The real problem of fakes in Africa: enabling factors and advice to rights holders

The authors

• Marius Schneider heads IPvocate Africa, a boutique law firm specialized in protecting, managing and enforcing IP rights in Africa. Vanessa Ferguson is the founder of Ferguson Attorneys and a South African qualified trade mark practitioner, specializing in IP protection and enforcement throughout Africa. Nora Ho Tu Nam is a lawyer at IPvocate Africa. She holds a doctorate in law from the University of Pretoria.

This article

• With unprecedented economic growth and the emergence of a previously untapped upper and middle class, Africa has caught the attention of numerous rights holders. Many—including infringers—want to enter this promising market.

• Based on the practical experience of the authors and buttressed by official sources and statistics, this article sets out the factors which enable counterfeiting and piracy in Africa. Going beyond the usual argument of corruption of the enforcement authorities, the article also discusses free trade zones, landlocked countries and trade links between Africa and China amongst others. While the situation may seem particularly daunting, numerous improvements are taking place on the ground. The article explains the various initiatives taken by African states to protect IP rights and the growing awareness of the value of IP rights on the continent.

• The aim behind this article is to provide rights holders, their legal advisers and anyone involved in the enforcement of IP rights in Africa with a thorough understanding of IP enforcement in Africa and of the possible solutions. Hence, the article ends with practical advice to rights holders and highlights solutions for the benefit of their brand and consumers.

1. Introduction

Africa is rising: its growing middle and upper class represent an untapped, dynamic, fast-moving and competitive market that businesses can scarcely ignore. Household consumption in Africa has increased faster than the continent’s gross domestic product (GDP), which itself has consistently outpaced the global average. Consumer expenditure is growing at a compound annual rate of 3.9 per cent since 2010, from US$1.4 trillion in 2015 to an expected US$2.5 trillion by 2030. If one adds in the importance of brand recognition to African buyers, the young and growing population, the rapid urbanization and the spread of Internet and mobile phones on the continent, Africa’s emerging economies present exciting opportunities for rights holders.¹ Brand owners are increasingly paying attention to this new African dynamic and have started to invest into African markets with products and services, retail stores and ever higher marketing budgets.

These increasing commercial opportunities in Africa have attracted the attention not only of legitimate businesses but also of counterfeiters and unscrupulous traders seeking to take advantage of these new opportunities. Fakes are a real problem in Africa. Counterfeit medicines, alcohol and cigarettes, together with pirated music, films and software are easily accessible to consumers. According to World Health Organization (WHO) statistics, 42 per cent of detected cases of substandard or falsified pharmaceuticals occur in Africa—this is more than on any other continent.² In Uganda in 2015, illicit including counterfeit alcohol accounted for 61 per cent of the total alcohol consumed in the country. In 2014 in Mozambique and Cameroon, the figure was 66 per cent and 56 per cent, respectively.³ In Kenya, counterfeits represent up to 5 per cent of the product sales of the tobacco industry with a value of US$90 million.⁴ These are only the tip of the iceberg: counterfeiting extends beyond these products and concerns industries as diverse as apparel, vehicle spare parts, electronics, household appliances, luxury goods and fast-moving consumer goods such as food products, toiletries and beverages. In Morocco, where counterfeits are also produced, counterfeit goods represent more than 1 per cent of the country’s GDP worth US$1.27 billion.⁵

2. Factors enabling counterfeiting in Africa

There are several factors that enable the availability of counterfeit and pirated goods in Africa.

2.1 Porous borders

Although there are established formal border controls and crossings, many of the borders in Africa are unfenced or without barriers. South Africa, for example, has nearly 5000 kilometres of land borders with Botswana, Lesotho, Mozambique, Namibia, Swaziland and Zimbabwe, without any continuous barrier.⁶ This fact, coupled with small armies and poorly funded police forces, makes it difficult to manage and control borders effectively and it fuels counterfeiting and piracy.

Cross-border regions suffering from insecurity are also highly susceptible to counterfeit trade. By way of illustration, counterfeit goods enter the Cameroonian market mainly through the border region between Nigeria and Cameroon, a highly insecure zone victim of regular terrorist activities, from where they are later distributed throughout the region. In 2015 in the Central African Republic (Centrafrique), the Director General of Customs and Excise stated that only a quarter of the Central African Republic territory was accessible to customs, while the rest of the territory was under the control of armed groups which were collecting taxes.⁷

The nature of a country’s geography adds to the difficulty in controlling its borders. For example, in Mauritania, the difficulty of systematically and efficiently controlling the borders of such a vast country with a low population density is exacerbated by the desertic environment and security issues faced due to a dangerous mix of terrorists and rebels.

In addition, out of the 54 countries in Africa, 16 are landlocked with no direct access to the ocean,⁸ making these countries primarily reliant on the ports of neighbouring territories as a source of imported goods. A growing phenomenon is diverting consignments in order to avoid customs inspections and controls. The goods are disguised as being destined for a landlocked country or neighbouring territory and then rerouted to the main markets in the transit country. These goods are not inspected as they are considered as goods in transit. This is a common practice in East Africa, where goods arrive at Mombasa port in Kenya, are disguised as destined for the Democratic Republic of Congo (DRC), and then re-routed to markets in Kenya, Uganda and Tanzania.⁹ Similarly, in Southern Africa, goods destined for the local South African market, are re-routed to neighbouring ports, such as Maputo port in Mozambique and Walvis Bay in Namibia, or other neighbouring landlocked territories, such as Zimbabwe, in order to avoid customs detection and intervention at the South African ports of entry.

One can easily imagine that the problems associated with porous borders will be accentuated with the entry into force of the Africa Continental Free Trade Area, which will be the world's largest free trade area by number of countries once it is fully up and running.¹⁰

2.2 Corruption and bribery

Widespread corruption in Africa makes borders porous and difficult to control, fuelling the entry into the continent of counterfeit goods. In some African countries, Customs is viewed by citizens as one of the most corrupt government institutions and many companies prefer not to cooperate with Customs in the fight against counterfeiting because they fear that cooperating with Customs may impact their legitimate business. In Centrafrique, the level of corruption within Customs was such that it led to its dissolution in 2006 and a new structure was defined for customs administration only in February 2007. A 2007 study looking at corruption of customs officials at transit points along the northern corridor in Kenya, Uganda, Tanzania, Rwanda, Burundi and the DRC found that incidence of corruption ranged from 15 per cent in Kenya to 59 per cent in Tanzania, while, as a whole, 28 per cent of all shipments were subject to bribery, with the value of the bribe based on consignment value.¹¹ While recollection of corruption incidents may seem anecdotal, the impact of corruption can be valued in millions of dollars. In 2000, an internal study on Customs conducted by the Minister of Finance of Benin valued direct corruption by customs agents and the resulting fraud to 50–60 billion FCFA per month.¹²

