Enforcement of Intellectual Property Laws in Cameroon

The simple way to explain intellectual property is to understand that all great expressions and products have an origin. A work of music, art, writing, film, or computer software belongs to its creators. Your creative expressions and inventions have a lot of value and must be protected however; your ideas are not considered intellectual property. Anyone who tries to copy or "borrow" your work without permission is profiting from your hard work – your intellectual property – without any credit to you.

Intellectual property is divided into two groupings: Industrial property (patents, trademarks, industrial designs, and geographic indications of source) and Copyright (literary and artistic works) / Rights related to copyright (performing artists, producers, and broadcasters).

Intellectual property rights also have a large impact on international trade. Those belonging to big brand pharmaceutical companies have stalled countries from providing generic antiretroviral drugs to treat people with HIV/AIDS, due to long negotiations between the pharmaceutical companies and the generic manufacturers.

Due to the emergence of information and communication technologies, namely the Internet, defining the boundaries of intellectual property has become more challenging. Technology has advanced to a state where previous copyright codes and laws no longer fit. Some people find that copyright, as in “all rights reserved” is restrictive for our digital age of file sharing and blog publishing. A Creative Commons license allows for more flexibility for the creator, author or artist to attribute parameters on sharing their work.

Many people differ on the definition of piracy when it comes to files for download on the Internet. While some see it as an obvious infringement of copyright law, others believe ownership is more complex. The process of making files available to other users over the Internet for downloading purposes is called peer-to-peer (P2P) file sharing.

Students and writers must take care when substantiating their own writing with information and references from other texts. While the Web provides easy access to articles, essays and other texts, every time a phrase, thought or paragraph is borrowed, it is imperative to credit the original author by properly citing sources. Failure to do so or intentional plagiarism may result in severe penalties such as suspension or expulsion from school to major legal fines and penalties. (http://issues.tigweb.org/creativecommons)

Loss of rights on a trade-mark due to Negligence

In Industrial Property Law, for a brand owner to be able to claim ownership on it’s mark, it must be validly registered, and when registered it is valid only for ten years from the filing date of the application for registration, however the ownership of a mark may be preserved indefinitely through successive renewals of the registration, which may be effected after every ten years.

The Bangui Accord which is the main text governing Industrial Property Law in the African Intellectual Property Organization region (“Organisation Africaine de la Propriété Intellectuelle”: O.A.P.I.) in its Annex 3 Article 2, states that ‘no person may claim exclusive ownership of a mark by performing the acts specified in the provisions of this Annex unless he has filed it for registration’

When the trademark is validly registered, the owner has exclusive rights over this mark, and in a situation where his rights over his mark are infringed, he can bring up an action which shall be admissible.

But if after a trade mark has been validly registered by its owner for a particular region, yet this same trade mark is validly registered by a person who at the time of filing did not know another person had a prior right to use the said mark and if the latter does not bring up an action within three years, his mark shall have to co-exist with that which is newly registered, as at this point there is a presumption of foreclosure by tolerance. This takes us to Article 46 (3) of Annex 3 of the Bangui Accord which states ‘any action for infringement of a subsequently registered mark whose use has been tolerated for three years shall be inadmissible except where it has been filed for registration in bad faith. However, the inadmissibility of the action shall be confined to those goods and services for which the use was tolerated” .this section of the Law establishes the principle of foreclosure by tolerance.

Foreclosure is defined here as “the forfeiture of a right or to be explicit the loss of a right after the expiry date to bring up an action”.

Tolerance here could be defined as “the presumption to accept the co-existence   and usage of a similar trade mark for about three years without bringing up an action”.

From these definitions we can conclude that if the owner of a trade mark willingly accepts the existence of a newly registered and used mark which is same as his, and if within 3years, he does not bring up an action then he is presumed to have accepted the existed of this trademark and if he brings up an action, it shall not be admissible.

But there are situations whereby after 3years   of co-existence you can bring up an action and is shall be admissible if your trademark has been infringed;

 These are;

Where the original owner was not aware of the existence of the newly used trade-mark,

Where the second registration was done in bad faith,

Where registration was done for the same class of goods and services, and the class of goods and services were not enumerated during filing,

Under these situations the original owner may bring up an action which may be admissible.

This principle of foreclosure by tolerance poses serious problems especially to multi-national companies that to a larger extent depend on their   brand name for survival.

Some of these problems are;

Most of these companies   do not have offices in the O.A.P.I.  region which makes it difficult for them to actually know when another person is making use of their trademarks.

Usually these companies after they’ve registered their trade mark and starts making use of this mark in the market they either move away, the products are handled by less qualified individuals who may not be aware of competitors.

Also these companies do not know the risk involved in registering a trade mark   without follow-up,

Again some of these companies are not well sensitized on the value   of a trade mark, how u can maintain and lose it, how you can bring up an action within the possible datelines;

Some suggested solutions could be taken into consideration

For trademark owner or multi-national companies, they should set up offices within the O.A.P.I.  region to manage their administrative affairs.

