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INTELLECTUAL PROPERTY Africa is Businesses must seek easy. In November last year, a ruling by But protecting IP is never going to be starting to get greater protection the Supreme Court of Appeal in South Africa put the cat among the pigeons from an intellectual property perspective, causing a rethink of how South African IP savvy Intellectual Property Organisation companies – specifically those in the wine industry – protect their trademarks. The ruling, which looked to define the (WIPO), a United Nations special agency established in 1967 with the the Trade Marks Act, involved the case of mandate to promote and protect IP in meaning of ‘similar goods’ in terms of As the continent’s businesses and innovators member countries. two neighbouring Western Cape farmers: become more active – and global role “PAIPO will have a much stronger Zonquasdrift Estates and Zonquasdrif players increasingly seek to enter African and more representative status to Vineyards. Both farms grow and sell markets – the need for proper protection of represent the countries of Africa in grapes for wine. Zonquasdrift Estates had registered other international forums,” explains intellectual property has become critical. Esmé du Plessis, Senior Consultant at the mark ‘Zonquasdrift’ in class 33, which law firm Adams & Adams in Pretoria. includes alcoholic beverages but doesn’t “It is understandable that South Africa, cover wine grapes, which are covered in as a country with a well-established IP class 31. The court found that registering ATENT LITIGATION IN AFRICA, system and as an active role player and the trademark over wine did not offer with the exception of South member of other international IP-related Zonquasdrift Estates protection when P Africa, was almost non-existent organisations over many years, should Zonquasdrif Vineyards started selling wine 10 years ago. But, with six of world’s support the establishment of a stronger grapes under a similar name. fastest-growing economies in sub- and more representative African IP While the names, said the court, were Saharan Africa, intellectual property is on organisation such as PAIPO.” ‘virtually identical’, the goods – namely the rise and we are seeing an associated With African businesses and leaders wine and wine grapes – were not close increase in patent filings. beginning to realise the growth advantage enough to constitute an infringement. In a July article for the international inherent in home-grown African products According to Ilse du Plessis, Director at legal and regulatory news website, and brands, the importance of such ENSafrica in intellectual property (IP), it is Mondaq, Chris Bull of Africa’s largest steps should begin to take root around important to note that “it’s not uncommon law firm, Edward Nathan Sonnenberg, the continent. As Ethiopia found out in for identical marks to be used in relation noted that foreign companies – largely 2005 when it came up against, and lost to different product – like Polo cars and based in Europe, China and the United to, global coffee chain Starbucks over an Polo shirts. But when those goods and States – were driving patent applications attempt to trademark the names of three services become too close then, if you as they increasingly identified Africa coffee-producing regions – Yirgacheffe, have a registration in place, you’ll be able as a key market for their products and Harar and Sidamo – IP muscle when to prevent someone using the same mark services. He noted that pharmaceuticals, taking on influential multinationals is vital. for a similar product.” oil and gas, information technology, Bankole Sodipo, a founding member In this case, however, the ruling came telecommunications, mining and retail of the African Intellectual Property as something of a surprise. Explains were among the most active sectors. Group and a professor of law at Babcock Du Plessis: “The court felt that you sell As a result of this uptick in activity, the University in Nigeria, noted during wine to the general public, while wine issue of IP on the continent is increasingly Union Commission chair Nkosazana a recent IP workshop in Tanzania: grapes are sold to the wine industry, coming under the spotlight and attention Dlamini-Zuma. “(Africans) need to network to nurture our so they found only a slight chance of is turning to the bodies, processes IP-related issues are a key strategic intellectual property. We need to share confusion because of the different buyers and support given to African products, imperative for all developing countries experiences, to evaluate and consider of the products.” services and companies. and particularly those on the African how we can promote our culture, our This ruling does, however, have Recently, the Tunisian News Agency continent. Perhaps for this reason, creative industries, our innovation and our implications beyond the wine industry, reported on the creation of an African South Africa gave strong indications in investments – and ensure that intellectual believes Du Plessis, and can apply to statistics institute and an African February last year that it would support property becomes a tool for African producers of raw products and processed intellectual-property association, to be a Pan-African Intellectual Property Office IP here is increasingly economic emancipation. We need to build products. “Take oils or olive oil,” she says. based in the capital of Tunis. The report (PAIPO), in addition to the country’s in the spotlight capacity for all stakeholders and seek to “The logical conclusion is that if someone followed a meeting between Tunisian existing memberships of the World balance the private rights with the public has registered their mark in respect of Prime Minister Ali Larayedh and African Trade Organisation (WTO) and the World benefits for intellectual property.” olive oil he may not be able to stop the 36 strategicmarketingafrica First quarter 2014 First quarter 2014 strategicmarketingafrica 37