DOING BUSINESS IN OHADA MEMBER COUNTRIES WITH WHICH PROTECTION WITH REGARD TO INTELLECTUAL PROPERTY ?



 
 

Intellectual property rights in Ohada Member Countries are presently protected in the framework of OAPI Law the details of which are provided hereunder.
OAPI PATENTS REGISTERED PATTERNS

DESIGNS & MODELS
TRADE NAMES

AFRICAN ORGANIZATION FOR INTELLECTUAL PROPERTY (OAPI)


Historical background of OAPI Role of the 'OAPI OAPI Membership
OAPI Institutions OAPI Law A glimpse at OAPI formalities
A glimpse on the costs relating to registration of some intellectual property

<> HISTORICAL BACKGROUND OF OAPI



U ntil 1962, the French legislation on industrial property was applicable in most of the French-speaking African countries gathered within the "French Union".

On September 13,1962, twelve of these countries decided to set up a common body to be used as a national industrial property office for each of them. The Libreville Agreement thus gave birth to the African and Malagasy Registrar for Industrial Property (OAMPI) on the basis of three main principles :

- the adoption of a uniform legal protection for the industrial property implying the setting up and implementation of common administrative procedures,

- the creation of a common body to serve as a national industrial property registrar for each member State,

- the centralization of the procedures resulting from these institutional options.

The Libreville Agreement concerned patents, trademarks as well as designs and industrial models.

This Agreement was updated in the framework of the Bangui Agreement dated March 2, 1977 which lead to the setting up of the present African Organization for Intellectual Property (OAPI) including henceforth the main intellectual property rights (see hereafter "OAPI Law"). The extension of the OAPI scope to additional property rights is contemplated.




<> THE ROLE OF OAPI


The main missions of OAPI are :

- to issue titles for the protection of intellectual property which are valid throughout all OAPI Member States following a common procedure,

- to gather and publish information in this field,

- and to be involved in the technological development of the Member States.

<> OAPI MEMBERSHIP


OAPI includes 16 Member States among which Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Côte-d'Ivoire, Gabun, Guinea Bissau, Guinea, Mali, Mauritania, Niger, Senegal, Chad and Togo. Equatorial Guinea is the last Member State. The Bangui Agreement has been enforced in Equatorial Guinea as from November 23, 2000.

To be emphasized : the Comores and Mauritania which are presently members of Ohada are not members of OAPI, therefore, they have their own legal and institutional environment with regard to intellectual property.

<> OAPI INSTITUTIONS


They are : the Board of Directors, the General Management and the High Appeal Committee (Comission Supérieure des Recours).

- The Board of Directors : attended by the member States representatives (one per State), it decides on the general policy of the Organization, regulates and supervises the latter's activities.

- The General Management : is involved in the management of the Organization under the authority of the General Manager.

- The High Appeal Committee : composed of three members chosen by drawing of lots on a list of representatives appointed by member States (one per State), it is in charge of ruling on the appeals in connection with :

. rejected applications for industrial property rights protection;
. rejected applications to keep existing rights or to extend the duration of the protection ;
. rejected applications for intellectual property rights reinstatement ;
. objections.

The headquarters of OAPI are inYaounde in the Republic of Cameroon.



<> OAPI LAW

In addition to the Bangui Agreement mentioned above, OAPI Law includes Appendixes on Patents (Appendix I), Registered Patterns (Appendix II), Trademarks (Appendix III), Industrial Designs and Models (Appendix IV), Trade names (Appendix V), Captions (Appendix VI), Copyrights (Appendix VII).

OAPI Law is the domestic industrial property legislation of each Member State.

Final court decisions delivered in one Member State by implementation of the provision of one of the above-mentioned Appendixes shall be enforceable in any other Member State (article 15 of the Agreement).