There is a direct link between high levels of corruption and increased counterfeit trade. According to a 2018 report of the EUIPO, high levels of corruption and poor IP rights enforcement are crucial factors for trade in fakes, multiplying the effects of free-trade zones and other trade facilitation policies.¹³ The link between corruption and counterfeits, however, extends beyond customs officials, potentially including other public officials as well as various actors in the supply and distribution chain. The issuance of false work permits or company registration certificates allows organized criminal groups and actors to establish legitimate businesses, so as to avoid detection. In Uganda, PvoC (Pre-export verification of Conformity) certificates were introduced by the government deliberately to curb the high rate of sub-standard products that had flooded the Ugandan market. However, in some instances the issuance of fake Certificates of Conformity by PvoC service providers has been identified as an area of concern.¹⁴

2.3 Limited resources available to enforcement agencies

The fight against counterfeits requires constant investment in the enforcement agencies, be it for training, salaries and infrastructure such as offices, vehicles and access to other appropriate equipment. The poor economic situation and at times the disinterest of the government in many African countries have led to Customs agencies, the police, and other enforcement agencies being under-resourced. In Centrafrique, Customs is under-resourced to the point that those who require its services are often invited to provide the financial means necessary to obtain paper, petrol and the motivation of the public official.¹⁵ In Cameroon, the lack of financial resources to track down both counterfeit products and suspected infringers was highlighted as one of the difficulties in the fight against counterfeited goods.¹⁶ These are only two illustrations of a widespread problem on the continent: in order to obtain support from authorities to fight IP crime, rights holders are often invited to fund the basic needs of the enforcement agencies such as transport expenditures. Obviously, this poses a serious problem to rights holders who cannot provide the funds as they need to respect transparency rules. Ironically, rights holders most concerned by counterfeiting and piracy in Africa are those confronted with dangerous counterfeits such as medicine and spare parts. This creates a dramatic vicious circle where under-resourced enforcement agencies cannot fight dangerous IP infringements because of the lack of resources and rights holders are unable to meet the financial expectations of the authorities. As a result, in many countries, dangerous IP infringements persist with African consumers as victims.

2.4 Little cooperation between different authorities within and amongst African states

Counterfeiters are adopting increasingly sophisticated methods that defy easy categorization at borders in their efforts to avoid detection. One way for governments to remain ahead is to increase cooperation between agencies within the country and between countries. Inter-state cooperation is all the more important in Africa, as counterfeits are often conveyed by informal or small-scale cross-border traders.

Although multi-agency cooperation both within and across borders might seem obvious on paper, in practice, this is not necessarily the case in all jurisdictions. Criminals are often better at cooperating with each other than enforcement agencies. This may be due to several reasons, including historical differences between states, competition amongst in-state agencies for limited funds, lack of trust and complex bureaucracies. While there are at times international operations mounted against counterfeit goods across the continent, such as Operation Biyela 2 in 2014 which targeted trafficked products at the borders in 14 sub-Saharan African nations¹⁷ and Interpol’s Operation Pangea X in 2017, such operations remain ad-hoc, they often focus on only one type of product (pharmaceuticals) and are organized by agencies found outside Africa.¹⁸ There is not yet an African conscience as to the necessity to finance and equip such operations within Africa for Africans by Africans.

2.5 Counterfeiting is not regarded as a serious crime

Counterfeiting is frequently seen as a victimless crime. In fact, it often seems like a Robin Hood storyline where big, nasty corporations are deprived of excessive profits by the deserving masses. Counterfeits are simply seen as cheaper goods and counterfeiting does not warrant harsh sentences. In Comoros, for example, the recognition that the majority of the population has a low purchasing power (including customs officials themselves) has encouraged a lax attitude towards counterfeit production and distribution circuits.¹⁹ Where the police arrest a hawker illegally selling falsified medicines, the police do not seize the medicines and the hawker is liable only to a fine.²⁰ Many forget that counterfeits may have serious consequences, including death, that it prevents local artists from earning a living from their art, and that it supports organized criminal organizations with links to terrorism, extortion and numerous other illegal activities.

It can also be the case that a country faces difficult situations which pose a high strain on the limited resources of the police, customs and judiciary. The cocaine traffic in Guinea Bissau run by powerful drug cartels, using the country as a transit port for cocaine supply from Latin America to Europe, leaves little room for capacity and resources in the fight against counterfeiting.²¹ Civil unrest and war, such as in Centrafrique, are other examples. In such cases, it is difficult for a country to focus on the fight against counterfeits, unless support is provided by the rights holder and the international community.

2.6 Absence of efficient Customs enforcement mechanisms in many African countries

One of the major factors in the availability of counterfeits in Africa is the lack of customs enforcement. Formal customs recordals for IP rights are only really effective in a handful of African territories, including Algeria, Ivory Coast, Egypt, Kenya, Mauritius, Morocco, South Africa and Tunisia. While many more customs legislations provide for customs enforcement at the border, few countries have the regulations or mechanisms in place to support the detection and prevention of the entry of counterfeit and pirated goods into the country. While the Comoros’ Customs Code provides that Customs has a duty to prevent the circulation of counterfeited and pirated goods,²² no regulations or internal documents translate the law into clear, actionable steps. A similar situation is applicable in Chad which applies the Central African Economic and Monetary Community (CEMAC) Customs Code, which prohibits the entry and warehousing of foreign counterfeit goods.²³ The lack of clear procedures impedes both rights holders and Customs: not knowing what to do, there is a natural wariness from rights holders to contact Customs, and for Customs officials, to seize suspect goods. This results in fewer counterfeit goods being seized by Customs and their subsequent entrance into the domestic territory.

It should further be noted that Customs often operates in a difficult environment within Africa, lacking infrastructure and trade-related logistics. According to the 2018 World Bank’s Logistics Performance Index, key ports in Africa such as Durban (South Africa), Lagos (Nigeria), Mombasa (Kenya) and Tema (Ghana) are heavily congested. Land borders are operating beyond their capacity and airport processing is no better. Some airports lack basic inspection equipment like scanners.²⁴

2.7 Advances in technology and the online marketplace

The latest developments in technology have allowed counterfeiters to fine-tune their manufacturing, sale and distribution networks. Through technology advancements, counterfeiters can reproduce goods quickly, cheaply and nearly identical to the original goods, at least as concerns external appearance. The Internet has allowed counterfeiters to promote their goods effectively to a worldwide audience and to distribute, at a significant scale, posted and couriered items, each containing a small number of goods (oftentimes referred to as ‘atomisation’ of counterfeit trade).

