Delimitación del Concepto de Decaimiento del Acto Administrativo en Colombia

ARIPO and OAPI concluded a Cooperation Agreement in 1996 in Harare, Zimbabwe. The agreement was in line with Article V of the Lusaka Agreement which obliges ARIPO to establish, and maintain a close and continuous working relationship with the United Nations Economic Commission for Africa, WIPO and AU.²⁷⁸ The Cooperation Agreement is also supported by Article VI of the Lusaka Agreement²⁷⁹ which empowers ARIPO to cooperate with non-member countries as well as Organisations, institutions and bodies which are willing to assist ARIPO to achieve its objectives.

The objectives of the co-operation agreement are namely:

First, to sensitise and train entrepreneurs and managers in various aspects of IP, particularly the economic and strategic dimensions of IP. The aim of sensitising and training

276 This must be done within five working days: Art 6 (2) of the Agreement Revising the Bangui Agreement of March 2, 1977 on the creation of an African Intellectual Property Organisation (Bangui Agreement), February 24, 1999 available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?doc_id=132882&file_id=181150#P683_34157 (accessed 13 June 2012). See also Adewopo ‘Developments in intellectual property in Africa’ available at www.atrip.org/.../Adewopo%20Dev.%20of%20IP%20in%20Africa.doc (accessed 13 June 2011).

277 Article 8 of the Agreement Revising the Bangui Agreement of March 2, 1977 on the creation of an African Intellectual Property Organisation (Bangui Agreement), February 24, 1999, Annexure III deals with trade marks and service marks.

278 Lusaka Agreement on the Creation of the African Regional Intellectual Property Organization available at http://aripo.org/index.php?option=com_docman&task=doc_download&gid=3&Itemid=11 (accessed 2 November 2011). See also WIPO Resources ‘IP Regional Treaties: Lusaka Agreement on the Creation of the African Regional Intellectual Property Organisation (ARIPO)’ available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?doc_id=129114&file_id=181199 (accessed 24 October 2011).

279 Lusaka Agreement on the Creation of the African Regional Intellectual Property Organization available at http://aripo.org/index.php?option=com_docman&task=doc_download&gid=3&Itemid=11 (accessed 2 November 2011). See also WIPO Resources ‘IP Regional Treaties: Lusaka Agreement on the Creation of the African Regional Intellectual Property Organization (ARIPO)’ available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?doc_id=129114&file_id=181199 (accessed 24 October 2011).

entrepreneurs and managers is to ensure that they remain competitive and are able to gain access to new ideas and technologies.²⁸⁰

Second objective is to train institutional agents and officials in various aspects of IP protection, and the prevention of counterfeiting. Counterfeiting²⁸¹ has become so prevalent in Africa that measures to counteract it need to be implemented.²⁸² The sale and production of counterfeit goods results in huge economic loss to IP holders and it denies them of their income.²⁸³ Technological advances have made counterfeiting much easier;²⁸⁴ a trade mark, for instance, can be easily reproduced by modern printing techniques and can be affixed to a copy of the product that is so similar to the genuine item that a consumer cannot easily differentiate between them.²⁸⁵ The effect of counterfeiting on one hand is that, it makes it difficult for multinational companies to control the image of their brand.²⁸⁶ On the other hand counterfeiting results in social and political harm especially to developing countries where the bulk of counterfeiting occurs. Counterfeiting and piracy, therefore, adversely affect the economy, its citizens and its consumers.²⁸⁷

280 WIPO ‘Permanent Committee on Cooperation for Development Related to Intellectual Property: WIPO’S Programme of Assistance to Least Developed Countries’ (October 28 to November 1, 2002) Third Session Geneva available at http://www.un.org/special-rep/ohrlls/ohrlls/wipo%20implementation.pdf (accessed 2 November 2011).

281 Counterfeiting of IP for example trade marks refers to the unauthorised reproduction of the trade mark:

Paradise Trade mark counterfeiting, product piracy and the billion dollar threat to the US economy (1999) 1. Bian & Moutinho further clarify that ‘counterfeit products are those bearing a trade mark that is identical to, or indistinguishable from, a trade mark registered to another party and infringe the rights of the holder of the trade mark’. See also Bian & Moutinho ‘The role of brand image, product involvement, and knowledge in explaining consumer purchase behaviour of counterfeits’ (2011) 45 European Journal of Marketing 191.

282 These involve both civil remedies and criminal sanctions. See Whitby ‘Africa ‘dumping ground’ for counterfeit goods’ BBC World News (13 January 2010) available at

http://news.bbc.co.uk/2/hi/africa/8424403.stm (accessed 7 may 2012).

