Worldwide: ARIPO And The Contribution For The Evolution Of Industrial Property In Africa

Last Updated: 18 February 2019
Article by João Pereira Cabral and Inês Monteiro Alves

The creation of ARIPO and its reasons

The African Regional Intellectual Property Organization (ARIPO) is an inter-governmental organization created by the Lusaka agreement, which was adopted by a diplomatic conference held in Lusaka, Zambia, on December 9, 1976.

As the preamble of this Agreement states, it was signed by Governments that were "aware of the advantages to be derived by them from the effective and continuous exchange of information and the harmonization and co-ordination of their laws, policies and activities in intellectual property matters," and recognized that "the creation of an African regional intellectual property organization for the study and promotion of and co-operation in intellectual property matters in collaboration with the Economic Commission for Africa, the World Intellectual Property Organization and other appropriate organizations would best serve this purpose (...)".

Currently there are 19 member States (Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe) and membership is open to the States members of the United Nations Economic Commission for Africa or the African Union.

Objectives of ARIPO

The objectives of ARIPO are well defined on Article III of Lusaka agreement. They are:

"(a) to promote the harmonization and development of the intellectual property laws, and matters related thereto, appropriate to the needs of its members and of the region as a whole;

(b) to foster the establishment of a close relationship between its members in matters relating to intellectual property;

(c) to establish such common services or organs as may be necessary or desirable for the co-ordination, harmonization and development of the intellectual property activities affecting its members;

(d) to establish schemes for the training of staff in the administration of intellectual property laws;

(e) to organize conferences, seminars and other meetings on intellectual property matters;

(f) to promote the exchange of ideas and experience, research and studies relating to intellectual property matters;

(g) to promote and evolve a common view and approach of its members on intellectual property matters;

(h) to assist its members, as appropriate, in the acquisition and development of technology relating to intellectual property matters;

(i) to promote, in its members, the development of copyright and related rights and ensure that copyright and related rights contribute to the economic, social and cultural development of members and of the region as a whole; and

(j) to do all such other things as may be necessary or desirable for the achievement of these objectives. It is clear from the above objectives that the common thread running through them is the idea of cooperation. The concept of cooperation plays an important role in the functions of the Organization."

The organization

Article II of Lusaka agreement lists the organs that form : "The Council of Ministers (Article VIbis) is composed by Ministers of member States and is the supreme body of the Organization, being responsible for, amongst other tasks, giving "(...) directions to the Administrative Council or the Secretariat concerning the orientation of the Organization or the development of its activities;" (Article VIbis, 3, e)).

Article VII provides that the Administrative Council shall consist of the Heads of Offices dealing with the administration of intellectual property in members of the Organization. To fulfill its tasks of formulating and directing the execution of policy with respect to the activities of the Organization, the Administrative Council has subsidiary Committees for matter such as finance, audit, staff affairs and technical.

The provisions of Article VIII determine the composition and functions of the Secretariat. The Director General of the Secretariat shall be appointed for a fixed term of four years and is the principal executive officer of the Organization. One of the functions of the Director General is to "examine ways in which the objectives of the Organization may be achieved and may act in relation to any particular matter which appears to merit examination either on its own initiative or upon the request of a member of the Organization (...)."

The protocols

In the pursuit of the objectives laid down in Article III of Lusaka agreement ARIPO adopted four protocols: Banjul Protocol on Marks Within the Framework of the African Regional Industrial Property Organization (ARIPO); Harare Protocol on Patents and Industrial Designs Within the Framework of the African Regional Industrial Property Organization (ARIPO); Arusha Protocol For The Protection Of New Varieties Of Plants within the Framework of the African Regional Intellectual Property Organization (ARIPO) and the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the Framework of the African Regional Intellectual Property Organization (ARIPO).

The Harare Protocol was adopted in the capital of Zimbabwe in December 1982 by the Administrative Council of ARIPO and entered into force in 1984. This Protocol provides that an applicant for a patent or a design registration can designate any one of the Harare Protocol Contracting States.

