Ejecución forzosa

The ARIPO Banjul Protocol establishes a centralised system for complying with the administrative formalities such as filing, publication and registration. The advantage of centralisation is that it offers an opportunity for cost-efficiency, which can benefit both trade mark owners and national offices; especially given that resources are usually limited.²¹⁴ It is worth noting that the ARIPO system does not also replace Member States national systems but rather coexists with them.²¹⁵ The national offices may, therefore, still process applications and oppositions, cancellations as well as infringements. The exception is, however, that the ARIPO Office is responsible for renewals and assignments.²¹⁶ ARIPO undertakes the formal examination while the designated Member States are responsible for substantive examination.

non-use or any other grounds. Where registration has been cancelled, the Contracting State concerned shall, within one month of cancellation, notify the ARIPO Office. The ARIPO Office shall publish this fact in the Marks Journal and record it in the Register: see s 8.1 & 8.2 of the Banjul Protocol. See also Kongolo African contributions 80.

211 Kongolo African contributions 80.

212 Section 7 (1) of the Banjul Protocol available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?doc_id=129112&file_id=181205 (accessed 2 May 2012).

213 Section 7 (2) of the Banjul Protocol and Rule 12.1 of the Regulations for implementing the Banjul Protocol (Adopted by the Administrative Council at Kariba, Zimbabwe on November 24, 1995 and last amended by the Council of Ministers on August 13, 2004). ARIPO ‘Banjul Protocol on Marks Regulations for African Regional Intellectual Property Organisation’ available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=181207 (accessed 24 October 2011).

214 International Trade mark Association ‘Adherence to the ARIPO Banjul Protocol’ (May 2000) available at http://www.inta.org/Advocacy/Pages/AdherencetotheARIPOBanjulProtocol.aspx (accessed 13 June 2012).

215 Kongolo African contributions 76.

216 Section 7(2) of the Banjul Protocol and Rule 12 of the Regulations for implementing the Banjul Protocol (Adopted by the Administrative Council at Kariba, Zimbabwe on November 24, 1995 and last amended by the Council of Ministers on August 13, 2004). See ARIPO ‘Banjul Protocol on Marks Regulations for African Regional Intellectual Property Organisation’ available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=181207 (accessed 24 October 2011). See also  

In summary, the Banjul Protocol under the ARIPO system is consequently supposed to facilitate a quick, affordable and efficient registration of trade marks.

The Banjul Protocol has, however, only been ratified by 9 by Member States.²¹⁷ The reason that was given for the failure to ratify the Protocol was the fee structure. Some national offices were charging their application fees in US dollars whilst the ARIPO fees were being charged in Zimbabwean dollars. The national office as a result would acquire considerably more from the application fees when they charge in US dollars as compared to the Zimbabwean dollar. For these countries the fee structure under the Banjul Protocol was not beneficial to them as Member States. Since the amendment of the Protocol in 2004, the fee structure has been in US dollars.²¹⁸ Despite the change in the currency that is imposed for fees, ARIPO Member States appear reluctant to ratify the Protocol²¹⁹

It has been argued that the Banjul Protocol has not delivered on expectations.²²⁰ A study conducted by International Trade mark Association (INTA) at the request of ARIPO found that there are areas of disparities in the national laws that may cause difficulties in the operation of the Banjul Protocol.²²¹ It was, therefore, recommended that ARIPO should address such discrepancies in order to create initiatives on the modernisation and harmonisation of trade mark laws in the Member States as well as making the Banjul

s 7 (2) of the Banjul Protocol available at

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?doc_id=129112&file_id=181205 (accessed 2 May 2012).

217 ARIPO ‘Legal framework: The ARIPO Protocols’ available at

http://aripo.org/index.php?option=com_content&view=article&id=18&Itemid=55 (accessed 13 June 2012).

218 ARIPO ‘Banjul Protocol on Marks Regulations for African Regional Intellectual Property Organisation’

available at http://www.aripo.org/index.php?option=com_docman&task=doc_download&gid=5&Itemid=11 (accessed 24 October 2011).

