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The Commonwealth’s International Coop Vs. Seychelles’ in Implementing Industrial Property Law

By Ramesh Bikram Karky, SJD –

In the picture: CFTC Technical Advisor and Expert with IP Staff Members

Seychelles is the most advance island country in African continent. Seychelles has become WTO Member in April 2015, and the WTO membership has brought many opportunities and obligations to Seychelles. Seychelles is under obligation to bring its laws, regulation and practices in compliance with WTO TRIPS Agreement. In 2014, Seychelles enacted the Industrial Property Act, 2014 to bring its intellectual property regime in compliance with the Trade-related Aspects of Intellectual Property Agreement (WTO TRIPS Agreement). The Industrial Property Act of 2014 includes all types of intellectual property rights.

Seychelles’ Industrial Property Act of 2014 and related Regulations has introduced new concepts in the Patents, Trade Secrets and undisclosed information, access to medicine, biotechnology, industrial designs, geographical indications, and Layout Designs of Integrated Circuits areas in Seychelles. The Office of the Registrar-General (Intellectual Property Office) and practitioners in Seychelles has faced significant challenges in terms of new concepts within the legal and regulatory framework of the intellectual property arena.

In this connection, as a member of the Commonwealth, Seychelles was successful to obtain technical assistance to implement the Industrial Property Act of 2014 from the Commonwealth Fund for Technical Co-operation (CFTC) during 2016 – 2017. The CFTC was set-up in 1971 by the Commonwealth Secretariat to provide technical assistance to Commonwealth member countries. The CFTC-funded the Implementation of Industrial Property Act 2014 in Compliance with the WTO TRIPS Agreement project (hereinafter “the Project”) in Seychelles, and the Project began work at the Intellectual Property Office (Office of the Registrar-General) accountable to the President of Seychelles in Victoria, Seychelles on May 1, 2016 for the period of one year.

During the period of one year, the Project has transferred knowledge (new concepts) relating to patents, access to medicine, biotechnology, industrial design, trademark and geographical indications to the staff members of the Intellectual Property Office (IP Office) through many training workshops, on-the-job training, and policy documents. The Project focused its activities on achieving the empowerment and capacity enhancement of the staff members of the Intellectual Property Office to better understand and implement the Industrial Property Act of 2014 and achieve compliance with the standards of the TRIPS Agreement.

In total, the Project delivered ten trainings. The Project also continuously provided on the-job training on a daily basis, and continuously provided consultation and advice on any IP issues and challenges faced by the IP staff members. This included practical training on intellectual property for IP staff members so that they can develop their skills and abilities to perform their official function. Since the establishment of the Project, the IP Office has improved its function in line with the Industrial Property Act, 2014. For example, the Intellectual Property Office changed its practice of renewing trademark registration to seven years rather than 13 years. It has also started to mention the Industrial Property Act of 2014 in Certificates and correspondences instead of the previous law. The Intellectual Property Office was providing advice to trademark agents, but it is now aware that advising is not its role. Regarding registration of a trademark, the Intellectual Property Office previously demanded a separate application for each class of goods or services, but now it has changed its practice and allows one application for different classes (one trademark application can claim/cover more than one class). In addition, there is no longer a practice of registration of series of trademarks. The Office was protecting UK patents in Seychelles, but now it is aware that only patents registered in Seychelles are protected by law in Seychelles. The Office also is aware that many patents registered under previous law were protected for fourteen years and are no longer valid after that period has expired. The staff members can determine the requirements of trademark application, patent application and industrial design application, as well as the process to be taken to complete a trademark, patent and industrial design grant. All pending issues related to registration and processes has been resolved.

The Project reviewed the Industrial Property Act of 2014. In process of reviewing the Industrial Property Act of 2014, the Project has conducted consultation with stakeholders and examined whether there are any obstacles for the full implementation of the Act, identified relevant issues, and provided recommendation for amendment. The Project covered certain issues related to trademark such as disclaimer, multiple applications, registered user, series of trademarks, basis of opposition, and other. Similarly, in the patent area, the Project found missing provision of patentability of microorganism (biotechnological innovation) and many other.

However, without a sufficient number of expert staff members, Seychelles will not be able to meet the TRIPS-related international obligation brought about by the WTO accession. Currently, it takes almost three years to register one trademark, and the opposition hearing system has not started to function. Stakeholders have expressed their concern regarding delays in registration and the non-function of the opposition hearing system.

To sustain the present achievement of the Project, the Government of Seychelles needs to increase the number of expert staff, including patent examiners, trademark examiners and legal experts, as soon as possible. As transferring IP knowledge, building capacity and implementing intellectual property law is a time-consuming process, the Commonwealth Secretariat also need to continue to further its technical assistance to consolidate the Project’s achievements and to further build capacity and implement the Industrial Property Act of 2014.

Overall, Seychelles has improved business environment and Seychelles shall be able to attract domestic as well as foreign investment. Furthermore, Seychelles has achieved environment to develop new sectors/industries which are intellectual property centered. The environment of innovation and technological development has also been improved. Varied stakeholders as well as the whole country has been exposed in all the positive aspects which the new legislation has brought.

This Project is a good example how knowledge and skills can be transformed to small island countries like Seychelles through international cooperation.

Ramesh Bikram Karky is a Fellow at the Vrije Universiteit Brussels Center for Economic Law and Governance. The author thanks the Commonwealth Secretariat for providing him with an advisory position – International Trade Specialist (2016-2017).

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