As the Internet becomes more accessible, more and more Africans are trading online. This ease of doing business has not been lost on counterfeiters. Unfortunately, the police, the judiciary and even the e-commerce platforms are often unprepared to deal with online counterfeiting. In the five biggest economies of Africa (Nigeria, South Africa, Egypt, Algeria and Kenya), there are 12 major e-commerce platforms. Half these websites have no reporting mechanisms in the event of an IP infringement. Where enforcement mechanisms are available, they may be insufficient or out-of-touch with reality. One major e-commerce website in Nigeria only allows for complaints made by post, ignoring the fact that an item could have disappeared by the time the letter reaches the website operator.²⁵

2.8 Increase in trade links and investment between China and Africa

While the influx of products manufactured in China has led to a rise in the standard of living of Africans through the availability of cheap consumer goods, the increase in trade links and investment between China and Africa have simultaneously led to a rise in the availability of counterfeit goods.²⁶ A 2008 study carried out by the OECD revealed that almost all the counterfeit goods seized in Gabon in that year stemmed from China.²⁷ In Kenya, the premier cable manufacturer had to request the help of the government to fight counterfeit Chinese-manufactured products, leading the Kenyan government to engage diplomatically with China on the issue.²⁸ This rise in the availability of counterfeit goods is unsurprising, considering that China is the main source of counterfeit products sold around the world.²⁹ This attraction to cheap counterfeit products from China is further driven by the low purchasing power in many African states coupled with an appreciation for branded goods.

Counterfeit goods have become so ubiquitous in some African markets that something quite unexpected has occurred: consumers are better aware of counterfeit names than of the originals well-known brands such as Clavin Klein, Samsong and Sunny (instead of Calvin Klein, Samsung and Sony). This has, for example, happened in Sierra Leone where original brands were unknown amongst consumers due to their absence on the market.³⁰ In fact, the counterfeit Chinese products imitate not only well-known Western brands but also the products of local entrepreneurs and firms. This problem is particularly acute for the famous African wax cloths, which are copied in China and sold in Africa. Counterfeit wax cloth companies copy the designs and trade marks without authorization. A news website reported that 79 per cent of wax cloth sold in Togo are Chinese counterfeits, amounting to 742 million metres of fakes sold each year to consumers attracted by the competitive price of Chinese fabrics.³¹ Counterfeit wax cloth has impacted many people and companies, from the wax print distributors or Mama Benzes,³² as they are known, to local wax manufacturers.

Africans themselves have been very active in fuelling the import of products from China to Africa, both for legitimate and illegitimate businesses.³³ In Uganda, it was discovered that China would commission university students to analyse the local market trends regarding fastmoving consumer goods just before Christmas. Those goods were then brought into the domestic markets just in time for Christmas.³⁴

2.9 Developing legal frameworks

The legal framework in Africa remains a barrier in the effective fight against counterfeits in many African countries. In some countries, outdated laws that are not in compliance with the TRIPS Agreement are in place. The current Trade Marks Act of 1981 of Eswatini (formerly Swaziland) does not comply with the provisions of the TRIPS Agreement, the Madrid Agreement concerning International Registration of Marks and the Banjul Protocol on Trade Marks. The Trade Mark (Amendment) Bill of 2015 which would bring Eswatini into compliance with international and regional provisions is pending. The most surprising, however, remains Equatorial Guinea, which still applies Spanish law from colonial times to IP rights.³⁵

Issues also arise in relation to the application of regional provisions domestically. Under the Banjul Protocol of the African Regional Intellectual Property Organization (ARIPO) regional system, rights holders can register their trade marks in the ARIPO Member States through a single application in one language indicating all or some of the states. The single application filed either in a national office of a contracting state or directly with the ARIPO Office in Harare, Zimbabwe, has the effect of a regular national filing in the states designated in the application. So far only 5 of the 10 members of the Banjul Protocol have expressly domesticated—that is to say transposed into national law—the Protocol (Botswana, Liberia, Malawi, Namibia and Zimbabwe), prompting recurrent questions and hesitations related to the domestic application of the Banjul Protocol and the enforceability of an ARIPO trade mark registration in countries not having transposed the Protocol into domestic legislation.³⁶

In some cases, a poorly thought out law may open the market for counterfeits. For example, Mauritania is a regional hub for counterfeit drugs coming from China, India and the United Arab Emirates into West Africa. The traffic of counterfeit drugs boomed in 2004 with a law allowing every Mauritanian to open a pharmacy provided that a pharmacist is the technical manager.

2.10 Lack of specialized courts for IP infringements

Other difficulties relate to the court system. In some states, promised courts have not materialized, such as in Ghana where the Copyright Tribunal, which will have the authority to hear disputes concerning licensing schemes and licensing bodies, is yet to be constituted. Specialized courts dealing with IP right infringements are the exception rather than the rule in Africa, with only a few countries having specialized courts. One example is the Ethiopia’s IP Tribunal that has a quasi-judicial power to adjudicate civil copyright litigations (except extra-contractual ones) and to review decisions given by the Ethiopian Intellectual Property Office (EIPO) in respect to the filing and opposition of trade marks, designs, patents and utility models. The IP Tribunal also adjudicates on pleadings filed to EIPO for cancellation and invalidation of registered IP rights. In Kenya, there are four main specialized IP Tribunals: the IP Tribunal, the Seeds and Plant Varieties Tribunal, the ARIPO Board of Appeal and the Kenya Copyright Board Authority. Zimbabwe’s IP Tribunal is mandated to preside in a quick and timely manner over IP disputes (other than criminal matters). In South Africa, the Court of the Commissioner of Patents has limited jurisdiction over patent disputes. Finally, Namibia’s new Industrial Property Act, which came into effect on 1 August 2018, provides for infringement proceedings to be brought before the Industrial Property Tribunal.³⁷

Some countries streamline all IP cases through the commercial courts. In Egypt, all matters related to IP rights are heard before the specialized Economic Courts. In Botswana and Lesotho, such matters are heard before the commercial divisions within the High Court. While centralizing IP disputes before commercial tribunals are certainly advantageous compared to having cases heard all over the country by judges with no specialized commercial or IP training, the benefits of establishing a specialized IP court cannot be minimized. Setting up a specialized court improves the quality of IP-related disputes with coherent and consistent pronouncements based on experience. Judges can benefit from advanced training; it is easier and more cost-effective to train a handful of judges working in a specialized court than numerous judges spread over the whole territory. With more specialization and a greater degree of experience, judges become more apt at keeping pace and adapting to the dynamic developments in IP and the need for timely decision-making.³⁸ In too many African countries, complex cases are being heard by judges with no specialized training in IP. Obtaining inconsistent and at times simply incorrect judgments, particularly before the lower courts, is a real risk for rights holders.