<> A GLIMPSE ON OAPI FORMALITIES

- Applications for the registration of patents, registered patterns, trademarks or service marks or of industrial designs and models shall be filed :

. when the applicant is residing in an OAPI Member State : with the national Office or with the Oganization, according to the laws in force in that Member State,

- when the applicant is residing out of OAPI Territory : directly with the Organization through a representative chosen in one of the Member States.

- Patent applications of international scope requested by applicants residing in one of the Member States shall be filed with the Organization, following the terms and conditions provided for in the Patent Cooperation Treaty (art. 5 of the Agreement).

Any rejection of registration application for industrial property may be appealed to the High Appeal Committee (art. 16).

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PATENTS

Patent registration in Ohada Member Countries
What types of inventions are patentable ? Content of an application file for registration
Any new invention involving an inventive step with possible industrial application is patentable.

The application file shall include :

- a request to the General Manager of the Organization in duplicate ;

- a proof of payment to the Organization of the required filing and publication fees;

- a simple power of attorney, without any stamp, if the applicant has a representative ;

- a sealed envelope containing in duplicate :

. the description of the invention concerned,

. related drawing(s), if any,

. an abstract of the description including the claim(s) mentioned as well as the drawings related thereto,

. and the claim(s) stating the extent of protection applied for.

Registration procedure
When the application has been correctly filed, the patent may be issued without any checking as to the substance, where applicable, after a search report has been drawn up. When the Organization notes that all the requirements are met and that, where applicable, the search report(s) has/ve been drawn up, the patent certificate may be issued. (art. 17.1).

Rights resulting from registration

The patentee is entitled to prevent any utilization of the patented invention as follows :

-when the patent has been granted for a product :

. prohibition from manufacturing, selling, importing, sales offering, selling and using thesaid product ;

- when the patent has been granted for a process :

. prohibition to use thesaid process,

. prohibition from taking any of the above-mentioned steps on a product that was directly obtained by utilizing thesaid process.

Patent protection duration is 10 years as from the date of the application filed (art. 6.1).

Any infringement of the patentee's rights by manufacturing patented products or by utilizing the patented process is an offence liable to punitive sanctions, nothwithstanding possible compensation in addition. However, no action for patent infringement is admissible where the patented invention has not been utilized in the territory of one of OAPI Member State by the patentee or his/her rightful claimants after 5 years following patent issuing, unless there are legitimate reasons for this (art. 58).

Shall be similarly liable those who knowingly hid, sold or offered to sale or brought in the territory of one OAPI Member State one ou several counterfeited items (art. 59).

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REGISTERED PATTERNS

Items which may be registered
Protection

Working instruments or items intended to be used which :

- may be useful with regard to the work or utilization contemplated because of their new configuration, permutation or device,

- and with possible industrial application (art. 1er).

The duration of the protection is 5 years as from the date of the application filing (art. 6).

Content of an application file for registration
Registration procedure

The application file shall include :

- a request to the General Manager of the Organization in duplicate ;

- a proof of payment to the Organization of the required filing and publication fees;;

- a simple power of attorney, without any stamp, if the applicant has a representative ;

- a sealed envelope containing in duplicate :

. the description of the pattern concerned,

. related drawing(s), if any,

. an abstract of the description,

. and the claim(s) stating the extent of protection applied for (art. 10).


When the application has been correctly filed, the pattern may be registered without any checking as to the substance. When the Organization notes that all the requirements are met the pattern is registered (art. 16.1)..















Protection
Any infringement of the beneficiary of registered patterns 's rights by manufacturing products or by utilizing the protected pattern is an offence liable to punitive sanctions, nothwithstanding possible compensation in addition. However, no action for patent infringement is admissible where thesaid beneficiary or his/her rightful claimants have not utilized the registered patterns in the territory of one of OAPI Member State after 3 years following the registration, unless there are legitimate reasons for this (art. 35).

