights. The Companies and Intellectual property Commission, on the other hand, is responsible for registering IP rights.

THE NEED TO PROTECT IP DOESN’T GO AWAY JUST BECAUSE THE WORLD IS FACING A CRISIS. IN FACT, IT BECOMES EVEN MORE IMPORTANT