The faults and challenges posed by the legal framework in protecting and enforcing IP rights must, however, be viewed within the greater picture of the state of the judiciary in a number of African countries. The judiciary is facing difficulties beyond the IP field. In Equatorial Guinea, 80 per cent of judges are not legally trained or have never practised law, and many of those 80 per cent have received no training to fulfil their role as a judge.³⁹ There are no established legal procedures and no codification of Equatorial Guinean legislation. In Niger, half a century after independence, there are still discussions on the application on the applicability of French colonial laws.

3. Positive initiatives and developments

Whilst a bleak picture may have been painted of the state of the fight against counterfeits in Africa, in recent years a substantial number of improvement measures and innovations have been implemented that support effective IP rights enforcement and anti-counterfeiting strategies in Africa. This follows a growing awareness in Africa for the value of IP rights and the need to protect these rights in Africa.

3.1 IP law and IP policy developments

There is a general trend in Africa for the review and amendment of domestic laws in order to comply with international obligations and to provide effective measures for the protection of IP rights. For example, the Mauritian parliament voted in a new modern Industrial Property Act in 2019 which allows for the accession of Mauritius to the Madrid Protocol and the Hague System. The new Industrial Property Act of Namibia complies with the provisions of World Intellectual Property Organization (WIPO) and ARIPO treaties and provides certainty as to the validity and enforceability of registrations filed under the international and regional systems. In Malawi, the new Trade Mark Act came into force in October 2018, entrenching the provisions of both the ARIPO and Madrid Systems into the national laws, in addition to providing protection measures for well-known trade marks and customs right of action in respect of trade mark infringements of imported goods.

Several countries have adopted or are in the process of adopting a specific IP policy. In 2016, Ghana published its first National Intellectual Property Policy and Strategy, with the aim of bringing Ghana’s IP system in line with its international commitments and international best practice. The policy aims at ensuring that innovators, creators, users and consumers of the IP System benefit from an improved IP environment which is being implemented from 2016 until 2020. With the release of the National Intellectual Property Policy, Gambia has officially begun to prosecute IP rights violations. Although Botswana has not formulated an IP policy, the National Competition Policy for Botswana 2005 as well as the Research, Science, Technology and Innovation Policy recognize and respect the role IP rights play in human and economic development. In particular, the National Competition Policy for Botswana recognizes the need to protect and safeguard the interests of IP rights holders and to promote the development of creations and innovations.⁴⁰ Similarly, in April 2019, the Malawian Ministry of Justice launched its National Intellectual Property Policy, recognizing the importance of IP in the economic transformation of Malawi.⁴¹

3.2 Legislative amendments and developments focused specifically on anti-counterfeiting measures

Nearly all African countries recognize and criminalize trade mark and copyright infringements, one rare exception being Burundi. This demonstrates a strong recognition by countries of the dangers of counterfeit goods. Some African countries have, through recent legislative amendments, expanded the protection offered to well-known trade marks in their territory. For the owners of well-known trade marks who do not (yet) exploit their brand in some African countries, the registration of defensive trade marks may be considered in a number of territories, such as Kenya, Nigeria, Seychelles, Uganda, Zambia and Zimbabwe, the advantage being that defensive trade marks do not have to be used to remain valid and in force.⁴²

There is further a growing tendency for countries to adopt legislation which specifically focuses on IP right enforcement measures, particularly in respect of counterfeit goods. This includes amendments to customs laws and procedures, specifically authorizing Customs to deal effectively with IP rights infringements, counterfeiting and piracy at the borders. In Kenya, for example, the Statute Law (Miscellaneous Amendments) Act of 2018 creates increased stringent measures against counterfeiting and piracy, including provisions for the recordal of all IP rights with the Anti-Counterfeit Authority.⁴³

3.3 Establishment of specialized anti-counterfeiting agencies

The establishment of specialized units mandated to deal with counterfeit goods in some countries further supports anti-counterfeiting strategies and IP enforcement initiatives. A trained and dedicated team focusing on collecting intelligence and taking decisive actions will most likely result in increasing counterfeit seizures; for example: in Mozambique, the National Inspectorate of Economic Activities, working together with the Industrial Property Institute is actively involved in investigations and actions against counterfeiters in Mozambique; and the Zambian Police Intellectual Property Unit, formed in 2006, is a specialized unit of the police mandated to deal with enforcement of IP and cybercrime. The Unit enforces and protects IP rights by prosecuting perpetrators of IP crimes and is involved in the education and awareness of members of the public on the benefits of IP rights and the dangers of infringements.⁴⁴

3.4 Training and awareness initiatives

Training and awareness initiatives are growing in number and frequency on the continent, as a result of both international and national organization initiatives. These include training conducted by international organizations, such as WIPO, International Criminal Police Organization (INTERPOL) and World Customs Organization (WCO) and national authorities, such as the Companies and Intellectual Property Commission (CIPC) in South Africa, as well as coalition bodies, such as the Anti-Counterfeiting Collaboration in Nigeria. These training initiatives are imperative to building capacity in respect of IP enforcement measures. WIPO has, in this regard, worked consistently with national enforcement bodies, training officials on effective investigation, prosecution measures and best practices in order to support and promote effective enforcement in anti-counterfeiting on a national level in key territories in Africa.⁴⁵ Training initiatives touch all concerned including the staff of IP Commissions, Customs officials as well as the prosecutors and judges. Some countries have produced clear training material and handbooks for those involved in the fight against counterfeiting and piracy. In collaboration with the International Organization of La Francophonie, the Burkinabe Copyright Office produced a complete guide on copyright at the behest of judges and other court officers.⁴⁶ Separate guides were also produced for Customs officials and the police.⁴⁷ Similarly, CIPC in South Africa together with WIPO has prepared The South African Training Manual on Investigation and Prosecuting IP Crime for Senior Enforcement Officials⁴⁸ which is used in the national training and awareness initiatives, conducted on regular intervals within South Africa. The Organisation Africaine de la Propriété Intellectuelle (OAPI) is furthermore strongly involved in the dissemination of information on IP rights amongst its Member States. Apart from delivering seminars and producing leaflets and books on IP rights,⁴⁹ the OAPI delivers a Masters programme on Industrial Property in Yaoundé, Cameroon. By 2018, nine classes had graduated, creating a small pool of trained professionals.

