North African countries collaborate to strengthen anti-counterfeiting measures in an environmentally sustainable manner

Countries in Northern Africa, including Tunisia, Algeria, Morocco and Egypt have been increasing their focus on anti-counterfeiting and protection and enforcement of intellectual property rights.

A seminar, following on from previous events hosted by AfrIPI, was held in September 2023 in partnership with other international organizations to focus on enforcement of intellectual property rights and fight against counterfeiting. The seminar enabled open dialogue between various stakeholders to discuss effective strategies in detecting, monitoring, and investigating IP infringement and to find workable solutions for the destruction of seized goods in an environmentally sustainable manner including recycling seized goods for other uses.

SOURCE: AfrIPI supports North African countries in the fight against counterfeiting and the enforcement of intellectual property rights | AfrIPI

Netflix, Amazon Prime and others invest in Nigeria

Nigeria has the potential to become one of the largest export markets for the US creative sector.

Ramin Toloui, assistant secretary for economic and business affairs, United States department of state, says the US government is willing to invest in Nigeria’s creative economy. The U.S. mission in Nigeria has been supporting the Africa International Film Festival (AFRIFF) to further strengthen the collaboration between the Nigerian and American film industries for nine years running. “Several US film and entertainment companies, such as Netflix, Amazon Prime, and Paramount, are making large investments in the Nigerian market and are seeing strong prospects for future investments. I want to see many more investments and increased commercial ties.”

The U.S mission has been providing funding for capacity-building training for emerging filmmakers and directors. Masterclasses for film directors have been run in Nigeria during the 2023 AFRIFF by US industry leaders.

What has driven this increased interest and investment? Nigeria has been focusing on ensuring that there is a system in place for intellectual property protection, enabling creatives to monetise their work and attract investment. In support of creativity, innovation and economic growth, the Nigerian President Muhammadu Buhari has confirmed partnership with the legislature to foresee the realisation of a workable legislative framework.

The Creative Industries Development Bill is currently being implemented, in respect of transforming of the Nigerian creative space.

Source: https://cida.ng & Nigeria’s creative industry has potential to become largest export sector– US official | Nigerian News, Latest Nigeria In News. Nigeria News. Your online Nigerian Newspaper. (nigerianeye.com)

WIPO Director General Visits Namibia and Pledges Support in Developing an Innovation Ecosystem

Over the years, WIPO has been assisting African countries in developing IP policies and innovation ecosystems. Namibia is one of the countries collaborating with WIPO. This collaboration resulted in WIPO’s Director General, Daren Tang visiting Namibia to pledged WIPO’s continued support for strengthening Namibia’s innovation ecosystem. The two- day visit enabled the Director General to engage in high level consultation with government officials, executive management of the Namibian IP Office and other stakeholders from the innovation and creative sectors under the theme “Unlocking intellectual property and innovation systems for economic transformation and social impact”. Some of the objectives discussed during the visit included development of IP systems to create jobs and local wealth for Namibians, assisting local innovators and creators in understanding and using the IP system, capacity building and skills development projects for IP management at the Namibian IP Office, and creation of an inclusive IP ecosystem focusing on communities and business sectors which have been previously under-represented within the IP system.

Source: WIPO Director General Wraps Up Official Visit to Namibia, Pledges Support in Developing Innovation Ecosystem

WIPO Director General launch a joint master’s degree program on IP and innovation in Morocco

WIPO has extended its collaboration with Morocco to include a joint master’s degree program on IP and Innovation. The agreement regarding establishment of the joint master’s program was signed during a visit by WIPO’S Director General Daren Tang to Morocco in October 2023.

The master’s program hosted by Mohammed VI Polytechnic University (UM6P) and the Moroccan Industrial and Commercial Property Office (OMPIC) will be presented in Arabic, French and English to ensure inclusivity and accessibility.

Source: https://www.wipo.int/about-wipo/en/dg_tang/news/2023/news_0044.html

Recent successes in appeals for delays in meeting formalities deadlines for patent matters in Egypt

Egypt is one of several countries that still require applicants to obtain legalisation of certain documents when filing patent, design or trademark applications in that country. Failure to file the legalised documents within the deadlines provided often lead to lapsing of the right in question.

Applicants are afforded the opportunity to file an appeal against the rejection of the application which is heard by the Appeals Committee.

Legalisation is a complex and time-consuming process, requiring signature, verification and authentication at various high levels of government and eventually signature by the Department of Foreign Affairs. In the past few years, we have seen increasingly delays in the processing of legalised documents for clients in certain countries often leading to complications in the processing of their applications in Egypt. In cases where the applicant could show that sufficient steps were taken to meet the deadline and that the failure to meet the deadline was unintentional and / or out of their control have typically been well received and the application reinstated.