TRADEMARKS AND SERVICE MARKS

The various types of trademarks


 May be registered as a trademark
- Trademarks and service marks may be :

. either personal,

- or collective (those that may be used only by public bodies, trade unions and unions thereof, partnerships and groups of producers, industrialists, cottage industry, tradesmen, inasmuch as they are legally recognized and have the legal ability in this regard).
 Any conspicuous mark that an undertaking is contemplating using to differentiate his products or services and notably : family names themselves or names under a special arrangement, special names, names given at random, fancy names, the particuliar shape or operation of a product, tickets, envelopes, symbols, prints, stamps, combination or arrangement of colours , designs, figures, slogans, pseudonyms (art 2.1).



Content of an application file for registration
Registration procedure

The application file shall include :

- a request to the General Manager of the Organization in duplicate ;

- a simple power of attorney, without any stamp, if the applicant has a representative ;

- four copies of the trademark model (with a list of the products and classes related thereto) signed by the applicant or his/her representative among which one bears the words " original copy". This copy shall determine the scope of the trademark,

- a photograph of the trademark (art. 9).



Any application for trademark registration gives rise to a checking up of the fulfillment of the requirements as to the form and of the payment of required taxes.

In the event of existence of a small mistake related to one of the two requirements listed above, the applicant is granted an extension of 2 months to put his file in order, which may be extended again for 30 days upon the grounded request of the applicant or his/her representative. Where the file in not in order within the time-limit granted, the applicationshall be rejected.

When the Organization notes that the above-mentioned requirements are fulfilled, the trademark is registered and the publication made (art. 12).

The registration date is the application filing date. The original copy of the trademark is inserted in the Trademarks Registry and the applicant is handed over a copy bearing the registration seal (art. 13).

Rights resulting from registration

A trademark shall be owned by the first to apply for its registration (art. 7.1).

The duration of the protection is 10 years as from the date of the application filed, however, it is possible to renew it indefinitely by revolving renewals every 10 year. (art. 16).

A registered trademark entitles his/her owner to an exclusive right to use it or any sign so similar to it that it may confuse the public, for the products or services for which registration was made, as well as for similar products or services. (art. 20.1).

Shall be liable to punitive sanctions those who :

- counterfeit a trademark or use a counterfeited one ;

- fraudulently placed on his/her products or items to be sold, a trademark owned by somebody else ;

- knowingly sold one or several products with a counterfeited trademark or with one which has been fraudulently placed on thesaid product, or who knowingly sold, offered to sale, supplied or offered to supply products or services under such a trademark ;

- who knowingly delivered a product or supplied a service other than the one that has been asked to them under a registered trademark (art. 37).

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INDUSTRIAL DESIGNS AND MODELS

What types of designs and models may be registered ?


Content of an application file for registration
Registration procedure
Any new design, any new shape, any industrial item which is different from the others because of its specific, new arrangement or of its outside angles giving it a particular, new aspect (art. 2).












 The application file shall include:

- a filing statement;

- a power of attorney,

- under penalty of being declared void, two identical copies of the representation or specimen under a sealed envelope. The same file may concern up to 100 designs which shall then be numbered from the first to the last one. Beyond that figure, the file is no more accepted (art. 9).
Where the application has been correctly filed, the design or model is registered and a certificate is sent to the applicant.

The registration date is the application filing date.

In the event of existence of a small mistake related to one of the two requirements listed above, the applicant is granted an extension of 2 months to put his file in order, which may be extended again for 30 days upon the grounded request of the applicant or his/her representative. Where the file in not in order within the time-limit granted, the application shall be rejected.

Rights resulting from registration

A design or model shall be owned by he who created it or his rightful claimants, but until evidence to the contrary is brought, anyone who first registered it is supposed to be its author (art. 5).

The duration of the protection is 5 years as from the date of the application filed (art. 13).

Any infringement to the rights of the beneficiary of a registered design or model shall be liable to punitive sanctions or compensation (art. 37).
TRADE NAMES

OAPI Définition


Content of the application file for registration
Registration procedure


A trade name is a name used by an undertaking for its trade, industrial, handicraft or agricultural activities (art. 1).



