283 The share of counterfeit and pirated goods in world trade is also estimated to have increased from 1.85% in 2000 to 1.95% in 2007: see Organisation for Economic Co-operation Development (OECD) ‘Magnitude of counterfeiting and piracy of tangible products- November 2009 update available at

http://www.oecd.org/document/23/0,3746,en_2649_34173_44088983_1_1_1_1,00&&en-USS_01DBC.html (accessed 15 June 2012).

284 Tomlinson ‘Intellectual Property in the Digital Age: The Piracy/Counterfeiting Problem and Antipiracy and Anti-counterfeiting Measures’ (1999) 8 Currents Int’l Trade L.J 3, hereafter Tomlinson (1999) 8 Currents Int’l Trade L. See also Paradise Trade mark counterfeiting, product piracy and the billion dollar threat to the US economy (1999) 23 and Sachdecha ‘Thailand-World Trade mark Review’ (2009) 187 available at http://www.worldtrade markreview.com/issues/article.ashx? (accessed 7 May 2012).

284 Tomlinson (1999) 8 Currents Int’l Trade L.J 3.

284 Cho ‘Counterfeiting as an externality imposed by Multinational Companies on developing countries’ (2011) Virginia Journal of International Law 787, hereafter Chow (2011) Virginia Journal of International Law.

285 Tomlinson (1999) 8 Currents Int’l Trade L.J 3.

286 The brand forms part of the assets and the business goodwill; it therefore has economic value: Chow (2011) Virginia Journal of International Law 787.

287 Godart (2010) 5 Journal of Intellectual Property Law and Practice 379.

Thirdly, developing joint training programmes, exchanging trainers in the form of cross-participation in training sessions of each other’s training programmes and cross-participation in the sessions of the training of trainers’ programmes.²⁸⁸ Such training must be coupled with technical cooperation with the aim of mutually benefitting the two Organisations whether directly or indirectly.

The preceding discussion shows that the Cooperation Agreement between ARIPO and OAPI of 1961 is aimed at fostering close cooperation between the two Organisations. The objectives highlight the scope of cooperation between the two Organisations. The objectives focus largely on exchanging information, expertise as well as carrying out joint projects. It is clear that the level of cooperation is limited, superficial and ‘falls short of expectations’.²⁸⁹ One of the shortcomings of the Cooperation Agreement is that it fails to deal with concrete issues that have far-reaching effect in protecting trade marks, such as merging the laws of the Organisations and having regional common goals.

The Cooperation Agreement does not make it clear whether ARIPO and OAPI intend to amalgamate. There is also no indication of an intention to foster a close working relationship in the protection of trade marks and other forms of IP. The reason for maintaining a divide between the two institutions seems to be due to their cultural and political backgrounds.²⁹⁰ Although it has been pointed out that the harmonisation of laws of the two Organisations has been a challenge,²⁹¹ it is argued that the Cooperation Agreement should have specifically included the objective of harmonising the two systems and their laws. The two Organisations

288 Co-operation and collaboration in training programmes promotes growth and exchange of ideas especially following the expansion in IP rights heralded by TRIPS: Helfer ‘Regime shifting: The TRIPS Agreement and new dynamics of international intellectual property lawmaking’ (2004) 29 Yale Journal of International Law 23.

289 Adewopo ‘Developments in intellectual property in Africa’ available at

www.atrip.org/.../Adewopo%20Dev.%20of%20IP%20in%20Africa.doc (accessed 13 June 2011).

290 Arowolo ‘A continental approach to protecting traditional knowledge systems and related resources in Africa’ (2009) available on Social Science Research Network at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1313582 (accessed 20 July 2011).

291 In an interview with Intellectual Property Watch concerning the establishment of a new IP organisation, ARIPO’s former director General Sibanda pointed out that ‘the two regional organisations for some time now have been in the process of trying to harmonise their laws and they have a clear understanding on some of the problems associated with the development of such an organisation’. The interview was done in November 2007 and it shows some scepticism about the new IP Organisation which arises from the

challenges that ARIPO and OAPI have faced in relation to a possible merger. The pessimism is unnecessary.

What the Organisation needs is to learn from the ARIPO and OAPI system, choose the most preferred system and to build upon what has already been done: Gerhardsen ‘Concerns arises over proposed Pan-African IP Organisation’ Intellectual Property Watch available at

http://www.ip-watch.org/weblog/2007/08/30/concern-arises-over-proposed-pan-african-ip-organisation/ (accessed 14 August 2011).

should have set in motion a concrete plan to gradually move towards a merger and possible harmonisation of their operations and/or harmonisation of IP laws of Member States. It is also argued that the difficulties that have been experienced in an attempt to harmonise the IP systems arose due to the absence of an empowering Agreement.