219 The 9 Member States that have ratified or acceded to the Protocol are Botswana, Lesotho, Liberia, Malawi, Namibia, Swaziland, Uganda, Tanzania and Zimbabwe. See ARIPO Thirteenth session: Proposal for the review of the Banjul Protocol’ held by the Council of Ministers in Accra, Ghana on 1 & 2 December 2011 available at

http://www.aripo.org/index.php?option=com_docman&task=doc_download&gid=85&Itemid=30 (accessed 4 June 2012).

220 In 2010, 49 applications were only registered as compared to the 104 applications which were registered in 2009. A limited number of trade marks applications have thus been filed with the result that the Organisation and the Member States have not been able to receive substantial income.

221 The disparities were for example in terms of substantive examination which is left for the designated states.

While some states carry out examination on absolute and relative grounds, Burundi does not carry out absolute or relative examination and Lesotho does not examine an application on relative grounds. Some countries register a design that has acquired distinctiveness whilst others like Ghana and Swaziland do not register. See Report from International Trade mark Association ‘Results of the ARIPO Trade mark questionnaire’ attached to the Thirteenth session: Proposal for the review of the Banjul Protocol’ held by the Council of Ministers in Accra, Ghana on 1 & 2 December 2011 available at

http://www.aripo.org/index.php?option=com_docman&task=doc_download&gid=85&Itemid=30 (accessed 4 June 2012).

Protocol effective in operation. The discrepancies in the laws of ARIPO’s Member States indicate that national laws have not been harmonised with the Banjul Protocol despite harmonisation being a stated objective of ARIPO.²²²

Why has it taken long to achieve the objective of harmonising the laws? Some of the possible reasons are as follows: ARIPO has not provided an attractive and effective mechanism for distributing fees.²²³ ARIPO does not appear to have taken rigorous steps to encourage Member States to urgently ratify the Protocol. The provisions of the Banjul Protocol have not been domesticated and the laws in the Member States are neither uniform nor harmonised. There are also a number of general challenges ARIPO and its Member States face: limited resources to undertake its objectives and programs; lack of national and institutional IP policies; limited knowledge and information relating to IP in the national offices and among the citizens of the Member States; limited communication infrastructure and also perceptions that IP is too cumbersome and is thus for the developed countries.²²⁴ The problem of limited resources affecting ARIPO can be overcome by simplifying the filing procedure and making the cost for registration affordable. Member States will also require capacity building and educational programs to create awareness to correct the misperception within some Member States that IP is a matter for developed countries.

In the preceding section we discussed the objectives of ARIPO, the provisions of the Banjul Protocol and the characteristics of the ARIPO system. This part showed that ARIPO adopted the harmonisation approach to legal integration. The next part analyses OAPI’s background, objectives, its membership and the characteristics of the OAPI system. The objective is to assess the Organisation’s procedural and substantive aspects to IP protection as well as trade mark protection. It is also necessary to analyse the OAPI system as a model for the unification of laws. Unification is related to harmonisation in that they are both components

222 A comprehensive discussion of harmonisation is presented in chapter 2 part 2.6.

223 International Trade mark Association (INTA) ‘President addresses ARIPO Council of Ministers’ (September 15 2004) available at

http://www.inta.org/INTABulletin/Pages/INTAPresidentAddressesARIPOCouncilofMinisters.aspx (accessed 4 June 2012).

224These challenges were raised by the ARIPO Director General Sibanda at WIPO Global symposium on intellectual property authorities- Developing global intellectual property infrastructure for promoting innovation and branding worldwide held in Geneva Switzerland on 17-18 September 2009. The theme was

‘Infrastructure for better management of IP assets: Public and private parternerships, universities and industries collaboration, and international, sub-regional and regional collaboration’ available at

http://www.wipo.int/export/sites/www/meetings/en/2009/sym_ip_auth/presentations/gift_sibanda_a.ppt (accessed 4 June 2012).

of legal integration.²²⁵ The main issue is whether the proposed regional IP Organisation (PAIPO) should harmonise or unify the laws of the Member States in its pursuit to facilitate the AU’s goal for regional integration.

It should be noted that the provisions of Bangui Agreement will only be discussed in chapter four to avoid repetition since it is the same law that applies in Cameroon.