Experts Provide Overview of Enforcement of IP Rights in Africa

Published: March 10, 2021

Carolina Montero Abril Abogados, S.L.P. Madrid, Spain INTA Bulletins—Europe Subcommittee

INTA launched its six-part webcast series called “Enforcement of IP Rights in Africa” on February 25 with an update on the current economic climate and what factors are contributing to counterfeiting, and the anticounterfeiting activities taking place across the region.

The hosts of the first session of the series are Vanessa Ferguson (Ferguson Attorneys, South Africa) and Marius Schneider (IPvocate Africa Legal Advisers Ltd, Mauritius). They are authors of a book entitled, “Enforcement of Intellectual Property Rights in Africa.” Going forward, in future sessions, they will moderate the discussions among practitioners, government officials, and others, as well as provide insights and information on the state of counterfeiting in the region, and suggest effective ways to combat the same.

A second session, held live on March 4, focused on Southern Africa, which has the most robust customs recordal. Speakers at the second session included Nuno Cruz (J. Pereira Da Cruz, Portugal), John Kabare (African Regional Intellectual Property Organization, Zimbabwe), Amanda Lotheringen (Companies and Intellectual Property Commission, South Africa), and Nancy Samuriwo (Samuriwo Attorneys, Zimbabwe).

The first two sessions are now available on demand.

Subsequent sessions in the series will provide more detailed analysis in additional regions of the continent. The final session will feature local and international experts speaking on anticounterfeiting activities, cross-border initiatives, and the importance of international collaboration. The webcast is live every Thursday through April 1 and each session is available on demand afterward.

International companies are showing an interest in African countries because “Africa is really rising,” according to Mr. Schneider. It is drawing the interest of rights holders and investors because its economy is growing faster than the global average, with a young and rising middle-class population keen to spend its money on brands and branded quality products. He noted that consumer expenditure is expected to reach US $2.5 trillion in 2030, and 70 percent of the world’s 50 largest fashion and consumers goods companies currently are present in the African continent.

Who is doing business with Africa? China is the largest trading partner in Africa, surpassing the United States in 2009. As China is looking for places to invest, “an obvious place to look is Africa,” said Ms. Ferguson. China is the destination of nearly 16 percent of Sub-Saharan African exports, and the source of 14 to 21 percent of the region’s imports, she said.

“If you want to prosper, first build roads,” Ms. Ferguson said of China’s strategy, quoting a Chinese proverb. China is investing in Africa’s transportation infrastructure, such as roads and railways.

The speakers addressed the typical “enabling factors” of counterfeiting in the African continent, such as porous borders, lack of cooperation between countries, and limited resources of the enforcement agencies, of which the latter may even result in requests for payment from the titleholders. Other factors include difficulty with customs enforcement, lack of specialized courts, and the growing online marketplace that is not easy to monitor.

“In Africa, counterfeiting can kill,” Mr. Schneider said, noting that 42 percent of falsified medicines globally are sold on the African continent.

“The fact is that counterfeiting is not regarded as a serious crime, but rather a victimless crime aggravated by the situation of poor consumers making counterfeited goods appear as a cheap alternative,” said Mr. Schneider, adding that bribery is also a factor.

In South Africa, more than 70 percent of firms doing business there report customs inefficiency as the top constraint for business investment, he said. The under-resourcing of customs authorities is part of the problem.

Nevertheless, these issues cannot overshadow the brighter aspects for titleholders in the African continent.

The speakers stressed positive initiatives from international associations such as the World Customs Organization and Interpol and the strong regulatory efforts African countries are making toward the criminalization of intellectual property (IP) infringement both in trademark and piracy, which is now in place in 53 of the 54 African countries. In addition, legislative amendments and developments in IP laws are modernizing and adapting to the current reality with the help of the World Intellectual Property Organization, the EU, and the U.S. Patent and Trademark Office.

Another bright spot is the establishment in some countries of anticounterfeiting agencies where titleholders can apply for formal customs interventions and the intent to establish specialized IP courts (for instance, in Kenya).

There is enthusiasm for the international initiatives, and the wish that they will soon understand that “there is a need to organize African anticounterfeiting in Africa for the protection of African consumers,” Mr. Schneider said.

The session ended with the speakers offering interesting 10 Tip & Tricks, with practical advice for IP owners.

Learn more and register here for the webcast series, “Enforcement of IP Rights in Africa.”

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. 

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