Also trade mark owners or multi-nationals should see it as an obligation to use qualifies Intellectual Property agents to manage their affairs within a given territory.

Also trade mark owners should carry out a search at the Intellectual Property organization office found in Yaoundé Cameroon twice a year to make sure their rights have not been infringed.

 Consequences.

Loss of trade-mark.

Fall in economy.

Reduce employment

Recommendations

Qualified I.P. agents and specialist

African Intellectual Property Organization

Enhancing Intellectual Property Rights in Cameroon

Challenges and the way forward

By Joe Eyong Assoua,

The World Intellectual Property Organization (WIPO) defines intellectual property as the creations of the mind: inventions, literary and artistic works, and symbols, names, and images used in commerce. Intellectual property is divided into two categories: Industrial Property which includes patents for invention, trademarks, industrial designs, and geographical indications. Copyright which includes literary works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms, and those of broadcasters in their radio and television programs.

Intellectual property rights are like any other property rights-they allow the creator, or owner, of a patent, trademark, or copyright to benefit from his or her own work or investment. These rights are outlined in article 27 of the Universal Declaration of Human Rights, which sets forth the right to benefit from the protection of moral and material interests resulting from authorship of any scientific, literary, or artistic production.
The TRIPS Agreement on Intellectual Property Rights
The Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement covers five broad areas:
How the basic principles of the trading system and other international intellectual property agreements should be applied;
How to set minimum standards for the protection of IP;
How to set minimum standards for the enforcement of those rights;
How disputes on IP between members of the WTO should be settled, and
Special transitional arrangements during the period when the new system is under implementation De Vylder (2007)
TRIPS also make provisions for the settlement of disputes between WTO member countries regarding their TRIPS obligations through the WTO binding dispute settlement procedures.
WIPO and Intellectual Property Rights Protection
WIPO is an intergovernmental organization dedicated to helping to ensure that the rights of creators and owners of intellectual property are protected worldwide and that investors and authors are thus recognized and rewarded. WIPO exists as a forum for its Member states to create and harmonize rules and practices to protect intellectual property rights. Developing countries are building up their patent, trademark, and copyright laws and systems; WIPOs role is to help these new systems evolve through treaty negotiation, legal and technical assistance, and training in various forms, in the area of enforcement of intellectual property rights. WIPO also provides global registration systems for patents, trademarks, and industrial designs and also works with member states to demystify intellectual property from the grass-roots level through the business sector to policy makers to ensure that its benefits are well known, properly understood. (WIPO hand book).
Intellectual Property Protection in Cameroon
The African Intellectual Property Organization (Organisation africaine de la propriete intellectuelle-OAPI) was established by the Bangui Convention of 2 March 1977. It is the Law regulating intellectual property practice in Cameroon. The following countries are members of OAPI: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal and Togo.
The Organization comprises three institutions:
An Administrative Council which defines OAPI’s policy and ensures the proper implementation of its law;
A General Management which executes the decisions of the Administrative Council; and
A Higher Committee of Appeal which examines appeals against refusals to register intellectual property rights. (Martor, Pilkinton, Sellers and Thouvenot 2002)
OAPI’s overall objective is to be closely involved in the technological development of its member States. In order to achieve this goal, OAPI seeks to:
Ensure the protection and the publication of intellectual property rights by a common registration for every member States; as a result, the filing of an application for registration within one of the OAPI member States or with OAPI itself is deemed to be a national filing in each member State and produces rights in each member State.
Make the legal framework attractive to private investment by creating conditions that are favorable to the effective application of the principles of intellectual property; and encourage creativity and the transfer of technology (Martor, Pilkinton, Sellers and Thouvenot 2002)
OAPI has drawn up legislation in ten fields of intellectual property, including patents, trademarks or trade names and industrial drawings or models, geographical indications and appellations of origin, literary and artistic property, protection against unfair competition, topographies of integrated circuits, and protection of plant varieties. The law also governs searches of anteriority, searches of identity, renewals of rights and extension of coverage to and from new adherent to the organization. The original Bangui Convention of 1977 was revised in February 1999, and the revised version entered into force in February 2002. This revision was meant to align OAPIs legislation in conformity with international convention notably the accord on ADPIC. As a result, certain procedures which were rather cumbersome under the original Convention have been simplified. In particular the registration of license agreements, which originally required prior submission of the agreement to the national authorities for review, is now exempt from this requirement (Agreement of 24 February 1999 revising the Bangui Convention of 2 March 1977 on the creation of an African Intellectual Property Organization)
Emperics
Enhancing Intellectual Property Rights in Cameroon and Challenges Faced
There are several compelling reasons why we should promote and protect intellectual property. First, the progress and well-being of humanity rests on its capacity for new creations in the areas of technology and culture. Second, the legal protection of these new creations encourages the expenditure of additional resources, which leads to further innovation. Third, the promotion and protection of IP spurs economic growth, creates new jobs and industries, and enhances the quality of life. (Excerpts from the WIPO IP hand book).
An efficient and equitable IP system can help us realize IP’s potential as a powerful tool for economic development and socio-cultural welfare. The IP system helps strike a balance between the interests of the innovator and the public interest, providing an environment in which innovation, invention and creativity can flourish. IPRs should therefore be protected to encourage and reward creative work, for technological innovation, to ensure fair competition practices, for consumer protection against counterfeits and the transfer of technology which is vital for industry growth. The benefits accruing form the protection of IPRs in Cameroon trickles down from the top echelon to the lower echelon of the social ladder. This makes the economy better off and oils the wheels of development and human endeavors.
Some of the challenges encountered in intellectual property protection in Cameroon include:
1.Customs Tradeoffs and border control
2.Corruption and lack of transparency
3.Inadequacy of IP laws and weak judiciary
4.Lack of capacity building in skills, human resource, and funding
5.Poor coordination, co-operation amongst institutions and stakeholders
6.Weak institutions that is unable to enforce IP laws.
7.Lack of strategic leadership, poor strategic planning, thinking and lack of good governance at the level of institutions.
8.Awareness at the grassroots level and the business community
Moving Forward
Cameroon like many other African countries has a good framework of laws and regional initiatives to protect IP rights, but still lack capacity which is key in making them more effective. In all of the OAPI member countries, there is a considerable shortage of capacity, at several levels of administration and enforcement, which to a greater extent undermines the commendable spirit and purpose of the organization. To attract investments in new products and technology in Cameroon will require tough IP laws, strong legal institutions and a strong will on the part of the government to implement and reinforce IP laws. Intellectual property is not an end in itself, but a means to an end, and that end is development. IP can be seen as a tool to economic development and economic welfare.
There is the need for capacity building and training in intellectual property rights. Attention should be given to both the human and financial capacity.
Creation of a customs unit that is responsible for the fight against counterfeiting and piracy to strengthen the enforcement of IP laws and effective border control by customs officials.
The IP laws are weak and inadequate. Our law makers still need to take more steps to reform our IP legal landscape and strengthen judicial enforcement of IP laws through provisional measures, damages, ancillary orders, and evidentiary rules.
 Co-ordination and co-operation amongst the various actors and players at the national level in ensuring the respect of intellectual property laws is vital. The fight against piracy and counterfeiting would have greater chances of success in Cameroon if it is a co-ordinated one, involving all relevant stakeholders, such as relevant ministries and agencies such as intellectual property offices, customs, police and judiciary.
Public awareness and co-operation at the grassroots. The fight against piracy and counterfeiting has to involve the public, since it is its purchasing power which fuels these practices. National anti-piracy and anti-counterfeiting campaigns could be used to indicate the link between IP, crime, health safety, job losses and economic welfare.
Right to information is a valuable tool in the fight against piracy and counterfeiting in Cameroon. This will enable right holders to identify the key persons involved in infringing activities and the chain of distribution.
Right holder co-operation and collaboration. It is in the best interest of right holders to co-operate since they have the largest immediate benefits resulting from protection of IP rights. They should assist in enforcement efforts by providing relevant information to help identify infringing products and co-operate in training and awareness campaigns.
Joe Eyong Assoua is a Researcher at the Centre for Independent Development Research (CIDR), Cameroon. www.cidrcam.org

