2022 is a breakthrough year for Cape Verde’s intellectual property system. After nearly 15 years of stagnation in the ratification of IP treaties and updates to IP law, the island country paves the way to a brighter IP landscape enabled by a strong bet on the integration with key treaties and by a committed focus on developing the IP office practice and national awareness of IP protection.
Roots of change
The first step was taken by the IP office director, Ana Paula Spencer, whose first mission in the new position was the creation of an IP National Strategic Plan (PENPI).
The process of drafting PENPI is underway to provide the country with IP public policies that will boost innovative activities, technology transfer and economic competitiveness, with emphasis on sectors such as tourism, agriculture, green technology, culture, and science.
In this regard, there are three main articulated development and IP policies:
(1) Cape Verde Ambition 2030 - Strategic Agenda for Sustainable Development of Cape Verde
The PENPI’s mission is to structure a balanced, robust, and effective IP system capable of encouraging the country’s preservation and valorization of natural and cultural resources. Moreover, it shall be an IP system that preserves Cape Verde's cultural identity and stimulates creativity and innovation, to accelerate the country's cultural, social, technological, and economic development.
(2) Programme of the VIII Constitutional Government (2021 – 2026)
The government will conclude and operate the ongoing PENPI, the review of the industrial property law and the accession to WIPO treaties and ARIPO protocols. Consequently, it will bring added value to the competitiveness and internationalization of national companies, promoting innovation through technological development, new products and services, and increasing local market dynamics.
(3) Strategic Sustainable Development Plan - PEDS II (2022-2026)
The PEDS is designed to consolidate and accelerate structural changes that make the country more resilient and less vulnerable to external factors. The ambition by 2026 is to achieve a Cape Verde with an advanced democracy and a dynamic economy. To do so, it is essential to meet strategic objectives including economic recovery, fiscal consolidation, and sustainable growth to make Cape Verde an economy of circulation, regional development and quality, and environmental sustainability. Moreover, it is aimed to deepen and value the diaspora and the international prestige of Cape Verde, and to promote regional integration and the dynamic introduction of Cape Verde in the world economic system.
The motivation to amplify Cape Verde’s international presence will be a challenge for the process participants. They are focused on preparing the necessary implementing measures, since their applicability would no longer be confined to the national route of protection but rather now enter into the long-overdue ratification of the agreements to enable the international and regional routes of IP protection.
In this respect, the PENPI has settled seven major strategic goals:
- Continuous improvement of the legal framework
- Strengthening the institutional framework and improving the administration system of IP rights
- Enforcement of IP rights
- IP training
- IP awareness
- Cape Verde’s international presence
- Inclusion of IP in development policies and programmes
To implement these strategic goals, there will be cooperation between stakeholders, namely:
(i) academic, research and development institutions (through the adoption and implementation of IP in the institutions);
(ii) government institutions (ensuring the integration of IP into policies, strategies, and operational plans; mobilisation and allocation of resources; and creation of specific IP units and training); and
(iii) private sector (integrating IP into business strategies; internal IP strategy; creation of sectors or working teams specialised in IP and allocation of funds for R&D, IP protection and exploitation.
Ratification of key IP treaties
The Cape Verdean Parliament’s 1st plenary session of 2022, on January 7, had core resolutions for the country’s IP system as it approved the accession to major regional and international treaties, in particular: ARIPO’s Lusaka Agreement, Banjul and Harare Protocols; and WIPO’s Patent Cooperation Treaty (PCT), Geneva Act of the Lisbon Agreement, Paris Convention for the Protection of Industrial Property (Paris Union) and the Madrid Protocol. On the January 27, 2022, Parliament further approved the accession to the ARIPO’s Swakopmund Protocol.
While the instruments of accession for WIPO’s key treaties have already been deposited on April 6(effective as of July 6), the instruments of accession for the ARIPO’s treaties will be deposited on a later date.
During the international conference, “The Contribution of Intellectual Property in Promoting Innovation and the Transition to a Sustainable Economy”, held in Praia on April 7 and 8, Cape Verde’s Prime Minister, Ulisses Correia e Silva, said that Cape Verde’s integration into the international IP community allows the country to have privileged relations with its member states, benefit from international cooperation programmes, and ensure its IP rights are protected abroad.