For trademarks there is the Banjul Protocol, adopted in 1993. As the Harare Protocol provides for patents and design registrations the Banjul Protocol allows the applicant for a trademark registration to designate any one of the Banjul Protocol Contracting States.

Varieties of Plants are also object of a Protocol: the Arusha Protocol for the Protection of New Varieties of Plants within the Framework of the African Regional Intellectual Property Organization (ARIPO), adopted in Tanzania in July 6, 2015.

The fourth Protocol is the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, adopted in a diplomatic conference held on August 9, 2010, in that city of Namibia.

The system of protection of industrial property rights through ARIPO

For the purposes of this article, we shall focus our attention on the Harare and the Banjul Protocols, referring to the protection of patents, designs and trademarks, respectively.

When analysing on how the system for the protection of patents, designs and trademarks in ARIPO operates, it is common to compare the same with the Madrid system. For instance, the ARIPO organization functions similarly to a receiving office, being then the applications filed through the regional system notified to the national offices for these to decide if the application could or not be effective at that state. In fact, each member state will have the autonomy to decide whether an industrial property right should or not be valid in its territory.

That being said, one of the requirements for filing an application in ARIPO is to designate the states in which the protection is intended. In the circumstance the applicant fails to designate the states in the application, ARIPO (or any receiving national office), shall not consider that the protection was to be intended in all the member states of either the Harare of Banjul Protocols. On the contrary, the applicant will be notified in order to complete the formalities and proceed to indicate in which countries the application should be valid.

With regards to trademarks, after the application is filed, either directly at ARIPO or at a national office (that then transmits the application to the regional organization) a formal examination will then be conducted by the Organization, after which the national offices have 12 months to proceed with the substantial examination and inform ARIPO if the trademark could or not be valid in its territory. The examination from the national offices is then followed by the publication of the trademark application in the Journal of ARIPO, along with a notice in the national Journal of each designated member state, for the filing of oppositions from third parties who consider themselves adversely affected by the registration of the trademark. After the opposition period is over, the trademark follows to registration.

The applicant shall be able to choose the protection between the following signatory members for the protection of trademarks:

  • Botswana
  • Lesotho
  • Liberia
  • Malawi
  • São Tomé and Príncipe
  • Swaziland
  • Tanzania (Tanganyika)
  • Uganda
  • Zimbabwe

As for patents, after the application is filed, either directly at ARIPO or at a national office (that then is required to transmit the application to the regional organization) a formal examination will then be conducted by the Organization. ARIPO will then accept the application and notifies the designated states, after which the applicant is required to request for the substantive examination, then conducted by ARIPO. Six months after the notification to the states of the formal examination, the states may make a written communication, that the patent shall have no effect in its territory, either because the invention is not patentable in accordance with the provisions of the Harare Protocol, or because of the nature of the invention, the patent cannot be registered or granted or has no effect under the national law of that State.

The applicant will be able to designate in the application the following member states for the protection of patents: Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Sudan, Swaziland, Tanzania (Tanganyika), Uganda, Zambia and Zimbabwe.

The ARIPO system differs from the system of OAPI ("Organisation Africaine de la Propriété Intellectuelle"), created in 1977 by the Bangui Agreement which comprises 17 member states (mostly French-speaking countries). This African regional system has one central office (currently located in Yaoundé, Cameroon) responsible for the granting of industrial property rights that shall be automatically effective in all its member states. The national states from OAPI do not have national offices nor do have national laws for ruling the matters and for this reason, the states have no autonomy for unilaterally grant or refuse an industrial property right in its own territory.

ARIPO and other international agreements

ARIPO is a member of a bundle of international treaties, in which the Paris Convention and the Patent Cooperation Treaty (PCT) are included. The relation between ARIPO and the Paris Convention allows an applicant to seek the protection of industrial property rights through this African regional system claiming priority of the first application filed. On the other hand, by way of being also a signatory member of the PCT, all of ARIPO member states may be designated through the national phase of a PCT International application.

