Friday, 20 October 2017

Darren Olivier

Reflections on the Crammer(TM)

The Glove Initiative
Yesterday I MCed the annual Adams & Adams Crammer event. This event aims to digest a year's worth of IP and commercial legal developments into a single morning through a series of short sharp presentations. It was held at the Radisson in Sandton, part of Africa's richest business square mile. Almost 200 people attended the event, including Afro-IP.

This event showcases a number of the Adams & Adams lawyer's expertise in their respective fields as well as select key note speakers as they bid to keep things short, to the point and relevant. As Mark Twain said "I did not have time to write you a short letter, so I wrote you a long one instead" rings true for punchy presentations, requiring significantly more work to get right. 

I will leave my colleague to write more about the content of this event in a later post. I just wanted to highlight two aspects. 

Michael Charton's My Father's Coat, and the need to be responsible

Guest speaker and renown storyteller Michael Charton provided a moving rendition of his very popular story on the history of South Africa through the eyes of five great men. It is a story so relevant for contemporary South Africa, encapsulating the trauma of our past in an inspiring insight of what unites and divides our country. It brought many to tears and I was speechless at the end, which is not what you want if you are the MC!

The relevance of the talk to IP was what I wanted to reflect on. Yes, the idea of digesting South Africa's rich tapestry of cultures and history into a short talk is a fit for a Crammer event but it is also the responsibility that comes from monopoly power that is evident throughout, not unlike responsibility in an IP right.

Michael draws on stories about Rhodes' dream of extending British power from Cape to Cairo (in a map that looked quite similar to an ARIPO registration), the VOC (which he described as arguably the world's first commercial brand), and Smuts' remarkable international stature and unique respect for his rival Ghandi to convey his tale of sometimes noble intentions that often lead to untold misery and suffering. 

These few stories (and there were more) illustrate that with power and control comes great responsibility. This is no different from say, having a patent over a life saving drug or a trade mark right and knowledge of counterfeiting that involves drug smuggling or dangerous spare parts, or a firm that has market share and the power to employ, yet has a culture of discrimination or poor corporate governance. As Michael's tale so aptly reflects - history will judge you, not on your bottom line or material wealth but your ability to be to be responsible. You may not realise that when you register or audit your IP. 

The Glove Initiative(TM) 

George Scola also attended the event yesterday. George was a national basketball player and is a genuine all round nice guy. He lead a normal, if not enviable, life until one day in his 30s he was struck down with a stroke. The moment he became disabled is encapsulated by him in this clip here. Today he spends his life dedicated to promoting awareness of stroke. He founded South Africa's Stoke Survivor Foundation and is a Director of World Stroke Organisation.

Despite these grand titles, his noble cause and his warm personality, George has significant challenges. He is still suffering from his disability which creates a real challenge to getting around, concentrating for long periods and pursuing the cause. Coupled with that he has an annual budget that does not even reach R40k (less than $3000) and he is competing with causes in South Africa, like Aids, TB and others that get far more awareness, in a society where none of them get enough.

October is stroke awareness month and George has come up with The Glove Initiative to promote his work. This involves placing a turquoise medical glove on one's hand as a reminder not to use it, for a period of time. It will give the person some idea of what it is like to suffer the effects of a debilitating stroke. As those at the Crammer event will have understood; just trying to pin a name badge with one hand is well nigh, impossible. 

“There is urgent need for a campaign like this,” notes George Scola, “as so many misconceptions surround stroke. Some communities still believe stroke is evidence of witchcraft. Others wrongly believe women are immune.” “Awareness is low and information sparse. This must change.”

I would like to encourage everyone to support this initiative. You can do so by simply following  them on twitter @strokesurvivors or the Facebook page Pick up a glove, that is all you need to do but if you want to donate, that would really be appreciated.

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Tuesday, 17 October 2017


Ghana taking strides

Source: Wikipedia
News coming in from Ghana in the past few weeks is that of a country gearing up for modern day innovation and growth with a recognition for robust IP systems.

