Since the start of cross-border trade, various treaties have been entered into to provide protection of a brand holder which is similar to that of the nationals of a foreign nation in respect of their intellectual property. Think TRIPS and the Madrid Protocol, to name but a few.
The African Union’s (AU) Scientific, Technical and Research Commission have introduced a Statute of the Pan African Intellectual Property Organisation (PAIPO) which should be tasked with administering and harmonization of Intellectual Property and its laws in Africa. The AU has made PAIPO available for all members of the AU, which is all countries on the continent and the surrounding islands; however, its workings and implementation are unclear.
PAIPO has received its fair share of criticism across the globe, which raised the following main questions:
- How will PAIPO assist in addressing issues of affordable healthcare in developing countries in the AU?
- What process will have to be followed in order to harmonize the IP laws of the PAIPO members?
- What effect will PAIPO have on existing rights?
- How will the administration of IP rights be managed?
Research into the PAIPO Statute failed to answer these questions to satisfy these concerns of brand holders.
Due to these uncertainties, the implementation of PAIPO could result in the end user, being the consumer of the IP, suffering as the protection of IP in Africa could then be seen as fruitless by brand holders as it is not expected to be a smooth transition if PAIPO realises. Thus, PAIPO, at this juncture, is actually unnecessary and non-sensical if the current existing systems are taken into account which afford the required protection of brand holders in AU countries.
The Madrid Protocol and what should rather be focused on instead of PAIPO
Briefly explained, the Madrid Protocol is an international treaty that allows a brand holder to apply for trade mark registration by filing a single trade mark application which covers all countries which form part of the Madrid Protocol. This is usually referred to as an “international application”. It must be kept in mind that each country will apply their own rules and laws in respect of such an international application.
Rather than trying to implement an unnecessary and additional IP system on the continent for possibly political reasons, the time, efforts and especially the limited funds should be directed to drive the implementation of the Madrid Protocol in the AU countries who are currently not members.
The focus should be on upgrading the registries to allow for the Madrid Protocol’s workings for current members, so that brand registration takes place swiftly, and for non-members to harmonize the laws of the countries who are currently not members of the Madrid Protocol.
Jadon Wolmarans, Associate, KISCH IP