While the revised Bangui Agreement is yet to come into force, pending the ratification by the OAPI member states, OAPI has advised that certain annexes to the revised Agreement will come into force with effect from 14 November 2020. These Annexes are, Annex VI on Geographical indications; Annex VII on Literary and Artistic property, Annex VIII on Protection against unfair competition and Annex X-Plant varieties
This is a note to highlight the main changes that will be brought about by the Annexes to the revised Agreement.
Annex VI – GEOGRAPHICAL INDICATIONS
This Annex contains provisions regarding the protection of Geographical Indications. A number of additions, amendments and removals are being introduced. We have highlighted some of the more pertinent amendments below.
- A notable change is the amendment of the period within which to oppose a registration of a geographical indication. The previous Annex allowed for a period of six months from the date of publication of the registration. The Annex to the revised Agreement only makes allowance for a three month period from the date of publication of the registration.
- The addition of Article 17 to the Annex of the revised Agreement sets out that protection of a geographical indication, once registered, is conferred for an unlimited duration.
- The Annex to the revised Agreement further makes provision for quality control of the products offered for sale or exploited under a registered geographical indication and that the prohibition from using the geographical indication shall be determined by regulations issued by the Ministry responsible in the Member State concerned.
- Finally, the Annex to the revised Agreement repeals Annex VI of the Bangui Agreement Act of February 24, 1999.
Annex VII – LITERARY AND ARTISTIC PROPERTY
This Annex contains provisions regarding copyright protection. The general rule, as expressed in the current and the revised Agreement is that the author of the work that is subject to copyright protection, enjoys the exclusive right to exploit the work in any form and to obtain monetary advantage from the work. However, this right is subject to certain exceptions and limitations, which permit the use; reproduction; performance; translation; adaptation and performance of a work, without the consent of the author or payment of remuneration. The revised Agreement introduces additional and new exceptions and limitations, including, the performance of a work within a family circle without a financial benefit; parody, pastiche or caricature of a copyright protected work; the reproduction and distribution of a literary work to grant access to visually impaired persons and others.
Another notable change is the reduction of the term of copyright protection from 70 years to 50 years (typically calculated from the death of the author, depending on the nature of the work concerned).
Annex VIII – PROTECTION AGAINST UNFAIR COMPETITION
Both the current and the revised Agreements entitle any person who has suffered damages or is liable to suffer damages to institute proceedings before the competent court of any member state, for an injunction and damages.
The revised Agreement goes further to provide guidance to the courts, on the factors that should be considered in determining the damages that have been suffered by or that are owed to the aggrieved party. These factors include, loss of profit suffered by the injured party; profits made by the wrongful party and the moral prejudice suffered by the aggrieved party.
Annex X – PLANT VARIETIES
This Annex contains provisions regarding the protection of Plant Varieties.
- The Annex sets out the provisions relating to joint ownership of a plant variety certificate, specifically that each owner of the certificate would be allowed to exploit the plant variety certificate to their own benefit and grant a non-exclusive license to a third party, on their own, subject to the equitable compensation to the other joint owner. Should it not be possible to reach an amicable agreement on compensation, a competent court order would make the determination.
- The Annex revised the time period within which priority documents and relevant accompanying documents (in the case of a priority application) are required to be submitted, from 4 months to 6 months of the filing of the application.
- Where a person who is not entitled to a plant variety certificate files for an application thereof, a person who is entitled to such a plant variety certificate may approach the Organization to claim ownership of the certificate, within three months as from publication of that application.
- The Annex also sets out specifications allowing the customs department at borders, at the written request of any party, and under certain specifications set out in the Annex, to retain any goods which the party may deem to be infringing. Provision is also made for customs authorities to, ex officio, withold goods when they have presumptive evidence that the goods infringe the rights of a certificate holder.
- The Annex to the revised Agreement X repeals Annex X of the Bangui Agreement Act of 24 February 1999.
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.