However, it should be remembered that patent matters are dealt with separately to trademark and design matters and the approach to this issue has, in our experience not been consistent.

47th Session of the Administrative Council and 19th Session of the Council of Ministers of the African Regional Intellectual Property Organization (ARIPO) held in Gaborone, Botswana

The 47th Session of the Administrative Council of ARIPO was held in Gaborone, Botswana from 20 – 23 November 2023.  Adams & Adams Partners, Nicky Garnett and Jameel Hamid, together with the Africa Practice Manager, Menzi Maboyi attended the session.

Adams & Adams works closely with ARIPO and we continue to support ARIPO in its initiatives to promote and improve the ARIPO system. Representatives from all 22 ARIPO member states attended this year’s event which also saw the attendance of representatives from Burundi and Ethiopia as observer states and various partner organisations including UPOV, EUIPO and OAPI. The event provides a unique opportunity to meet and engage with IP officials from the ARIPO member states and to cement our relationships with and participate in the activities of ARIPO.

L – R: Jameel Hamid (Adams & Adams), Ms Grace Ama Issahaque(Registrar General and Registrar of IP, Ghana) and Nicky Garnett (Adams & Adams)]

Nicky Garnett with the Registrar General of the Uganda Registration Services Bureau (URSB), Ms Mercy Kainobwisho]

Adams & Adams visits Zambia

On 10 November 2023, Adams & Adams Partner and Chairperson of the Africa Strategy Committee, Mr Simon Brown and the Africa Practice Manager, Mr Menzi Maboyi, travelled to Lusaka, Zambia to meet with the newly appointed Registrar and Chief Executive Officer of the Patents and Companies Registration Agency (PACRA) and his team.  

Our team was warmly welcomed by Mr Mpalo and taken on a tour of the office and met the departmental Heads and their teams. The representatives of PACRA held a round table discussion with our team in which they outlined general IP practice in Zambia, the plans to restructure the organisation, and touched on the new Trade Marks Act which is currently before Parliament. Our team also took the opportunity to visit our local office and to meet with other IP practitioners.

Zambia remains an important jurisdiction for Adams & Adams and we continue exploring ways to further enhance our IP offering by working with partners who share the firm’s ethos of integrity, commitment to service excellence and creation of value to our clients.

L – R: Jatin Patel (Local Office), Belinda M. Siankumo (Board Secretary and Chief Legal Officer, PACRA), Menzi Maboyi (Adams & Adams), Benson Mpalo (Registrar and Chief Executive Officer, PACRA), Simon Brown (Adams & Adams), Chewe Chilufya (Deputy Registrar IP, PACRA), Emmanuel Chisanga (Senior Manager Trade Marks, PACRA) and Palidje Nzima (Manager Patents and Designs, PACRA)

OAPI workshop: Geographical Indicators

OAPI in collaboration with the Intellectual Property Rights and Innovation in Africa (AfrIPI) project and the Project to Support the Implementation of Geographical Indications (GI) in OAPI Member States (PAMPIG2) recently hosted a regional workshop in the Cameroonian capital, Yaoundé. The three-day event focused on the “Management of Geographical Indications in the OAPI area: Current approaches, lessons, and prospects” and aimed to introduce new GI management mechanisms to participants from OAPI’s seventeen member countries.

According to Jean-Marc Châtaignier, the Ambassador/Head of the Delegation of the European Union to Cameroon, labelling African products is crucial for international competitiveness and is of benefit to both producers and consumers.

While the African continent already boasts GI-labelled products, experts emphasize the need to increase the number of African GIs to capitalize on economic opportunities. The Regional Workshop discussions highlighted the potential of GIs in Africa, especially with the African Continental Free Trade Area (AFCFTA) which represents a market of approximately 1.2 billion consumers.

Drawing inspiration from the European experience, OAPI aims to build GIs for local products, aligning with its Strategic Plan for 2022-2027.The workshop aimed to promote international best practices in intellectual property to facilitate intra-African trade within the African Continental Free Trade Area. OAPI member countries are urged to establish CNIGs to ensure compliance with GIs, fight against fraud, and protect honest producers from unfair competition. OAPI’s Strategic Plan emphasizes the fight against counterfeiting and the consolidation, promotion, and sustainability of existing and future Geographical Indications.