The IP Dove: Intellectual property laws in Cameroon

The IP Dove: Intellectual property laws in Cameroon: "Intellectual property laws in Cameroon may cover such areas as domain names, traditional knowledge, transfer of technology, patents/copyri..."

Intellectual property laws in Cameroon

Intellectual property laws in Cameroon may cover such areas as domain names, traditional knowledge, transfer of technology, patents/copyrights, etc.  Cameroon is also party to several international intellectual property agreements.
The following is a list of some of the intellectual property laws in Cameroon in the order of the most recent:

• Copyright, Decree, 01/11/2001, No. 2001/956 - Decree No. 2001/956/PM of November 1, 2001 laying down the mode for the implementation of the Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights
• Copyright, Law, 19/12/2000, No. 2000/011 - Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights
• Genetic Resources (No. 96/12, Framework Law on Environmental Management), Law, 1996 - Law No. 96/12 of August 5, 1996, on the framework law on the environmental management
• Other (Forestry Wildlife & Fisheries), Law, 20/01/1994, No. 94/01 - Law No. 94/01 of 20 January 1994 on Forestry, Wildlife and Fisheries.

Source: World Intellectual Property Organization (WIPO)

Earlier this month the Australian government released draft law that promises to be a landmark in global fight against tobacco. If passed, from January 2012 cigarettes and hand-rolling tobacco will have to be sold in plain, unappealing olive-brown packs plastered with large, graphic health warnings. The only thing distinguishing one brand from another will be the name written in a standard font on the top, bottom and front of the pack, below the health warning. This is a world first.
The legislation also proposes that cigarettes themselves should be completely plain. That means no branding, no coloured or flavoured papers, no gold-banded filters and no different gauges like slimline and mini cigarettes.

IP in Africa, what issues