Airport Expansion
SITA is providing its world-class passenger and baggage processing technology as well as its airport management solutions to Ghana’s new Terminal 3 at Kotoka International Airport in Accra, helping cement the airport’s position as a vital regional hub.

The country’s aviation industry has witnessed significant growth over the past decade due to the discovery of petroleum and gas reserves, sustained domestic demand and the growth of the tourism sector.

When Terminal 3 opens at the end of 2017, it will have six contact stands and two remote stands for long-range aircraft, including Airbus A380s, A330s and Boeing 777s and 787s.

Hotel growth
Marriott International announced a few days ago (Marriott International continues extensive expansion into Africa) that its 160 room Le Meridien Accra, owned by 4-Mac Limited will be strategically located close to the international airport and is scheduled to open in 2021. The hotel marks the debut of Le Meridien brand into Ghana.

Online commerce and digital expansion
A new UN report reveals momentum for digital payments in Ghana could save over GHS 1 billion within next four years. With 37 percent of the value of all payments now made digitally, Ghana is on course to be a leader in the region, with great potential to expand economic opportunities for businesses. Read the full Ghana Diagnostic report here.

It is perhaps no co-incidence then that separate independent releases Ecobank and DHL relate to digital commerce services.

Ecobank just launched their mVisa cashless payment system across 33 African countries using smartphone technology. Ecobank have a presence in Ghana.

DHL Express then announced its partnership with MallforAfrica which will facilitate selling of made-in-Africa products to customers in the United States. Businesses can do so via the eBay platform powered by MallforAfrica. Through this partnership, DHL locations will serve as drop-off points for products destined for consumers in the United States. This will be the first time businesses in Africa can sell their locally manufactured products directly on eBay.

DHL Express currently handles inbound express delivery for MallforAfrica and has enabled its customers importing from the US to receive their packages seamlessly in Nigeria, Kenya, Rwanda and Ghana.

But what about intellectual property and innovation …?
At the 2017 Innovation Prize for Africa event, held in Ghana’s capital Accra, a high-level roundtable discussed how best to support the next generation of innovators and entrepreneurs on the African continent.

The panel included speakers like Ghana’s Minister of Environment, Science, Technology and Innovation Kwabena Frimpong-Boateng, African Innovation Foundation (AIF) founder Jean-Claude Bastos de Morais and Yofi Grant, the CEO of the Ghana Investment Promotion Centre (GIPC).

They highlighted four barriers according to the report:

1. Disconnect from the youth

2. Inharmonious business environment

3. Difficulties securing financing

4. A need for strong intellectual property protection

“…while Bethel [a member of both the AIF Board and UN committee of Experts in Public Administration] agreed the time-to-market approach [the focus on taking a product to market as a prerequisite over anything else including IP protection] may work in some countries, she expressed concern regarding the speed with which many foreign companies can replicate an idea, protect their IP rights and then market it globally.

“So I believe the two really must go hand in hand, I don’t see that the one necessarily dominates the other. And my advice would be to protect your intellectual property.”

See full report here.

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Friday, 13 October 2017

Darren Olivier

LES, Herbex, NIPMO, IP Briefs, the Crammer and Kenya's Copyright developments - Friday ramblings

The Licensing Executives Society of South Africa has a very pleasant and active local membership. This week their one day conference attracted over 50 attendees speaking on topics that  included South Africa’s draft IP Policy, OECD tax regime developments, NIPMO’s dynamic progress under Dr Kerry Faul and the Competition Commission’s foray into the world of compulsory licensing. It is as interesting as it is diverse which is real attraction of the LES local chapter and this year they were joined by LES International President Peter Hess, as well as local President Alessia Del Bianco.

My own involvement was to join Dr Madelein Kleyn in a discussion that traversed new acronyms BEPS and DEMPE in the context of transfer pricing, international tax structures and IP structuring. You might well ask what the heck do you know about that and the answer would be - a lot more now then I did prior to preparing for the discussion. Madelein's editorial in the latest IP Briefs will provide some context to these developments and all I have to say is that if BEPS and DEMPE work effectively there will be no need for current headaches caused by local exchange control in South Africa, a mechanism designed in part to curtail base tax erosion.

Without wanting to single out any presentation, Dr Kerry Faul’s update on NIPMO developments was very heartwarming. As an advocate of both intellectual property and Africa, this national initiative to capture and commercialise innovation of some of the smartest minds in South Africa and use it for social good, job creation and general upliftment was commendable to start with. NIPMO was always going to have its challenges and still does but there is evidence of genuine achievement towards its goals. For this Dr Faul received an award from LES which deserves particular mention and congratulations.

Turning to another initiative that is close to my heart, the Crammer is a concept that attempts to digest a year’s worth of IP developments into a single morning for the benefit of busy in-house counsel, executives and business owners. My firm embraced the idea and now advocates their biggest and boldest Crammer yet next Thursday at the Radisson Sandton (not Gautrain), that I have the pleasure of MCing. You can view the complete agenda in the Watering Hole section here, or just RSVP and view it here. The guest speaker is the excellent Michael Charton who will present My Father’s Coat, a truly inspiring and very relevant South Africa tale. It's nearly full so hurry!

"It’s our biggest and boldest Crammer® yet – presented by Adams & Adams to an exclusive audience of in-house legal representatives, entrepreneurs and executive decision-makers. In focusing on IP, commercial and property law developments, our legal professionals will review interesting updates and commentary on subjects ranging from innovation funding, copyright and brand development, to data protection and a number of significant IP and commercial case law studies."

Another recent development is news that the ASA in South Africa is continuing to progress its resurgence under the watchful eye of acting CEO Gail Schimmel and the loyal Leon Grobler. Emboldened by the order in the much anticipated Herbex case appeal which had threatened to severely curtail the decision making powers of the ASA they are making progress in re-captivating consumer and industry trust as a self regulated watchdog.

The upshot of the Herbex order is that although the ASA is not able to rule against non members it is able to adjudicate on whether any advertising is contrary to its code.  This will enable it members, which are vast ranging and include a number of industry associations embracing media, consumers and broadcasting to elect not to accept advertising which is contrary to the code. For more on the ASA on this blog, click here.

Looking north, Kenya’s Copyright (Amendment) Bill 2017 was recently tabled in parliament for a first reading. It has provisions that seek to update copyright laws with the digital age and information systems, as well as specific benefits for those that are blind, have visual impairments and certain physical disabilities. It also introduces the concept of a resale royalty right. I am hoping that our colleagues in East Africa will provide some commentary on this development in a future posts together with news of the Kenya Copyright Board’s new logo which is the subject of a competition launched by their Department of Justice, with almost $2000 worth of prize money up for grabs.

Have a good weekend!
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Tuesday, 10 October 2017

Afro Leo

Hans Muhlberg and others on the Afro-IP Linkedin platform

If you are a fan of Hans Muhlberg then be sure to follow him over on the Afro-IP Linkedin Group. For the benefit of readers on this platform here are some headlines to his posts over the last few weeks. Enjoy, they are always entertaining and insightful:

There’s been much talk about the Netflix trademark cease-and-desist letter, about how it may actually boost the brand. If you haven’t seen it the best bits follow (for the benefit of readers over 30, Stranger Things is a TV series, Dr Brenner is a more

There’s talk of ‘food apartheid’ in Europe. According to The Guardian, some food products sold in Eastern Europe are of a lower quality than products sold in Western Europe under the same branding. In some cases the differences are so marked that pe.. show more.
Have trademarks ever enjoyed so much media attention? Over the space of a few days we’ve had:
Ridicule at Taylor Swift’s decision to register more lyrics and song titles as trade marks. Last time it was This Sick Beat and Cause we never go out of sty.. show more.

Brexit, so many unexpected consequences. Even within the arcane field of trademarks: what will happen to all those EUTMs that presently cover the UK; more importantly, what will happen to all those UK trademark attorneys who presently cover the EU? .. show more

The Afro-IP Linkedin Group is an open group inviting conversation from all of its 768 members. You can access it here.
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Monday, 9 October 2017


Copyright in databases: The Philanthropic Collection v Girls & Boys Town

TPC logo
Context - IP and social causes

The Philanthropic Collection (TPC) is the company that brought The CEO SleepOut to South Africa in 2015. The event that year raised over R25million (almost $2million) for its beneficiary Girls & Boys Town (GBT). 

The FAQs posted on the CEO SleepOut website records that independent consultancy IQ Business valued the social impact return on investment of the 2015 CEO SleepOut event at 1:1.3.15 (for every Rand invested in the event it delivered R3.15 for social good). For the 2016 event TPC increased this value to 1:4.24.  Like the event or loathe it that's impressive. (For more information on how SROI values work, this Australian report is informative and TPC's initiative compares very favourably indeed.)

From an IP perspective the SROI value of a social initiative like The CEO SleepOut is encapsulated in its trade marks (branding that communicates the initiative), copyright (databases created as a result of the initiative) and knowhow (the skill of companies like TPC to bring it all together). The protection of this SROI and its associated IP are therefore as critical to the general public that donates and derives social benefit from the initiative, as they are to the sustainability of the initiative itself. 

This is why it is not uncommon, indeed critical, for social causes to enforce their IP. In Boston College Law Review Lauren Behr's article entitled Trademarks for the Cure: Why Nonprofits Need Their Own Set of Trademark Rules advocates for greater protection for trade marks in the non-profit sector: 

because the work of these organisations affects the greater public as well as both potential donors and recipients”.

The dispute and the court case

During preparations for the 2017 event, it came to the attention of TPC that GBT had copied the database of donors for the 2015 event and were using it to solicit donations. TPC was obviously concerned because:
  • it felt that such activity would compromise its ability to raise funds for the 2017 event that it was about to launch (ed - to protect the SROI);
  • that the database contained personal information of its donors of which it was the custodian; and 
  • that GBT was in breach of its agreement not to solicit donations using the database, having been warned about this on several previous occasions, according to the papers.
In the circumstances, TPC felt compelled to approach the court for urgent relief on three grounds: copyright infringement, breach of undertaking and unlawful competition.

GBT denied the allegations and argued that it was the co-owner of the copyright in database. Its copyright defence was based on the premise that the 2015 event was in fact a joint venture between it and TPC and/or that because it had helped with certain manual entries on the database from a form completed by some of the donors, it was in fact a co-owner of the copyright in the database. 

The judge agreed that the matter was urgent for TPC and in deciding for TPC felt sufficiently persuaded on the papers and in argument, to dispose of the case on the basis of the copyright claim alone.

The copyright findings

Judge Modiba ruled that GBT’s role as “partner” was simply an expression of TPC when referring to them, as it had done with all of its stakeholders e.g. its media partner, and did not create legal obligations nor a partnership nor a joint venture nor co-ownership of the database. In fact she described the notion as "absurd" (see para 25 of the judgment).

The judge felt that although circumstances required that GBT had both access to the backend of the website used to create the database and was involved in manually entering some of the information not capable of being generated by the website, this was not sufficient to create any rights in the database. She also felt that this was "absurd".

In support of this Judge Modiba quoted the 2016 case of Moneyweb v Media 24 Ltd where it was held that there must be sufficient application of the author’s mind to produce a work that could be judged to be original. The form created by GBT did not meet this  threshold according to the judge. 

The court upheld TPC’s claim and ordered GBT to pay their costs. The judgment of course does not mean that GBT are precluded from contacting donors (including those that were on their own database) it simple means that GBT must not do so using TPC's database.

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