The popularization and awareness of the importance of IP rights has enabled the emergence of numerous public officials interested in ensuring that the continued respect of IP rights is upheld on the continent. Aware of the dangers posed by counterfeit goods and inspired by the ground-breaking work that they are undertaking, public officials (police, judiciary and Customs) are often highly motivated in protecting the public against substandard and counterfeit goods, in conjunction with the continued and consistent protection and enforcement of IP rights. In Africa, officials are often found to be committed to and passionate about making a difference in the fight against counterfeiting and actively policing against this crime, which is primarily driven by organized crime syndicates, is dangerous and even life-threatening. In some cases, investigators and officials have lost their lives: in just one example of many, in 2011 a Durban senior customs investigator, who had been the key investigator in the South African Operation Duty Calls, which saw counterfeit goods over R120 million (at the time approximately US$17 million) seized in Durban harbour, paid the ultimate price in the fight, namely his life.⁵⁰ Without the continued involvement and commitment of these members and officials mandated and tasked to act in respect of counterfeit goods, IP enforcement may be considered a losing battle.

3.5 Collaborative efforts

Another key aspect in the success of anti-counterfeiting initiatives is collaborative efforts, not only between inter-government departments but also between the public and private sectors. In South Africa, the strategy of joint operations, involving several government bodies, such as the Directorate for Priority Crimes Investigations, Customs, the Department of Home Affairs and other supporting and regulatory bodies, has successfully been deployed in order to target main distribution points and areas of source and supply of counterfeit goods. In many countries, the provision of training by the rights holders to Customs often leads to increased seizures of counterfeits. In Mauritius, Customs holds an annual one-week training event where various rights holders are invited to train custom officials on how to distinguish between real and fake goods. Such collaborative efforts are particularly important in sectors where evidence of counterfeiting is hard to detect, such as for electrical appliances.

3.6 Adoption of technological measures

Unencumbered by past practices and history, Africans are adopting innovative technological means to fight back against counterfeits. These technological advances are being adopted both by the general public and government authorities.

With three-quarters of the population in Africa (747 million people) having a mobile phone connection, of which a third (250 million) have a smartphone,⁵¹ it is no surprise that many of these innovations are based on mobile technology and short message service (SMS) identification. Since July 2017, Malian consumers may verify the authenticity of a product by sending a verification code on their mobile phone.⁵² In Nigeria, more than 5 million pharmaceutical products have been fitted with a scratch card. Once scratched, a one-time use code is revealed. The patient may send the code via SMS to a number and immediately receives a response as to whether the drug is real or fake. If the drug is fake, the customer receives a hotline number to report the counterfeit drug. This is also being rolled out in Kenya.⁵³ A similar product has been developed by an African company, allowing buyers to send a free text message with a unique code found on the drug packaging or to scan the barcode with their smartphone. This technology is being extended to seeds for farmers, cosmetics, vehicle spare parts and agrochemicals amongst others.⁵⁴ Beyond the obvious benefit of SMS identification to the consumer, the data collected also allow right holders to track locations where occurrences of counterfeits are common, which can then be used to trace offenders. This is the case for an SMS identification system used for counterfeit seed packets in Kenya.⁵⁵ It is further possible in Nigeria to report all suspected criminal activities relating to regulated products to the National Agency for Food and Drug Administration and Control (NAFDAC) by using the completed form on their website or using PRASCOR an SMS short-code system/service.

Some governments are adopting blockchain and other innovative technologies to fight counterfeit at the national level. The Kenya Revenue Authority uses the high-tech Excisable Goods Management System since 2013 to track tobacco, wines and spirits. This pioneering initiative in Africa has led to an additional US$ 57 million of tax revenue for the government in only 5 years and reduced the illicit trade in these products. The plan to extend the scheme to non-alcoholic beverages was, however, quashed by the High Court in March 2018, in part due to a fear of bringing in extra costs for manufacturers, importers and consumers.⁵⁶ In Nigeria, the NAFDAC uses a combination of technological means from SMS identification, hand-held analysers that identify goods through sealed packaging in a matter of seconds, to radio-frequency identification tags that identify individual items and track movement through the supply chain. This new approach to combating counterfeits has resulted in a drop-in prevalence of counterfeits from 64 per cent to 3 per cent.⁵⁷

4. Tips and tricks for rights holders

Although anti-counterfeiting strategies are similar all around the world, there are certain specific issues that rights holders need to keep in mind when protecting and enforcing their IP rights in Africa’s emerging markets.

The starting point is to secure protection and registration for industrial property rights, such as patents, designs and trade marks in the different African countries and territories. In this regard, rights holders should anticipate that this may be a lengthy process. In some countries, it is not unusual for trade marks to be due for renewal before they are even registered. This may be problematic as in many African countries IP rights can only be properly enforced once they are registered and overly long registration procedures can thus result in difficulties in enforcing IP rights. However, one should not generalize, for example, in Rwanda trade marks are registered more quickly than in the USA and at the EUIPO.

Copycat products are commonly encountered in African markets, and as such it is good advice to register a product label or a get-up to support cases where third parties copy the packaging or label of a product, but apply a different or dissimilar word mark.

Experience has shown that rights holders are well advised to keep track of all documents attesting of the registration process (filing receipts, acknowledgement forms, evidence for payment of official taxes). Many African IP registers are still in paper format. There is always a risk that the register or parts thereof perish due to unrest, fire or flood and that rights holders need to resubmit original documents or at least copies showing that their IP rights have been duly protected. This has been the case in DRC, where due to civil unrest and looting, parts of the register have been compromised. Recently numerous paper files and official records were lost due to renovation works in the Nigerian registry.

There are unfortunately many incidents involving corruption. Corrupt officers at the IP Registry in cahoots with unscrupulous agents have shared amongst themselves the official filing fees paid by the applicant and false filing receipts were issued. In the absence of payment of official fees, there is no valid IP protection. In many cases, this scam is only discovered years after the filing was instructed because the unscrupulous agents blamed the administrative backlog for the slow registration process. In other instances, unethical IP agents have invoiced their clients/foreign correspondents for services rendered without ever submitting the applications for filing or renewal of an industrial property right.⁵⁸ Hence, there is a need to follow-up procedures closely and to keep track of official documents.