Herewith, fundamental steps were taken to support the development Cape Verde’s creative industries, including more efficient and cost-effective ways to ensure national, but also regional and international protection for its intangible assets. With these additional routes of protection, applicants may now outline different filing strategies to protect their businesses and creations. Additionally, the Cape Verdean IP office may now expect guidance and support from WIPO and ARIPO, which will enable technical, procedural and process management software improvements, aiming to modernise the national practice.
A look at the three treaties
Paris Union
Regardless of the recent ratification of the Paris Convention, which include the principle of national treatment, the right of priority, and set minimum standards of protection, the Cape Verdean IP Law (2007) already provided for priority to be claimed (Article 230), and such claims have always been recognised in practice. This will be an important formalisation of an existing practice.
PCT
The protection of inventions has received little attention in the country. At the same time, the IP office’s former technical limitations in analysing the substantive issues of applications and the consequent delay in issuing notices of acceptance were discouraging factors for applicants. This problem may change with the accession to the Patent Cooperation Treaty, as the international route will give greater visibility to Cape Verde, and applicants may be more inclined to proceed with the national phases in the country. The technical team is receiving information from other offices, such as WIPO and INPI (Portugal), and will be better prepared to handle applications with more expertise and efficiency.
Madrid Protocol
The accession to the Madrid Protocol may be deemed as the most expected one, as trade marks receive the most attention in the jurisdiction. Through this accession, Cape Verde will count with a new route of protection which, depending on the applicant’s business strategy, may be more convenient (filing a single application in one language and paying one set of fees to apply for trade mark protection in multiple territories, managing a brand portfolio through a centralised system, and easily expanding protection into new markets) and cost-effective (saving time and costs by filing one application, rather than a bundle of national applications and not needing to pay for translations or hire a representative in each country).
Reforming the IP law for international protection
A revision of the current IP law (Decree-Law No. 4/2007) is underway to provide the country with a robust legal regime that may provide more detailed regulations for each IP right and, expectedly, introduce new subsections that provide guidance on international and regional applications.
Being a civil law jurisdiction, Cape Verde will automatically apply international treaties when validly ratified, meaning that there are no theoretical obstacles for the Madrid Protocol and other treaties to enter into force. However, if the IP law is not amended before July 6, 2022, there will certainly be practical issues in connection with the administrative proceedings that should be followed to apply these international treaties. Nevertheless, in the meantime, there is some leeway in implementing the treaties even if the IP law is not updated by using national proceedings, but the revised IP law is expected to introduce subsections on forwarding and receiving ARIPO and Madrid trade marks.
One of the challenges that is likely to arise is the limited timeframe for IP offices to conduct substantive examination of applications and inform if the trade mark should or should not be registered, either from absolute or relative grounds, which might include the existence of previous trade marks. As per the Cape Verde IP Law (Article. 155), after publication of applications in IP Bulletin, the dispatch of grant shall be issued within 12 or 18 months, but in practice this deadline is not met due to occasional backlog. As central offices will require dispatches to be issued within limited timeframes, namely within 12 or 18 months (WIPO) and 9 months (ARIPO), the Cape Verdean IP office will need to be diligent.
Relying on trade mark maintenance, namely applications for registration through the international route (Madrid), it is fundamental to rely on the fact that Cape Verde has a double regime for maintenance: declarations of intent to use (DIU), due every 5 years from the granting date, and renewals, due every 10 years from the granting date, the former paid directly to the Cape Verdean IP office and the latter to WIPO. Such a feature will require applicants to be particularly vigilant and appoint local agents who can represent them in Cape Verde and file DIU on time to ensure the validity of the Cape Verdean designation. Similar maintenance regimes exist, for instance, in Mozambique, the USA, Mexico, Cambodia, and Philippines.
Upon the approval of the revised IP law, it will be curious to learn whether the DIU regimen will continue or if it will be discontinued, as it happened, for example, in Portugal after the IP law revision of 2008, where, by reducing maintenance costs and unnecessary formalities, DIUs were abolished as they were deemed an excessive burden on citizens and businesses.
The transitional phase from the previous legal framework to the new one, influenced by ratification developments, will create some challenges. However, these challenges are necessary “growing pains” for the dynamism of the country's IP ecosystem. In this transitional phase, IP consulting will be of paramount importance.
Authors
Diana Pereira and Inês Sequeira are trade mark and patent attorneys at Inventa.