 The application file shall include :

- a request for registration in duplicate to the General Manager of the Organization entailing the following information:

. first and last name or company name, address and nationality of the applicant,

. the trade name the registration of which is requested with, where applicable, a copy of the photograph of thesaid name in duplicate,

. location and type of activity of the undertaking,

a proof of payment to the Organization of the required filing and publication fees;

- a simple power of attorney, without any stamp, if the applicant has a representative (art. 6).

- The Organization shall check if the trade name complies with the provisions of article 2, if the application filed is correct and if all required fees have been paid. Where everything is in order, registration shall be be carried out along with publication.

The registration date is the application filing date.

- The applicant is sent a copy of the trade name model with the registration seal.

In the event of existence of a small mistake, the applicant is granted an extension of 30 dayss to put his file in order, which may be extended again for 30 days upon the grounded request of the applicant or his/her representative. Where the file in not in order within the time-limit granted, the application shall be rejected (art. 8).



Rights resulting from registration


A trade name belongs to the first who used it or registered it (art. 3).

When there is an infringement threat on the rights of the beneficiary, the latter may institute a preventive action. Where these rights are actually infringed, he is entitled to stop the author and demand damages in addition to any other compensation provided for by civil law.

In addition to damages, shall be liable to punitive sanctions he who will have marked or forged the name of a manufacturer, industrialist or craftsman with any other name than the real one or the trade name of an undertaking other than the one where thesaid products were manufactured.

The same shall apply to he who knowingly offered for sale or commercialized items under such names (art. 15).

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CAPTIONS

OAPI définition


Requirements as to OAPI protection
Who may apply ?

Shall be considered as a "caption", the geographical name of a country, a region or a specific location used to refer to a produce originating from there, the properties of which are exclusively due to that geographical location whether because of natural factors, human factors or both; shall also be considered as a geographical reference the name which, without specifically relating to the name of a country, region or particular location, does relate to a certain geographical zone in connection with some produces (art. 1er).



 Captions may be protected when registered by the OAPI if such registration results from the implementation of an international convention to which the OAPI Member States are parties.

Foreign captions may only be registered in OAPI if this is provided for in an international convention to which the Member States are parties or in the law implementing such a convention (art. 3).

Natural persons and corporate bodies carrying out activities as producers in the geographical zone mentioned in the application for the produces mentioned in it, as well as the unions thereof,

- or any other competent authority (art. 5).

Content of the application file for registration
Rights resulting from registration
The application file shall include a request to the General Manager of the Organization entailing :

-the first and last names or company name, address and nationality of the applicant as well as his qualification in the framework of the application ;

- the caption the registration of which is requested;

- the geographical zone concerned ;

- the produces related to the caption, with a precise description to see if it is raw materials, semi-finished or manufactured products ;

- where applicable their main properties ,

- a proof of payment of the required taxes (art. 6)

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Only the producers carrying out their activities in the geographical zone concerned shall be entitled to use the registered caption for the produces mentioned in the Register, inasmuch as theyentail the properties described in thesaid register (art. 11).

Subject to the cases provided for in Article 12 § 1 and 2, shall be prohibiyed any use, for commercial purposes, of a registered caption or a similer name, even if the actual origin of the produce is indicated or if the name has been translated with in addition terms such as "type", "imitation" etc(art. 12).

 

 

 

 

COPYRIGHTS

Protection of copyrights


Copyright entails the exclusive right to act or authorize one of the following :

- reproduction of the work, whatever the way,

- communication of the work to the public,

- communication of a broadcasted or televised work ;

- translation or adaptation of the work (art. 3).

The publishing, reproduction, representation or distribution, by any means, or import on the national territory of a protected work in infringement of the author's rights constitutes an offence provided for and punished by the national laws (art. 38.1).




TRADE SECRETS




OAPI Law does not entails any provision on trade secrets which should be protected in the framework of contractual schemes where domestic law does not entail any provision in this regard.

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