East African Community (EAC): an intergovernmental organization comprising five East African countries: Burundi, Kenya, Rwanda, Tanzania, and Uganda with its headquarters in Arusha, Tanzania. The last to join are Burundi and Rwanda that became full Members of the Community with effect from 1 July 2007.
EAC Integration process is being carried out in four stages namely the Customs Union, Common Market, Monetary Union and ultimately a Political Federation. The first two steps have already been achieved. A Customs union commenced on January 1, 2005. The Common Market Protocol entered into force on 1st July 2010. EAC has adopted its IP legislation at the time of adoption of the Protocol for Establishment of the East African Community Common Market.
In addition to the free movement of goods; free movement of persons; free movement of workers; the right of establishment; the right of residence; free movement of services; and free movement of capital that have to be progressively implemented, EAC Common Market Protocol, in accordance with the provisions of Articles 76 and 104 of the Treaty, provides for cooperation in areas that are necessary for the effective functioning of the Common Market and maximising the benefits derived there from, among others, intellectual property rights.
The cooperation in intellectual property among EAC Partner states is expressed in article 5(3)(k) and article 43 of the Protocol.
According to article 43:
The Partner States undertake to co‐operate in the field of intellectual property rights to:
(a) promote and protect creativity and innovation for economic, technological, social and cultural development in the Community; and
(b) enhance the protection of intellectual property rights.
2. For the purposes of paragraph 1, the Partner States undertake to cooperate in the following areas:
(a) copyright and related rights;
(b) patents;
(c) layout designs of integrated circuits;
(d) industrial designs;
(e) new plant varieties;
(f) geographical indications;
(g) trade and service marks;
(h) trade secrets;
(i) utility models;
(j) traditional knowledge;
(k) genetic resources;
(l) traditional cultural expressions and folklore; and
(m) any other areas that may be determined by the Partner States.
3. For the purposes of paragraph 1, Partner States shall:
(a) put in place measures to prevent infringement, misuse and abuse of intellectual property rights;
(b) cooperate in fighting piracy and counterfeit activities;
(c) exchange information on matters relating to intellectual property rights;
(d) promote public awareness on intellectual property rights issues;
(e) enhance capacity in intellectual property;
(f) increase dissemination and use of patent documentation as a source of technological information;
(g) adopt common positions in regional and international norm setting in the field of intellectual property; and
(h) put in place intellectual property policies that promote creativity, innovation and development of intellectual capital.
4. The Partner States shall establish mechanisms to ensure:
(a) the legal protection of the traditional cultural expressions, traditional knowledge, genetic resources and national heritage;
(b) the protection and promotion of cultural industries;
(c) the use of protected works for the benefits of the communities in the Partner States ; and
(d) the cooperation in public health, food security, research and technological development.
5. The Council shall issue directives for:
(a) co‐operation in the administration, management and enforcement of intellectual property rights;
(b) the elimination of discriminatory practices in the administration of intellectual property rights amongst Partner States.
6. The Partner States shall honour their commitments in respect of international agreements which relate to intellectual property rights.
Till now, IP rights in EAC Partner states are mainly governed by each Partner state legislation. Protection of IP rights: apply for protection with the relevant IP offices in all member states, or, if applicable, use the African Regional Intellectual Property Organization (ARIPO) or Patent Cooperation Treaty (PCT) systems.
It is hoped that the new EAC Council Directives will create an IP protection system that allows trademarks, copyrights and patents to have effect throughout the community
Concerning the mutual recognition of intellectual property right:
– Partner States have developed a draft EAC Anti-Counterfeit Policy and Bill to be enacted into law that will be enforceable across the entire region;
– Draft EAC Regional Intellectual Property Rights Policy on the utilisation of Public Health related to WTO-TRIPS Flexibilities and Approximation of National Intellectual Property Legislation has been initiated too.
Regarding concerns that may arise after issuance of the Council IP Directives by the Protocol, one may think about the coexistence of a number of protection systems, the question of priority dates, possibility of protection of similar marks, and infringements of EAC IP legislation.
There is protection at national level and through the PCT and ARIPO systems at the moment in EAC Partner States that are members to these agreements. Coming soon, is the proposed EAC IP rights protection system
Concerning the coexistence of such a number of protection systems, this could be seen as an advantage, as rights owners will be in a position to opt for the most cost-effective mode of registration.
The question of claiming the priority for the date of registration in a given EAC country, issues of conversion from national to EAC-level protection will also have to be dealt with in the directives.
IP Kenya 