Apart from that and on an important note, on October 1st 2018, ARIPO, OAPI and the World Intellectual Property Organization (WIPO) have signed a Memorandum of Understanding (MoU), establishing a tripartite cooperation framework between the Organizations to undertake and provide joint technical assistance programs to the Member States within the scope of their respective cooperation activities and mandates. Article 3 of the MoU determines that the Organizations "(...) shall enhance cooperation in order to better coordinate and deliver joint programs/projects, which may include, but not limited to, the following:

  1. The development of joint activities to address issues of mutual relevance, including coordinating and conducting joint studies on regional and international developments on the IP landscape, organizing joint seminars and workshops to build capacity of stakeholders and address topical IP rights (IPRs) issues, including on management and administration of IPRs;
  2. Collaboration in providing technical assistance for development of national IP policies and strategies; skills development for small and medium sized enterprises; access to and utilization of technological and scientific information for innovation; including institutional capacity building for the IP Offices of Member States;
  3. The joint programs of work shall specify the respective responsibilities and financial obligations of the Organizations and specify any other sources of funds, as well as staffing responsibilities."

ARIPO's Digital revolution

ARIPO has recently launched a free online database - ARIPO Regional IP Database -, in which it is possible to confirm regional and national IP assets from its member states. The announcement of the launching of the database, a project that began in 2014, was held in Harare, Zimbabwe.

It is ARIPO's intention to enhance the efficiency of business processing and other administrative work at ARIPO and its member states, to facilitate the accessibility and use of IP information in the region, as well as to strengthen the IT's institutional capacity in its member states.

For this reason, any stakeholder has now the possibility to freely access to information which was extremely difficult to obtain up until now and not often free of charge, as the interested parties were required to request for official searches at the national offices.

In the words of the ARIPO's Director General, Mr. Fernando dos Santos, "The Regional IP Database is designed to serve multiple purposes, including online provision of published IP data, encouragement of regional trade, IP scientific research, IP rights protection and enforcement in the ARIPO region, as well as sustainable development of IP."

Advantages of ARIPO

The advantages of filing through ARIPO on the contrary of opting for the national route are easy to enumerate. We shall focus our attention on a few.

On one hand, ARIPO is a centralized and highly specialized Intellectual Property office, in which the applicant has the possibility of, by way of filing only one application, obtaining protection in several territories. ARIPO is responsible for conducting a formal examination, which situation relives immensely some backlog of national offices from the member states. Despite the centralization of some administrative work in ARIPO, certain is that the member states still have the autonomy of deciding whether a trademark, a patent or a design will be effective in its own territory. This situation differs from other regional agreements in Africa, namely OAPI, in which the states are exempt from any autonomy in what refers the decision of granting or refusal of an industrial property right in its territory.

Moreover, as for patents, stakeholders have the certainty to have specialized staff analysing the patents, which should be responsible to grant the right in the designated states, on the contrary to occurs in some of the member states of ARIPO, which sometimes do not have the necessary means and support to analyse such rights.

Finally, filing through ARIPO may be extremely economic advantageous, on the opposite of filing directly on the national states. In situations where the applicant seeks protection in more than one country of ARIPO, it is indeed certain that opting for ARIPO will be particularly profitable.

The future of ARIPO

Looking over the creation of ARIPO in 1976 until today, it is more than certain to sustain that a lot of has been achieved by the organization. From our perspective, considering the evolution of the same and that the membership is open to the States members of the United Nations Economic Commission for Africa or the African Union, it is not a surprise that we will be facing the integration of more member states in ARIPO, leading to the development of intellectual property in Africa, by way of permitting the progress of innovation and the economy of a rising Continent such as the African.

The fact that ARIPO seeks constantly to be in the vanguard of the protection of intellectual property, constantly accessing to fundamental international agreements and being an active participant of new treaties, conferences and constantly providing training seminars on the matter, it is not difficult to say that ARIPO is currently the most important Organization in Africa, in what refers the protection of Intellectual Property.

This article was originally published in Managing Intellectual Property Magazine

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
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please 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