
DOING
BUSINESS IN OHADA MEMBER COUNTRIES WITH WHICH PROTECTION WITH REGARD TO
INTELLECTUAL PROPERTY ?
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AFRICAN
ORGANIZATION FOR INTELLECTUAL PROPERTY (OAPI)
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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.
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THE ROLE OF OAPI
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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.
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<> OAPI
MEMBERSHIP
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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.
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OAPI
INSTITUTIONS
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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.
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OAPI LAW
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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).
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A GLIMPSE ON OAPI FORMALITIES
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- 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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Patent registration
in Ohada Member Countries
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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.
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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).
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Rights resulting
from registration
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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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Items which may be registered
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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).
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The duration of the protection is 5 years as from the date
of the application filing (art. 6).
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Content of an application file for registration
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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).
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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)..
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Protection
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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
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The various types of trademarks
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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).
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Content of an application file for registration
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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).
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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).
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Rights resulting from registration
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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
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What types of designs and models may be registered ?
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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).
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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).
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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.
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Rights resulting from registration
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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).
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OAPI Définition
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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).
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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).
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- 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).
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Rights resulting from registration
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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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OAPI définition
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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).
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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).
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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).
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Content of the application file for registration
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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).
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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).
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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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