Rights holders are well advised to consider cross-border distribution and trade routes when securing trade mark registrations and to ensure that protection is obtained in neighbouring territories. For the many landlocked countries in Africa, consideration should be given to the main ports of entry in the neighbouring territories, since access to an important market could be blocked by a conflicting trade mark registration in the transit country where the port of entry is located, or customs may not be in a position to act at the port of entry without a registered pre-existing trade mark in that territory.

Once valid trade mark rights have been obtained, rights holders will have to be very careful to meet the use requirement. In most African countries, trade marks have to be put to genuine use after 3–5 years. It may be difficult for some rights holders to prove genuine use because although their trade mark may be well known in a given African territory, they do not sell their products locally. Many luxury brands are well-known and appreciated by (rich) African consumers although they have no point of sale, even in important African markets. In some African countries, rights holders can rely on case law recognizing that use of a trade mark in foreign media (international news, magazines or TV channels) that are accessible to the local consumer constitutes use in that African country.⁵⁹ In other cases, rights holders may be able to rely on the special protection afforded to well-known trade marks, although experience has shown that to be successful such actions must be meticulously prepared and evidence must be adduced to properly establish the well-known character of the brand.⁶⁰ Kenya, Nigeria, Seychelles, Uganda, Zambia and Zimbabwe offer well-known brand owners the possibility to obtain defensive trade mark registrations, which do not have to be used to remain valid and in force.⁶¹

Rights holders should also bear in mind that in many African countries and territories, use by an authorized user only inures to the trade mark owner if the trade mark licence is duly registered with the relevant IP office. Having in place with licensees, the proper contractual arrangements, which provide for responsibilities and requirements for enforcing rights in the territory before a conflict or an infringement arises, can greatly assist in ensuring the swift enforcement of IP rights locally.

Unlike in more forward-looking jurisdictions, where rights holders will often be able to use database extracts to establish their IP rights and usually no power of attorney is required, African countries can be very procedural. In many countries and territories, plaintiffs in court proceedings will have to provide certified true copies or even original registration certificates. In the OAPI countries, rights holders must provide a recent certificate issued by the OAPI administration attesting that the IP rights are still valid.⁶² Attorneys-at-law will in most African countries require at the very least a duly signed power of attorney form in order to be able to represent their foreign clients, in many cases additional formalities such as a legalisation, the Apostille, a deposit with a local notary or the local Registrar are mandatory. Ensuring timeous gathering of this paperwork and compliance with these formalities beforehand can avoid unnecessary delays in the initiation of urgent court proceedings to stop an ongoing infringement.

In the absence of registered trade mark rights, rights holders should consider other IP right mechanisms that can be used as a basis for enforcement of rights. Copyright vesting in artistic works, such as logos and product packaging get-up, can provide a firm basis for action in most African states. Rights holders should make sure they have the required documentation and evidence to support the existence of copyright, where copyright registration is unavailable. Common law rights and passing-off/unfair competition may be additional courses of action.

Once valid IP rights are obtained, rights holders need to set up and implement a targeted and proactive IP rights strategy, both for countries where they are currently invested and for possible future countries. In addition to trade mark watching services, rights holders should rely on their local distribution channels as ‘eyes and ears’ on the ground in order to detect infringements. It should be kept in mind that private databases may not accurately reflect the situation of the register on the ground, and in practice, it often happens that the results of an official search and of a search in a private database only partially overlap. Therefore, to ensure a proactive protection strategy, it is best practice to not only regularly carry out a search in a private database but also an official search.

Imposters and bad faith applicants are probably more frequent in Africa than in more developed jurisdictions, and rights holders should remain very vigilant and regularly check trade mark and company name registers for bad faith applications. There are cases where imposters have fraudulently applied for company registrations, including names of well-known foreign companies and thereafter fraudulently obtained homonym trade marks, thereby causing major disruption to legitimate right holders. In Nigeria, for example, a seasoned trade mark troll fraudulently created a company Andreas Stihl AG Nigeria Ltd, thereby suggesting an association with the well-known German company and worldwide leading manufacturer of chainsaws and other handheld power equipment, Andreas Stihl AG & Co KG. He also surreptitiously registered the STIHL trade mark, although valid trade marks were in force for the German company in Nigeria and had been since the 1970s. Equipped with the registration certificate, the trade mark troll obtained an Anton Pillar order allowing him to seize original STIHL products worth US$1 million from the authorized distributor. While the goods were meant to be under the surveillance of the Court that had granted the Anton Pillar order, these goods were diverted to the trade mark troll’s house. The trade mark troll refused to return the products even when the court bailiffs came to his house to recover them. This was the start of a lengthy process to obtain the return of the goods and the arrest of the trade mark troll. The counsels of the German company were eventually successful in obtaining a warrant of arrest for contempt of court against the trade mark troll and the return of the majority of the goods. However, this required substantial efforts and financial investment.⁶³ In a separate matter in Nigeria, a manufacturer of electronic products registered the ‘Lexus’ trade mark under Classes 9 and 11. It later sued Toyota for infringing its trade marks when Toyota applied and later on withdrew its application for the registration of the ‘Lexus and Device’ trade marks in Classes 9 and 11.⁶⁴ Although Toyota ultimately won on appeal against the manufacturer of electronic products, the judicial battle lasted 3 years and at first instance Toyota was ordered to pay US$ 2 million in damages. Bad faith trade mark applications and con court cases are legion in Africa as the scammers try to extort money from multinational corporations. Rights holders are well advised to carefully anticipate this type of situation.

It would be naïve to ignore the possibility that in some African countries, there is a risk of bribery, corruption or unfairness, and whilst right holders may fear that unscrupulous infringers bribe judges and authorities to attain their goals, respectable companies are well advised to maintain their own integrity and follow due process, even if lengthy. To counter the effects of corruption and bribery that may be encountered in some countries, rights holders are advised to present their case clearly and to scrupulously respect deadlines: arguments must be clearly outlined, so that there is no room for ambiguity and it is advisable to anticipate deadlines by filing a few days in advance, just to avoid any possibility for arbitrary decisions. Despite these precautions, rights holders may sometimes be confronted with surprising and irrational decisions, where it is not clear whether these are the result of non-specialized judges or influences of corruption and bribery. In such cases, it is possible to file an appeal against the decision, or for such decision to be taken on review, which may be heard by more than one judge, thereby reducing the chance of bribery and corruption. The lack of resources of the authorities is another stumbling block. Whilst the under-resourced authorities see it as normal practice to ask what is seen as ‘wealthy, foreign companies’ for some support for their missions (eg transportation expenses), this is perceived as a compliance and transparency issue by rights holders, who are reluctant to provide this type of motivation and support. This can sometimes lead to a deadlock situation where—at times dangerous—infringements persist because of the lack of resources of the authorities and the persistent refusal of rights holders to fund an intervention. In this situation, rights holders should think of alternative strategies, such as involving the local Embassy, who may be able to resolve the deadlock through diplomatic channels. Generally speaking, the local Embassy can be an important ally for rights holders in a foreign territory, since the respect for IP is high on the diplomatic agenda.

