Last year, Organisation Africaine de la Propriété Intellectuelle (OAPI) published a notice on its website stating that a group of unnamed persons calling themselves “Collectif des Conseils en propriété industrielle” were leading a public campaign opposing OAPI’s accession to the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. Recently, OAPI published two notices here and here informing the public that two OAPI Agents, Christian Djomga and Judith Fezeu Tchimmoe along with all other representatives from their firm, Cabinet Isis, have been provisionally suspended. In addition to several alleged violations of OAPI rules, OAPI claims that Djomga and Fezeu are involved in the Collectif’s campaign against OAPI joining Madrid.
Intellectual property (IP) observers will be keenly following this on-going matter between OAPI and the Collectif with at least three main questions in mind. Firstly, how will OAPI member states react to the Collectif’s campaign? Secondly, what will be the fate of the agents implicated in the Collectif and it’s campaign? Thirdly, how will the outcome from this saga between the Collectif and OAPI affect relations between agents and IP offices in other African countries?
At the core of the Collectif’s campaign is the assertion that OAPI’s accession to Madrid was illegal because OAPI’s Administrative Council purported to ‘accede’ to the Madrid Protocol by way of the so-called Resolution N° 53/25 of December 14th 2013 and establish Regulations Relating to the International Registrations of Marks. Furthermore, the Collectif claims that OAPI’s accession negatively affects certain economic and strategic interests of OAPI member states in addition to reducing the amount of billable work for OAPI agents.
In reply, OAPI maintains that the Bangui Agreement, which establishes OAPI, envisages that OAPI will one day accede to international systems for the protection of various types of industrial property, including marks under the Madrid System. In addition, OAPI asserts that as an international governmental organisation, it fulfils the two conditions necessary for accession to Madrid, namely that at least one of its member states is a contracting party to the Paris Convention and that it has a regional office for registration of marks within its regional territory. Finally, in acceding to Madrid, OAPI likens its move to that of the European Union.
In this connection, OAPI contends that its member states cannot individually accede to the Madrid System because they do not meet the condition requiring a national office for registration of marks within their respective territories. Readers may already know that the only way of getting a trade mark registration in any OAPI country is through OAPI directly, which automatically covers all the OAPI member countries because these countries do not have national registration systems of their own.
As we wait to see which interpretation of the Bangui Agreement will prevail, another important issue that arises is the regulatory relationship between IP offices and their accredited agents. In the case of Djomga and Fezeu, the decision by OAPI Director General to provisionally suspend them appears to be within OAPI’s rules for agents known as “Reglement sur la profession de mandataire aupres de l’OAPI”. Articles 34-37 set out the disciplinary sanctions applicable to agents or firms who breach OAPI rules. These articles also empower the Director General to take any conservatory measures where an agent is suspected to have breached OAPI rules likely to taint the image of OAPI. It is noteworthy that Article 38 requires that due process is followed before any sanction is imposed on an agent or firm.
Like many readers, this blogger was first acquainted with Djomga through his writings on the Afro-IP Blog where he is still listed among the contributors. In fact Djomga’s public stance against OAPI may be no different from numerous posts on this blog speaking out against the IP offices in Kenya. However, this blogger strongly believes his freedom of expression and freedom of association ought not be curtailed merely by virtue of being an agent admitted to practice before the industrial property office. That said, the Managing Director of Kenya Industrial Property Institute (KIPI) appears to be as powerful as the OAPI Director General in matters of regulating conduct of agents. In Kenya, the relevant provision reads as follows:
“The Managing Director may revoke a person’s admission to practice before the Institute if:
(a) the person has been convicted of an offence under any Act; or
(b) the person has been found to be guilty of misconduct by a competent authority”
However, unlike the OAPI rules, the Regulations do not provide a range of disciplinary sanctions which means that affected agents in Kenya will automatically be subject to the most drastic punishment even when a less drastic punishment such as a warning or temporary suspension would have sufficed. In addition, the Regulations in Kenya do not have any due process safeguards for agents or in-built right of review or appeal mechanisms.