Sources:
AfrIPI and OAPI strengthen the capacities of the national GI committees | AfrIPI
Geographical Indications: a lever for African economic growth – Journal Intégration (journalintegration.com)

The Power of the Embargo – A reaffirmation by the SCA of the Body Corporate’s right to impede transfer of a sectional title unit

In the recent decision of the Supreme Court of Appeal in the matter between The Body Corporate of Marsh Rose v Steinmuller and Others (149/2022) [2023] ZA SCA 143, the court underscored the inherent right of a body corporate to block the transfer of a property by withholding a levy clearance certificate because of outstanding amounts due to it by the owner of the property being sold. In this article, we delve into the facts of the case and unpack the extent to which this so called ‘embargo’, embedded in Section 15B(3)(a)(i)(aa) of the Sectional Titles Act, No. 95 of 1986 (the ‘Act’), could impact owners and buyers alike.

On 30 January 2018 at a public auction conducted by the Sheriff of Halfway House (the ‘sheriff’), Mr Steinmuller bought a unit in the Marsh Rose Sectional Title Scheme (SS269/2012) for R970 000,00. The sale in execution was triggered by a judgment granted in favour of Standard Bank against the current owner. When properties are sold at auction pursuant to foreclosure proceedings, it is common for the conditions of sale to stipulate that the buyer (and not the owner, as is normally the case) would be liable for charges such as the sheriff’s commission, arrear municipal rates and taxes, and, if the property is situated in a complex or other type of community scheme, all amounts which may be due to the body corporate or the homeowners association.

Section 15B(3)(a)(i)(aa) of the Act provides that the Registrar of Deeds cannot register the transfer of a unit in a sectional title scheme without a conveyancer’s certificate confirming that the body corporate has certified that all amounts owing to it have been paid or that suitable arrangements have been made for payment thereof. This provision entitles a body corporate to withhold the certificate until all moneys owed to it in respect of the property have been paid, thus preventing the registration of the transfer of the property to take place.

Following conclusion of the sale, the Body Corporate of Marsh Rose (the ‘body corporate’) indicated that it required payment in the amount of R312 903,21 consisting of arrear levies, water consumption and sewerage service charges, costs, legal fees, and interest due to it by the current owner before it would be able to issue the required levy clearance certificate. Mr Steinmuller disputed the amounts claimed and when resolution eventually eluded the parties, Mr Steinmuller launched an application to the Gauteng Division of the High Court, Johannesburg (the ‘high court’) for an order compelling the body corporate to issue the clearance certificate. The high court granted the order and ordered Mr Steinmuller to deposit R250 000,00 into his attorney’s trust account as security for any claim which the body corporate may have. The order further provided that the body corporate was to institute an action or refer to arbitration its claim against Mr Steinmuller and any other party in respect of the property, within ten days of the granting of the order.

With leave of the high court, the body corporate appealed to the full court. However, the court dismissed the body corporate’s appeal finding the high court’s order to have been appropriate.

Next, the body corporate turned to the Supreme Court of Appeal (the ‘SCA’). It was at this junction that the National Association of Managing Agents (‘NAMA’) was, with leave from the SCA, allowed to intervene in the matter. NAMA is a voluntary, non-profit organisation which, according to its website, represent more than 500 members across the country consisting of managing agents and other related service providers to the community scheme management industry.

In contrast to the high court’s previous rulings, the SCA, in handing down its judgment on 2 November 2023, unequivocally found in favour of the body corporate. The SCA declared that the high court’s order was not a competent order and it could not stand. Accordingly, the order of the full court was set aside and replaced with an order upholding the body corporate’s first appeal. The initial order of the high court was set aside and replaced with an order dismissing Mr Steinmuller’s application.

In assessing the competency of the high court’s order, the SCA took issue with the fact that the order required the body corporate to “sign any and all papers and take any steps necessary for the transfer of the property”. Yet, the body corporate is not the owner of the property and not a party to the agreement of sale and therefore not capable of facilitating the transfer. Mr Steinmuller’s right to compel transfer lays against the sheriff who is vested with the power to give transfer as if he is the owner of the property. Secondly, in referring to the security payment by Mr Steinmuller, the high court’s order stipulated that the body corporate is to institute a claim against Mr Steinmuller and any other party, yet the body corporate does not have a claim against Mr Steinmuller, nor any other person other than the registered owner of the property.

As in previous cases before the court, the SCA compared the embargo provision against a similar provision found in Section 118(1) of the Municipal Systems Act, No. 32 of 2000 (i.e. that the Registrar of Deeds may not register the transfer of a property without being furnished with a certificate from the local authority confirming that rates and taxes for the two years preceding the application, have been paid up to date). The Section 15B(3)(a)(i)(aa) embargo serves a similar purpose. It assists bodies corporate to recover amounts owed by owners of units in the scheme which ultimately provides protection for the other owners in the scheme who all have a vested interest in the wellbeing and proper management of the scheme.

