Angola: The Right Dose Of Protection In Angola

Last Updated: 19 September 2018
Article by Vitor Palmela Fidalgo

It is important to state what a "pharmaceutical trademark" is. When I use the term, I do not intend to mean or create a new legal type of trademark. Nor do I refer directly to class 5 of the Nice Classification since it covers more than pharmaceutical products, such as "diapers for babies". I use the term only for academic purposes, to identify trademarks where protection is given to drugs and medications and where the legal approach and solutions may be distinct from those of other products.

Africa is a continent of big opportunities, especially for pharmaceutical companies. According to the latest statistical data, the market for the pharmaceutical industry in Africa will be worth about €60 billion ($75 billion) by 2020. In this sense, a big investment in protecting pharmaceutical trademarks in Africa is predicted, and Angola is not an exception in this matter.

Angola is one of the biggest economies in Africa. The oil crisis had a major impact on the economy but it also created an opportunity to widen the narrow base of the economy to a more diversified one, and the pharma industry is a beneficiary.

As stated by the Angolan minister of health at the end of 2016, one of the objectives of the Angolan government is to develop an Angolan pharmaceutical industry capable of increasing the availability of drugs to the population, thus reducing the number of imports and increasing state revenues.

Despite this being a good opportunity for the pharmaceutical industry, stakeholders must be aware of the difficulties they might face. The Angolan IP landscape has its own specific characteristics and I will point out some specific questions on pharmaceutical trademarks in this country.

It is worth analysing three specific problems that may affect the pharmaceutical industry: (i) the difficulties in enforcing trademark rights; (ii) the struggle against confusion; and (iii) the problem of parallel imports.

As for customs, it may be sufficient to provide an official notice from IAPI stating that the trademark has passed substantive examination and is awaiting a trademark registration certificate. This notice should be sufficient for customs officials to seize counterfeit goods.

The struggle against confusion

As stated by the World Health Organization in 2007, "the existence of confusing drug names is one of the most common causes of medication error and is of concern worldwide". When dealing with pharmaceutical trademarks we should consider two areas of law: trademark law, which intends to safeguard consumers, provide information to them and create efficiency in the market; and pharmaceutical law, which protects public health by ensuring the quality and safety of medicinal products.

The matter of confusing drug names is especially true in Angola, where the literacy rate is still low. The existence of confusion of pharmaceutical trademarks can easily be a cause of medication error. It may be said that the protection of public health lies only on the state but that is not completely true. Aparfrom the social role played by companies nowadays, the damage against trademarks and their selling power that can arise from a medication error due to confusion between pharmaceutical trademarks should not be forgotten.

Considering this, particular attention must be paid upon launching a trademark in the Angolan market. It should be noted that figurative marks may play a special role in this matter. Due to the confusion created by some drug names, it should be easier to register and launch in the market a figurative trademark since it will be much better perceived by consumers.

Another issue should be considered: pharmaceutical names should also be subject to compulsory evaluation by public health agencies.

This is a reality, for example, in Europe, where this evaluation is undertaken by the European MedicinesAgency. For the time being, there is no centralized control for medicines entering the Angolan market.

In this sense, it is advisable that IAPI makes a more accurate assessment, which should consider ensuring that, for example: (i) the relationship between the invented names and existing ones (an invented pharmaceutical name shall not cause confusion with any other invented name); (ii) a pharmaceutical trademark does not mislead consumers about the therapeutic or pharmaceutical connotations or with regard to the composition of the product(iii) a pharmaceutical trademark does not convey a promotional message; and (iv) a pharmaceutical trademark is also not liable to confusion with a common name (also known as international nonproprietary names).

The problem of parallel imports

Parallel imports are usually referred to as goods put on the market abroad by the owner of the trademark (or with its consent), which are subsequently imported into the domestic market without consent of the owner.

The debate over parallel imports focuses on the extent to which a trademark owner should be able to keep control over its own trademark by using its trademark entitlements in a country to restrict the importation of goods into that country after the goods have been put on the market somewhere else by the trademark owner.

In Angola, it is important to know whether trademark rights are "exhausted" with respect to products that have been distributed in the Angolan market. The Angolan trademark rules do not expressly provide the concept of exhaustion of trademark rights, and this can be very problematic for the pharma industry, creating a high degree of legal uncertainty in this matter. In the absence of rules, it should be understood that no parallel imports are allowed.

Conclusions

There are some specific questions that the pharma industry may be facing when entering its trademarksin the Angolan market. A practical and a pragmatic approach by stakeholders is advisable, for example, undertaking investigations to search for counterfeit products on the ground. Working alongside IAPI is also a feasible way to find better solutions to enforce trademark rights.

Finally, considering the lack of expertise and the length of time that elapses until the suits are ruled in Angola, implementing arbitration clauses in licensing.

This article was first published in the World Intellectual Property Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions