Besides Cameroon which in addition hosts the headquarters of this organisation, its jurisdiction also covers most of French speaking countries of West Africa and all of Central Africa.
All the activities of the "OAPI" are co-ordinated from Yaounde its headquarters in accordance with the 1972 Bangui Accord.
All of the 14 member states of the "OAPI" are French speaking with the exception of Cameroon that is bilingual (English and French). This thus accounts for the French language being the official language of the organisation. Most of "OAPI"'s publications are in French and there exist at the moment no translation structure at the headquarters in Yaounde.
1. COMPETENCE OF THE "OAPI"
The organisation's competence covers Industrial property as well as literary and artistic property, hence the nomenclature "Intellectual Property".
A. Industrial property
The "OAPI" is charged with the application of common administrative procedures for the obtention and safeguard of Industrial property rights. This role is based on a uniform legislation relating to invention titles (Brevet d'Invention) marks of products and/or services, industrial designs, business names, unfair competition, original appellations and slogans.
Furthermore, the "OAPI" renders services relating to Industrial property notably, the documentation and information concerning invention marks it envisages to put at the disposal of member states for its eventual exploitation for technical and industrial development objectives.
B. Literary and artistic property
In this regard, the "OAPI" plays a triple role.
It sensitises member states and their nationals on the necessity to ensure the protection of literary and artistic property.
2. DURATION AND RENEWAL OF TRADE
The duration of protection offered varies according to the object protected.
Trademarks are valid for a duration of 10 years meanwhile the property in it can be indefinately preserved through successive renewals effected after every 10 years. This equally holds true for business names.
The minimum duration for designs is 5 years but capable of being extended to 15 years each. All taxes must however be paid.
As concerns original appellations, the duration of protection is unspecified, the "modele d'utilite" has a minimum duration of 5 years which can be extended to 8 years. In this case, the payment of taxes is mandatory and exploitation is required.
Rights conferred
The effect of registration of a trade mark is the conferment of a right notably, rights of exclusive exploitation whether individual or collective as the case may be. Consequently the beneficiaries can always prohibit any undue exploitation by instituting an action for imitation (Contre facon) see SS 201-209, 212-214 and S 315 of the Cameroon Penal Code.
3. DURATION AND LAPSE OF A PATENT
The normal and minimum duration for the validity of a patent is 10 years but which may be extended to 20 years through two prolongation's of 5 years each. The payment of taxes annually is imperative and exploitation of the tights is necessary.
It should be noted that simply obtaining the granting of a patent is not enough. Maintenance of the acquired rights depends upon the effective use of the patent.
Rights Conferred by a Patent
As is the case with the trademarks, a patent confers a tight of exclusive exploitation of the invention. The patentee obtains the right to preclude others from the act of making, importing, selling or using the product where the patent is in respect of a product.
Where it is in respect of a process, others are precluded from the act of applying the process.
Such tights extend only to acts done for industrial and commercial purposes and the scope of protection is determined by the terms of the claims as interpreted in the context of the specification.
4. "OAPI" CHARGES FOR REGISTRATION OF TRADEMARKS AND PATENTS
The submission of application and bromide for registration of an intellectual property does not suffice for the granting and/or obtention of same. The "OAPI" has certain financial obligations that must be complied with before the granting and exploitation of a Trademark and patent right. "OAPI" charges vary with the different classes of marks and the nature of protection an applicant intends to obtain. If an application for a mark or patent is not finally granted, the applicant is entitled to all the charges already paid.
However the sum of 100.000 FCFA is retained by the organisation.
The following is an approximate but indicative current "OAPI" tariffs for the registration of trade marks and patents.
TRADEMARKS FCFA US$ Preparing and filing application for a trade mark 249.000 498 Renewal of a mark 345.000 690 Supplementary penalty for overdue renewal 112.50 225 Fee per class for all renewals 78.000 156 Claiming convention priority (per claim) 54.000 108 Rectification of errors on forms (before publication: * For first error 34.000 69 * For each other error 15.000 30 Rectification of errors (after publication) 40.500 81 Searches Agents search on the Registrability of a single mark 51.000 102 Publication in special trademark register and assimilated transactions 234.000 468 PATENTS Preparing and filing a patent of Invention covering 1st year 198.375 397 Application for a certificate 253.575 507 Filing a priority claim (per claim) 55.200 110 Publication of a patent 322.575 645 Supplementary tariff for publication beyond 10 years 30.675 61 Patent drawings according to number of forms or boards: * From 11 - 20 typed pages or A4 format boards 96.600 193 From 21 - 30 typed pages or A4 format boards 156.975 313 From 31 - 40 typed pages or A4 format boards and soon at 208.725 417 a rate of 40.500 FCFA for every additional page Modification or rectification of errors: * For the first modification or errors 34.500 69 * For each subsequent modification 17.250 34 Maintenance of Patents of Invention: 2nd to 5th annuities (per year) 193.200 386 6th to 10th annuities (per year) 322.575 645 Penalties for late payment of annuities 60.000 120 Special patent register: Entry into the special patent register 232.675 456 Delivery of a declaration mentioning that there exist no other such patent 51.750 104 MISCELLANEOUS Obtention of copies of patents: * Up to 10 pages 51.750 104 * Each page in excess of 10 10.350 21 Searches 69.000 138 Rundown of payments 17.250 35 DESIGNS Application to register a design in one class 11.000 22 Priority claim (per class) 3.500 7 The same design is filed simultaneously in the same class 5.000 10 The same design is filed in different classes 10.000 20 Where different designs are filed simultaneously in the same class from second application onwards 45.000 90 Application to file in specimens 25.000 50 Classification/Registration (per design) 35.000 70 Late renewal (overdue) 100.000 200 Transfers/Cessions/Concession/Struck off per class 80.000 160 Rectification of errors: * 1st error 2.000 4 Late filing of documents 100.000 200 Searches 51.000 102 Renewals 300.000 600 Priority claim 300.000 600 Recording into the special register of designs 300.000 600 Application to register or renew a commercial name 135.000 270 Authenticated abstract of the register of commercial names 5.000 10 Deliverance of an identity certificate 9.000 18 Construction of constitutive documents 5.000 10 Correction of errors on application 3.000 6
5. "OAPI" AND CONSUMERS PROTECTION
In respect of local legislation governing consumer protection ensures same through the institution of a search form which is issued upon application for registration of a trademark and/or patent. The search form contains the name of the mark and/or patent sought, the class and its specimen. The search which is conducted on the register is to ensure that the mark or patent is not deceptive, dangerous or scandalous.
If search findings prove that the mark is defective and dangerous to the public, granting of same is disallowed.
6. DISPUTE RESOLUTION
A. Arbitration
Whereas the world intellectual property organisation (WIPO) recently provided its arbitration centre as a service for the resolution of international intellectual property disputes, the "OAPI" has so far remained silent as to the very essence of such a structure.
The reason for lack of an arbitration structure could be attributed to the uniformity in linguistic, business culture and legal system that member states enjoy unlike the WIPO which is characterised by divergent linguistic, cultural and legal system.
B. "OAPI"s Competent Jurisdiction: Local Tribunals
According to the "OAPI" regulations, the competent court for dispute resolution remains the national (local) courts of each member state both as regards the appreciation of the threat posed to the tights in question as well as in the determination of the validity of the protection itself. In Cameroon, the competent court is either the High Court or the court of first instance depending on the amount claimed (see 1972 Judicial Organisation ordinance as modified by Law No 89119 of 29 December 1989).
Concerning decisions rejecting registration by the Director General of "OAPI", appeals lie to an administration jurisdiction of international character, sitting at the headquarters of the organisation. This international jurisdiction is called "Commission Superieure des Recours" as provided for in article 16 of the Accord setting up the "OAPI".
Appeal fee is 270.000FCFA. If an application for a grant of either a patent or trademark is finally rejected, the applicant is reimbursed all the sum paid in respect of such application with the exception of the following sums retained by the organisation 249.000FCFA for trademark,11.000FCFA for designs and 253.375FCFA for patent. The Penal Code of Cameroon in its sections 201, 209, 212, 214 and 315 sanctions both criminally and civilly the offence of Imitation of Patent (La contre facon).
The 33rd ordinary session of the board of administration of the "OAPI" has been summoned for 27May 1996 to deliberate on policies governing the organisation. It is therefore recommended that specific advice be sought on "OAPI" after June 1996 before any action is taken.
NOTE: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought for specifics.
For further information contact Mr Nico Halle, Tel: +237 42 64 79 or Fax: +237 43 26 34 or enter text search 'Nico Halle Law Firm' and 'Mondaq Business Briefing'.
