Concern over loopholes in intellectual property law

Sunday February 12 2017

An artist sketching. Loopholes in intellectual

An artist sketching. Loopholes in intellectual property law, ignorance in the creative industry and lack of mechanisms for enforcement are hindering the protection of intellectual rights in Rwanda. PHOTO | CYRIL NDEGEYA 

By Leonce Muvunyi and Jean-Pierre Afadhali

Loopholes in intellectual property law, ignorance in the creative industry and lack of mechanisms for enforcement are hindering the protection of intellectual rights in Rwanda.

This has led to an increase in copyright infringement, trademark court cases and rising counterfeit products, which many blame on the failure by the government to enforce the law protecting rights.

Many infringement cases are related to trademark and copyrights, which many have no regard for. There have been a number of high profile cases of regional companies accusing local businesses of infringing on their trademarks and copyrights.

“There is a practice of small companies using established, successful brands to sell their products,” said Emmanuel Mugabe, a legal expert specialising in intellectual property rights.

According to Mr Mugabe, many new businesses are copying logos or creating slightly similar brands to confuse consumers and dupe them into buying their products or services.

He suggests trademark owners register their logos and brands with the World Intellectual Property Organisation, which boosts protection.

“This would make it easier to monitor the use of your trademark and when there is an infringement it is easy to follow up,” he said in an interview with Rwanda Today.

Emerging technologies

The Rwanda Society of Authors also say the law governing intellectual property lacks provisions for emerging technologies and new media.

“These new technologies didn’t exist when the law was formulated,” said Epa Binamungu, chairman of the society.

He said this is making it easier for counterfeiters to forge trademarks and logos because the intellectual property law has no provision to penalise them.
For instance, the growing fashion industry has been affected by gaps in the law.

“Many people are asking how they can protect their designs, yet we have no provisions in the law regarding fashion,” said Blaise Ruhima, the division manager of intellectual property at Rwanda Development Board (RDB).

Lawyers and experts on intellectual property met recently to discuss trends in enforcement of the law, infringement challenges and anti-counterfeiting strategies.

Francois Kanimba, Minister of Trade, Industry and East African Community Affairs said protecting intellectual property is a big challenge in developing countries.

The low fees charged by Rwanda Revenue Authority on counterfeit products imported into the country have been cited as a hindrance.

According to the Customs Law 20, a person who alerts the Customs office about suspected counterfeit products that are imported into the country pays a caution fee based on of the value of the goods.

The Rwanda Revenue Authority said the caution money is used to compensate the importer, in cases when the court rules that the goods are original. Some say this deters people from reporting counterfeit goods, but the authority said the fee deters malicious claims made by rival businesses.

Weak institutions

According to Mr Mugabe, some of the well known counterfeit cases in the country involve the hair colour product “Kanta” and pen brand “BIC.”

Mr Kanimba said the bodies tasked with enforcing intellectual property laws are not strong enough.

“In the 2017 performance contracts, we have pledged to demand more from institutions that are mandated to protect intellectual property,” he said.

He added that with the support of the World Intellectual Property Organisation, Rwanda is realigning its intellectual property strategy whose first draft is expected by June this year.

Despite the significant increase in intellectual propriety registration, legal experts say ignorance about the law hinders protection of intellectual property.
Athanase Rutabingwa, a lawyer, said many authors are not aware of their rights to protect their work.

“For example, in five counterfeit court cases that we were involved in, most of the players did not know the law and its provisions,” said Mr Rutabingwa.

The government has no statistics to show the losses incurred through counterfeit goods.

Mr Kanimba said infringement of intellectual property rights results in financial losses for legitimate businesses, and the treasury. Experts say trade mark values can reach billions of francs.

The legal fraternity has recommended for the Ministry of Trade, Industry and East African Community Affairs to create an anti-counterfeit committee with the support of the World Intellectual Property Organisation. This committee would bring together enforcement agencies and intellectual property rights holders.

Mr Mugabe said a campaign is needed to inform consumers and intellectual property holders about the law.