The protection of trademarks and democracy are intrinsically linked, and the reasons for this interconnectedness are diverse but easily discernible. Aspects such as freedom of expression, fair competition, and consumer protection, which favor innovation, are predominantly found within democratic systems.
That said, it is important to acknowledge that authoritarian regimes also protect intellectual property rights (IP), including trademarks.
If on one hand, trademark rights prosper in democracy because only a democratic state offers secure and effective means to combat violations of these rights, while also encouraging the development of innovation.
On the other hand, there are numerous examples of authoritarian states, particularly in the African continent, that effectively protect trademarks, albeit with restrictions and sometimes a lack of efficiency and dynamism. In this regard, it is noteworthy to mention that inefficiency and lack of dynamism can, to a certain extent, be attributed to the fact that these countries are in a developmental stage and may not always have effective means of action.
These two premisses pose no significant challenges. Yet, the example of Eritrea seems to differ, presenting itself as a case with its own particularities.
Trademark registration: a protection above the political system
According to the Democracy Index 20221 , issued by the Economist Intelligence Unit (EIU), there are currently 72 full and flawed democracies, 35 hybrid regimes (regimes with both democratic and autocratic traits, which can simultaneously engage in political repression and hold regular elections), and 59 authoritarian regimes, totaling 167 countries in the world.
Additionally, the Global Innovation Index 20222 , issued by WIPO, reveals that the most innovative countries are predominantly democratic, which confirms our first premise that IP rights thrive in democracy. This shall not surprise us given the reasons mentioned earlier.
To demonstrate the accuracy of our second premise, broader demonstrations are necessary, although the statement that innovators can protect their rights in virtually all countries worldwide does not seem unfounded. For this purpose, we will consider countries in the African continent that are classified as authoritarian according to the Democracy Index 2022.
As per this Index, only Mauritius can be classified as a full democracy in Sub-Saharan Africa, six countries are indicated as flawed democracies, 14 as hybrid regimes, and 23 countries as authoritarian regimes.
Among the latter, we include Niger, Rwanda, and Zimbabwe. Niger, which is part of the African Intellectual Property Organization (OAPI), Rwanda, and Zimbabwe, where the African Regional Intellectual Property Organization or ARIPO is headquartered, have an effective and undisputable trademark registration system, although enforcing these rights may sometimes present some challenges.
Furthermore, fragile and authoritarian countries like South Sudan, Somalia, the Democratic Republic of the Congo, and Libya, among others, have also established systems for trademark protection.
The example of South Sudan serves as a perfect illustration of the significance of IP for a country. Indeed, the South Sudanese government has established a system where trademark holders "reserve" their trademark registration requests with the Ministry of Justice. Once the Intellectual Property Bill 2015, currently awaiting approval by the Parliament, is enacted, those with reserved trademarks will be granted priority rights. Although the system was put on hold for some time, at the time of writing this article, trademark reservation is again possible.
In Somalia, trademark protection was not possible for several years due to civil war. However, the Trademark Office has resumed its functions, even though the country's situation is not yet fully pacified.
The Democratic Republic of the Congo, despite its instability due to decades of internal armed conflicts, maintains its trademark protection system.
As for Libya, after being forced to suspend the activities of its Trademark Office due to the 2011 revolution, it reopened two years later. It is also interesting to note that in 2022, the Libyan government temporarily suspended the acceptance of trademarks from foreign applicants but revoked its decision a few months later. The reasons for the implementation of this measure and its posterior revocation are not public but can be easily understood.
IP is crucial for supporting the economy and without a functioning one, a country cannot exist. Therefore, it is logical that countries, regardless of their political systems, have some form of IP rights protection, whether it is through specific IP laws or other laws related to investment, for example.
In conclusion, it can be asserted that while innovation is generally associated with democracy, the protection of IP rights does not imply the existence of democratic regimes. While not questioning the value of this principle, how should the specific situation of Eritrea be approached?
Eritrea: an exception to trademark rights protection?
Until 1991, Eritrea was part of Ethiopia, where Ethiopian IP law applied. However, in 1993, when Eritrea gained independence, the Eritrean government ceased to recognize trademark rights obtained under Ethiopian law.
To remedy this situation, the Eritrean government initially permitted the publication of cautionary notices. Cautionary notices are legal advertisements in newspapers indicating that a specific trademark is owned by a particular individual or company and that no one can use similar trademarks for similar goods/services. These cautionary notices were published in state newspapers after receiving approval from the government.
However, since August 2009, the publication in local newspapers has been prohibited. Since then, the country has experienced a long period of isolation and no IP law has been enacted up to the present time.
Eritrea has been a member state of WIPO since 1997. However, it is not a contracting party to the Paris Convention for the Protection of Industrial Property, the Patent Cooperation Treaty (PCT), or the Madrid Union.
Considering the example of South Sudan, which promptly expressed its intention to maintain trademark protection and preserve a certain degree of normal functioning after independence, we question the position of the Eritrean government.
History shows that very young countries often do not consider adopting IP legislation as a priority. Nevertheless, the case of Eritrea is somewhat different, as the government initially allowed the publication of cautionary notices but later prohibited it. This invites us to consider a distinct connection between IP and politics.
Eritrea's refusal to recognize trademarks registered under Ethiopian law prior to its independence signifies its desire to distance itself from the past and establish a separate identity. The delay in enacting an IP law indicates that, for the "newly born" country, there are other priorities to consider. But prohibiting all publication of cautionary notices denotes that the issue of trademark protection is subjected to a highly specific political context that denies essential rights.
In fact, the private sector has gradually been replaced by an all-pervasive state sector. And, when a state is too present, it is inevitably completely absent. In other words, while the Eritrean government exercises excessive control in certain areas such as politics, the economy, and freedom of expression, it fails to fulfill its responsibilities and provide necessary services in other essential areas such as education, innovation, and the implementation of the rule of law.
Throughout our discussion, we have observed that IP plays a crucial role in fostering innovation within democratic contexts. Additionally, we have seen that IP protection extends beyond political systems as it is effective regardless of their type. Furthermore, we have concluded that IP serves as a foundation for economic growth and sustains the existence of a country.
When examining the African continent, we can witness the multifaceted nature of IP.
In the case of Eritrea, nevertheless, IP serves a distinct purpose. Initially, it was employed as a tool to assert independence by rejecting the trademarks registered under the previous Ethiopian law. Subsequently, it played a role in supporting the country's existence through the publication of cautionary notices, providing partial trademark protection and promoting economic development. However, starting in 2009, the absence of proper IP has become an instrument of despotism, limiting freedom of expression and suppressing innovation.
Originally published by The Trademark Lawyer Magazine Issue 4, 2023.
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.