Where criminal proceedings are available in respect of counterfeit and pirated goods, these should be pursued vigilantly and consistently in order to provide and build the knowledge base and confidence of prosecutors and presiding officers alike, by establishing and building on legal precedents in criminal prosecution in respect of such IP infringements.

Consideration should furthermore be given to regulatory relief mechanisms and support which can be provided by regulatory bodies in Africa, particularly in respect of actions targeted at sub-standard or non-compliant goods. Regulatory bodies, such as NAFDAC and Standards Organisation of Nigeria in Nigeria, can provide effective strategies and relief to remove counterfeit and substandard products from the marketplace, as an alternative or in tandem with formal IP right enforcement proceedings.

In practice, it is paramount for rights holders to cooperate with Customs and other enforcement authorities through the provision of training and to build up a relation of trust and confidence. Once a good working relation is established, rights holders may expect full cooperation from the authorities to obtain tangible results. For this, it is important that IP rights holders follow up closely on possible interventions. Often, Customs are eager to act but lack the necessary training or intelligence on the effective handling of counterfeit goods, and Customs officials themselves are requesting training and support in order to increase efficiencies and implement best practices. Collaboration with Customs may also be successful in countries where formal customs recordal is not available, as many countries do provide for informal custom registration and support rights holder training and awareness initiatives.

Rights holders are strongly encouraged to participate in the training and capacity building events of WIPO, to support INTERPOL concerted actions on the continent, and to join the WCO customs operations. All these events aim to build capacities, better understanding and respect for IP rights on the African continent. The WCO events are particularly helpful to support enforcement efforts in African countries that do not have a customs recordal system in place, as these customs operations raise the awareness of the authorities to the presence and danger of counterfeit in the country.

Rights holders should foster the mutual exchange of ideas and propose solutions that already exist and work well in more forward-looking jurisdictions, from a position of deep respect for local cultures and empathy for local rule of law, even if it is a challenge to understand in the context of one’s legal and ethical paradigm. For example, it is particularly important to keep in mind the environmentally friendly disposal or recycling of counterfeit goods, which have been successfully adopted and implemented in other jurisdictions, and provide recommendations and solutions that may be applied and adopted in African countries.

To sum it up, rights holders should retain specialized advisers who clearly understand the subtleties of the local law and practice to ensure their IP rights are properly protected on the African continent.

This article is a revised version of the introductory chapter to the Oxford University Press publication ‘Enforcement of Intellectual Property Rights in Africa’ due to be published in April 2020.

Footnotes

1

<https://www.brookings.edu/wp-content/uploads/2018/12/Africas-consumer-market-potential.pdf> accessed 17 February 2020.

2

<https://issafrica.org/about-us/press-releases/african-policymakers-must-pay-more-attention-to-counterfeit-drugs> accessed 17 February 2020.

3

<https://www.iard.org/getattachment/1b56787b-cc6d-4ebb-989f-6684cf1df624/alcohol-in-the-shadow-economy.pdf> accessed 17 February 2020.

4

<https://www.theglobeandmail.com/report-on-business/international-business/african-and-mideast-business/counterfeit-goods-strangle-legitimate-trade-in-east-africa/article4181154/> accessed 17 February 2020.

5

<https://thearabweekly.com/casablanca-still-eldorado-counterfeiting-and-piracy> accessed 17 February 2020.

6

<https://www.iol.co.za/news/south-africa/western-cape/sas-porous-borders-corruption-make-it-easy-for-traffickers-experts-16293558> accessed 17 February 2020.

7

Alain Nzilo, ‘Les douaniers centrafricains plaident pour la securisation et la pacification de toute la RCA (Douane)’ (Corbeau News Centrafrique, 27 January 2015) <https://corbeaunews-centrafrique.com/les-douaniers-centrafricains-plaident-pour-la-securisation-et-la-pacification-de-toute-la-rca-douane/> accessed 17 February 2020.

8

Botswana, Burkina Faso, Burundi, Central African Republic, Chad, Ethiopia, Lesotho, Malawi, Mali, Niger, Rwanda, South Sudan, Swaziland, Uganda, Zambia, and Zimbabwe.

9

<https://www.standardmedia.co.ke/article/2000046766/cartels-diverting-drc-goods-to-eac-nations> accessed 17 February 2020.

10

<https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta_-_en.pdf> accessed 17 February 2020.

11

Marie Chêne, Corruption at Borders (CHR. Micheksen Institute 2018) 8.

12

Nassirou Bako-Arifari, ‘La corruption au port de Cotonou : douaniers et intermédiaires’ [2001] 3 Politique africaine 83, 41.

13

OECD/EUIPO, Trends in Trade in Counterfeit and Pirated Goods (Illicit Trade, OECD Publishing,

European Union Intellectual Property Office 2019)16.

14

Barbara Kamusiime, ‘Public Should Join in Fight Against Substandard Products’ Daily Monitor, Kampala (16 December 2015) <https://www.monitor.co.ug/OpEd/Commentary/Public-should-join-in-fight-against-substandard-products/689364-2998758-format-xhtml-u3o273z/monitor.co.ug> accessed 17 February 2020.

15

Lionel Pascal, La privatisation des missions douanières en République Centrafricaine (RCA) : une opportunité d’amélioration des finances publiques? PhD Thesis, University of Bordeaux, 2014, 70.

16

World Trade Organization, ‘World Trade Review. ANNEX I Cameroon’ (2013) Trade Policy Review Body 134.

17

<http://www.iracm.com/en/operation-biyela-2-2/> accessed 17 February 2020.

18

<https://www.europol.europa.eu/newsroom/news/millions-of-medicines-seized-in-largest-operation-against-illicit-online-pharmacies>.

19

Ministère des Finances, de l’Economie, du Budget de l’Investissement et du Commerce Extérieur, chargé des privatisations, Etude Diagnostique sur l’Intégration du Commerce en Union Des Comores (EDIC 2015-2019) (Rapport Intermédiaire) (Unité Nationale de Mise en Œuvre du Programme Cadre Intégré Renforcé en Union des Comores, 2015) 80.