The SCA referred to the matter of Willow Waters Homeowners Association (Pty) Ltd v Koka NO and Others in which the SCA held that: “It is accepted that these statutory embargoes serve a vital and legitimate purpose as effective security for debt recovery in respect of municipal service fees and contributions to bodies corporate for water, electricity, rates, and taxes etc. Thus, they ensure the continued supply of such services and the economic viability and sustainability of municipalities and bodies corporate in the interest of all the inhabitants in the country”.

It is clear from the SCA’s findings that a body corporate’s right to resist transfer by refusing to issue a levy clearance certificate until all moneys due to it have been paid (or arrangements made to its satisfaction) remain intact. While some may view the embargo as potentially open for abuse, it must be weighed against the value of its protection for community schemes. If the statutory provision were to be diluted, it could seriously jeopardise the financial stability of such community schemes, no doubt to the detriment of owners and the property industry at large.

Although the embargo does not grant the body corporate a preferent claim in the traditional sense, it certainly provides it with adequate leverage for the recovery of an owner’s debt. Here, one could perhaps spare a thought for the financial institution, which, as we have witnessed in this case, has been unable to realise its security even though it ís considered a preferent creditor. It may well be worthwhile for financial institutions to keep a closer eye on the maintenance of levy – and rates payments of non-payers whose properties may eventually become executable. This proactive approach could avert the frustrating situation often encountered in foreclosure proceedings due to vast amounts of outstanding municipal rates and taxes or body corporate levies.

In conclusion, this case serves as a stark reminder to those hoping to enter the property market or expand their property portfolios by acquiring properties through auctions of the importance of giving careful consideration to the conditions of sale and, as far as possible, to conduct a thorough due diligence investigation into the property and potential debts which might come with it.

Contact our team of property law professionals for expert insights and guidance when acquiring or disposing of your real estate assets.

Adams & Adams Your Trusted Partner in North Africa

As Africa’s largest intellectual property law firm, Adams & Adams (A&A) has continued to establish Associate Offices in strategic jurisdictions within the continent. With 23 Associate Office across Africa currently, the establishment of an office in Egypt in 2015, remains a significant milestone in the evolution of the firm.

Our office in Egypt has provided the firm with a strong foothold in the North African region and enhanced our ability to offer better and more cost-effective services to our clients.

Although Adams & Adams is well known for its work in South Africa and other jurisdictions in Sub-Saharan Africa it is a little-known fact that the Firm has extensive experience in IP matters across North Africa including Egypt, Libya, Algeria, Tunisia and Morocco.

Our many years of experience operating outside of South Africa have enabled us to put in place mechanisms to ensure a trusted and high-quality service for our clients including comprehensive in-house due diligence processes in line with the most stringent FCPA / Anti – Corruption legislation across the world.

“Our North African operation places Adams & Adams in a unique position in terms of its IP offering on the African continent. A&A’s strategy has not only been to expand its network in Africa, but to ensure that this expansion is beneficial to its clients by offering quality service and being a trusted alternative to other firms operating in the region.”, Simon Brown, Partner and Chairperson of the Africa Strategy Committee

We work in close cooperation with our Egyptian office to ensure consistency in the service we are able to offer across all jurisdictions where we operate in Africa.

Our most recent engagement took place in September 2023 in Pretoria, South Africa at the annual Africa Network Meeting which was attended by over 70 IP practitioners and IP office administrators from over 25 countries in Africa.

Mr Amr Eldin, and son, Mohamed Eldib at the Africa Network Meeting, in Pretoria, South Africa, September 2023.

The Africa Network Meeting is our flagship event of the year and is the only meeting of its kind in Africa. Although it is always good to meet our colleagues from our partner offices at our Head Office in Pretoria, we travel extensively throughout the year to ensure that we remain aware of on the ground developments and create and maintain relationships with the IP Offices in key jurisdictions. Our most recent visit to Egypt, Tunisia and Morocco proved invaluable in building such relationships and the learnings continue to benefit our clients as we improve our ability to offer them attractive service offering in North Africa.

It is the continued and real engagements with the African IP fraternity that sets Adams & Adams apart from its competitors.

Adams & Adams Associate Office, Egypt.

L – R: Nicky Garnett, Mohamed Eldib, Dina Eldib, Mostafa Eissa, and Simon Brown, Associate Office, Egypt.