notes on educational disciplines
GENERAL INTRODUCTION
Intellectual property is increasingly becoming an indispensable component of negotiations relating to the exchange of goods and services. Borne out of desire by states to protect creations of the mind, intellectual property aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited monopoly rights, to control the use made of their productions. These rights do not constitute legal impediments to competitive business. They rather constitute a legal mechanism, fashioned to encourage and guarantee honest practices in industrial and commercial activities. Intellectual property regulates demand and supply of goods by discouraging dishonest practices such as unfair competition, piracy and counterfeiting in trade. In the wake of globalization and economic liberalization, consumers are confronted not only with a vast choice of goods of all kinds, but an increasing variety of services which tend more and more to be offered on a national and international scale. In such an environment, the role of signs that enable them to distinguish between the different goods and services is indispensable. These signs are known as trademarks.
A trade mark is a mark used or proposed to be used on or in connection with goods for the purpose of indicating that they are goods of the proprietor of the trade mark by virtue of manufacture, selection, certification, dealing with or offering for sale. The basic purpose of such marks is, to guarantee commercial origin. That is, individualizing the goods or services of a given enterprise and distinguishing them from those of fellow competitors. This purpose was recently heralded by the European Court of Justice when it adumbrated that “…the essential function is to guarantee the identity of the origin of the marked products to the consumer or end-user, by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin, …It must offer a guarantee that all goods or services bearing it have originated under the control of a single undertaking which is responsible for their quality”. For a trademark to fulfill this purpose, it must be distinctive. The mark owner may use it himself on the goods or services for which it is registered to the exclusion of others. He may license the use or assign his interest in the mark. It may also be transmitted to a purchaser in connection with the sale of the goodwill of a business. When a mark is used in connection with services, it is called a service mark. Service marks are used by hotels, restaurants, airlines, tourist agencies, car rental agencies, laundries and cleaners etc. In fact, all that is said on trademarks apply mutatis mutandi to service marks. Acquisition of trademark rights is either by registration or use.
Trademark counterfeiting generally has very adverse effects on genuine trade; effects which can serve as impediment to the economic growth of a country and which can even cause under-development. Combating this activity is a prime objective in various national and international conventions. The Bangui Agreement of February 2 1999(hereinafter referred to as the Bangui Agreement) that came into force on February 28, 2002, incriminates product counterfeiting too. Before independence, Intellectual Property in member states of the African Intellectual Property Organization (OAPI), was governed by laws which originated from their various colonial mastersas well as the Paris Convention for the Protection of Industrial Property 1883 as revised in 1967(hereinafter referred to as the Paris Convention). It was only in 1962, with the advent of the Libreville Accord (instituting the office africain et Malgache- industrial property regulating body) that francophone member states of the OAPI had a local legislation. On March 2, 1977, this Accord was revised at Bangui. The Industrial Property Management Office henceforth became the OAPI with seat in Yaoundé.
The Bangui Agreement has national value in the countries that have ratified it. These countries have been collectively referred in this work as the OAPI ZONE. The zone as of now is made up of:-
- The Republic of Benin
- The Republic of Burkina Faso
- The Central African Republic
- The Republic of Cameroon
- The Republic of Chad
- The Republic of Congo
- The Republic of Ivory Coast
- The Republic of Equatorial Guinea
- The Republic of Gabon
- The Republic of Guinea
- The Republic of Guinea
Bissau
- The Republic of Mali
- The Republic of Nigeria
- The Republic of Senegal and
- The Republic of Togo
A - STATEMENT OF PROBLEM
Trade marks are frequently annexed as can be attested by the bulk of fake products that flood the market. This directly or indirectly accounts for the poor economic situation of most sub-Saharan countries in general and member states of the African Intellectual Property Organization (O.A.P.I) Zone in particular, where the Bangui Agreement is applicable. Investors are reluctant to carry out business ventures where their rights will not be well protected against fraudsters (through elaborate and robust IPR Instruments).
Basically therefore, this work is an attempt to provide answers to questions like;
- Is the Bangui Agreement an adequate trade mark protection Instrument?
- Does it sufficiently define trade mark counterfeiting?
- What is trademark counterfeiting?
- What are its legal contours?
- Which are its effects?
- Can it be successfully combated?.
B - WORK PURPOSE
A response to the above questions could help attain the objective of this work, which is special and general. The specific objectives include;
- The establishment of the legal contours of the crime, with regard to other Intellectual Property Rights (IPRs) infringements in the light of trademark prescriptions.
- Examining the determination of trademark counterfeiting, as well as the rules used in establishing the offence.
- Exposing its effects and examining the various efforts in combating it as well as make some recommendations which could make it a less attractive venture for counterfeit of company products.
The general objectives are to;
- Study the conformity of the Bangui Agreement to International Prescriptions on trademark infringement
- Show the value of a trademark in a business activity
- Bring the offence out of the “self help” category of offences into the concerted “action category”, like piracy, a sister offence
- Spur up recognition of this domain of Intellectual Property Law as its collapse could be fatal to a national intellectual Property system.
- Pursue the reaction of the World’s legal effort in protecting trademarks
- Disseminate information on this section of the law.
C- METHODOLOGY EMPLOYED
The work, Trademark Counterfeiting Under The Bangui Agreement: Stakes and Challenges, is built on an incisive analysis of the Bangui Agreement. The analysis are comparative made with regard to existing International Conventions on the matter and other national standard setting instruments like the 1994 Trade Mark Act in force in Britain .We however paid keen attention to Cameroon as certain courts were visited in search of cases. This venture was really difficult as cases in Intellectual Property Law for the time being are really scanty as compared to the other branches of Law. This explains why we resorted to a plethora of foreign cases in our work. Of course, the few Textbooks, Articles and Reports in this domain of the law were instructive in the realization of this work. Finally, the Internet was of utmost guidance too.
D - STRUCTURE OF THE WORK
This work is divided into two parts that are accompanied by a general introduction and a conclusion. The first part is made up of three chapters. This part establishes the legal framework of trade mark counterfeiting. In this light trade mark counterfeiting infringement prescriptions (chapter one), determination of counterfeiting (chapter two) and the basis of trade mark counterfeiting (chapter three) have been examined. The second part delves on the procedural peculiarities and the raison d’être for combating counterfeiting. This is covered in one chapter (chapter four).A second chapter (chapter five) examines the stakes and challenges involved in combating this fraudulent trading. The conclusion states that, the Bangui Agreement is not very elaborate in its definition of the act as certain issues that vividly translate the act are still to be extensively defined by the communitarian Instrument. It goes further to give a gist of the differences that underline IPR infringements.
Ngang Andrew
Magistrate, Yaounde
If this is interesting, consider a donation
An examination of section 15 TRIPS Agreement in conjuncture with section 3, Annex III of the Bangui Agreement ( marks not eligible for Registration).
Section 9, The Bangui Agreement, disposes to this effect that, the mark may be registered for one or more classes of goods or for one or more classes of services within the meaning of the Nice Agreement on International Classification of Goods and Services for the purpose of Registration of marks (see the classification list infra, Annex)
For example, francophone member states ,the French law of7,January1791and that of July1884 regulated Patents while those of 23;June 1857,enabled by decree of 8,March 1873 and 3rd May 1890 governed Trade Marks
Back to top
|
|