20

Mohamed Cheikh Salim, La distribution des médicaments et autres produits de santé aux Comores (Université de Lille 2018) 47.

21

World Trade Organization, ‘Trade Policy Review. Report by the Secretariat. Annex II Guinea-Bissau’ WT/TPR/S/266/GNB para 52.

22

Customs Code, art 1.

23

CEMAC Customs Code, art 52.

24

<https://www.tralac.org/blog/article/13680-wto-trade-facilitation-agreement-an-african-perspective.html>  accessed 17 February 2020.

25

<https://www.thomsentrampedach.com/post/ip-protection-on-major-african-online-marketplaces-2/> accessed 17 February 2020.

26

<https://enact-africa.s3.amazonaws.com/site/uploads/2018-11-12-counterfeit-medicines-policy-brief.pdf> accessed 17 February 2020.

27

OECD, The Economic Impact of Counterfeiting and Piracy (OECD 2008) 79.

28

<https://www.businessdailyafrica.com/markets/marketnews/EA-Cables-cries-for-help-over-Chinese-fakes/3815534-4599698-qjcwnx/index.html> accessed 17 February 2020.

29

<https://elpais.com/elpais/2017/06/22/inenglish/1498121880_945362.html> accessed 17 February 2020.

30

<https://www.dw.com/en/africa-needs-unified-regulations-against-cheap-chinese-imports/a-43981996> accessed 17 February 2020.

31

‘Le fléau des textiles de contrefaçon’ (COMMODAFRICA, 9 September 2015) <http://www.commodafrica.com/09-09-2015-le-fleau-des-textiles-de-contrefacon> accessed 17 February 2020.

32

The nickname ‘Mama Benzes’ was given to wax distributors in West Africa. From the pre-colonial era to the late 20th century, wax distribution was a highly profitable female occupation, affording riches and Mercedes Benz to the Mama Benzes. <https://qz.com/africa/1474039/wax-print-african-fashion-and-chinese-importers/> accessed 17 February 2020.

33

See n 30.

34

<https://www.theeastafrican.co.ke/news/2558-625744-view-printVersion-e1jiam/index.html> accessed 17 February 2020.

35

Law of 10 January 1879 on IP.

36

Marius Schneider, ‘Registering Your Trade Mark in Africa? Not as Simple as It Seems’ 2018 (2) GRUR 42.

37

Namibian Industrial Property Act, 2012, art 215.

38

<https://www.wipo.int/wipo_magazine/en/2016/si/article_0009.html> accessed 17 February 2020.

39

‘Access to Justice for Children: Gabon’ (CRIN, 2014) 10 <https://archive.crin.org/sites/default/files/gabon_access_to_justice_en.pdf> accessed 17 February 2020 (hereafter CRIN, Gabon).

40

cl 8: Strategic Policy consideration, para 8 (j)(ii)(c).

41

<https://www.registrargeneral.gov.mw/acts_regulations/National_IP_Policy_.pdf> accessed 15 October 2019.

42

Nora Ho Tu Nam and Marius Schneider, ‘Protecting Well-known Trade Marks in Africa’s Emerging Markets’ (2018) 13(12) Journal for Intellectual Property Law & Practice 945.

43

Act No 18 of 2018.

44

Intellectual Property Unit (Zambia Police) <http://www.zambiapolice.gov.zm/index.php/2012-11-23-08-17-17/directorates/criminal-investigations/financial-investigation-and-interpol/intellectual-property-unit> accessed 17 February 2020.

45

<https://www.wipo.int/enforcement/en/activities/current.html> accessed 17 February 2020.

46

<https://www.wipo.int/edocs/lexdocs/laws/fr/bf/bf026fr.pdf> accessed 17 February 2020.

47

See <https://wipolex.wipo.int/en/text/315046> accessed 17 February 2020; <https://wipolex.wipo.int/en/text/314427> accessed 17 February 2020.

48

Based on the Training Manual on IP Crime Prosecution for law Enforcement Agencies and Prosecutors prepared for and issues by WIPO, Geneva 2015, with the consent of the Organization.

49

<http://www.oapi.int/Ressources/guide_magistrat/guide_du_magistrat.pdf> accessed 17 February 2020.

50

Paul Kirk, ‘Murder of Customs Official “Was a hit”’ (The Citizen, Johanesburg 19 January 2011) <https://www.security.co.za/news/17539> accessed 17 February 2020.

51

<https://www.zdnet.com/article/mobile-in-sub-saharan-africa-can-worlds-fastest-growing-mobile-region-keep-it-up/> accessed 17 February 2020.

52

SPROXIL, ‘SPROXIL lance au Mali ses activités en partenariat avec l'USAID et l'ICRISAT’ (SPROXIL, 10 July 2017) <https://sproxil.com/2017-07-10-2017-7-10-sproxil-lance-au-mali-ses-activities-en-partenariat-avec-lusaid-et-licrisat/> accessed 17 February 2020.

53

<https://acumen.org/?investment=sproxil> accessed 117 February 2020.

54

<https://www.hpe.com/us/en/insights/articles/using-technology-to-fight-counterfeit-medicines-in-africa-1810.html> accessed 17 February 2020.

55

<https://www.reuters.com/article/us-kenya-agriculture-seeds/finding-fakes-mobile-phones-help-detect-counterfeit-seeds-in-kenya-idUSKCN1NL156?fbclid=IwAR3e6C0SQaJXPaZITJtn1lYW_oNUXtxxo3RGDibaZFJpeWlpxgxq0NXeNP4%20target=> accessed 17 February 2020.

56

<https://www2.deloitte.com/content/dam/Deloitte/ke/Documents/tax/EGMS%20Regulations_Alert.pdf> accessed 17 February 2020.

57

<https://thisisafrica.me/nafdac-technology-nigeria-fake-drugs/>  accessed 17 February 2020.

58

<http://lecamerounaisinfo.com/Necrologie-Me-Michel-Mekiage> accessed 17 February 2020.

59

Procter and Gamble Company v Global Soap and Detergent Industries Limited and the Registrar of Trade Marks (2012) LPELR-8014(CA).

60

Sony Corporation v Sony Holding Limited Civil [2019] Appeal No 376 of 2015, 4.

61

Ho Tu Nam and Schneider (n 42).

62

Bangui Treaty, Annexe III, art 48(2).

63

<https://www.sunnewsonline.com/anambra-businessman-ordered-arrested-jailed-hijacking-court-exhibits/> access 17 February 2020.

64

Toyota Motor Corporation v Subaya Metalware Nigeria Limited & Anor (CA/L/1003/2016).