The law regulating intellectual property practice in Cameroon is the Bangui Accord of 02/03/1977 as amended on 24/02/1999. This law is essentially an agreement between 17 west and central African countries (Benin, Burkina Faso, Cameroon (headquarters), Central African Republic, Comoros, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea Bissau, Guinea Conakry, Mali, Mauritania, Niger, Senegal, Tchad and Togo) to create a regional IP system, to wit: “The African Intellectual Property Organization (AIPO) most commonly known and called by its French acronym, OAPI. The immediate fallout of this regional approach is that an IP registered in OAPI is covered and protected in all 17 member countries with a total population of more than 170 million.
Material scope of the Bangui Accord.
This law regulates the protection of Intellectual Property rights in patents of invention, utility models, trademarks and service marks, industrial models/designs, trade names, geographical indications and appellations of origin, literary and artistic property, protection against unfair competition, topographies of integrated circuits and protection of plant varieties. It also provides for the recordal of licenses, assignments, changes of name and changes of address in the special register. Yet the same law governs searches of anteriority, searches of identity, renewals of rights and extension of coverage to and from new adherents to the organization.
First to file (not first in use)
The principle of anteriority in OAPI is first to file (and not first in use). This simply means it is the first person to submit his complete application file to the office who is deemed legally to be the owner of the trademark (or other IP right) in question. The fact that another person commercialized the product or service before the filing or he is even the creator or inventor is immaterial. Thus you could create and actually have your product commercialized for any length of time and one fine day a smart fellow just turns around to enjoy a free ride over you by legally chasing you out of the market just because he overtook you in the race of registration. The registered product thus becomes the original while yours is seen as the imitation in the eyes of the law. By inference therefore, a trademark only acquires protection in the OAPI sub region by registration and no more.
This principle of first to file (not first in use) is rather bizarre and frustrating for the creative mind for two things. For one thing, intellectual property rights matter because it is both just and appropriate that the person putting in the work and effort into an intellectual creation has some benefit as a result of his endeavour. For another thing, by giving protection to intellectual property, many such endeavours are encouraged and industries based on such work can grow, as people see that such work brings financial return. But unfortunately the situation with the first to file system is that “free-riding” of competitors stands to be encouraged more or less. In the face of this however the advise is usually for the creators of intellectual property to have their creations have official recognition forthwith in order to avoid any unpleasant surprises springing from unscrupulous free-riders.
Thus in OAPI, the person in whose name an application is filed is automatically the owner of the intellectual property. The organization does not go into the investigation as to the genuineness of the ownership. That is immaterial - applicants are owners!
Optional search of anteriority.
In our jurisdiction, to apply for a search of anteriority before filing an application for registration is not mandatory. So it is for the applicant to determine that he is sure there is no anterior application for the registration of the same intellectual property and goes ahead to file his application without search or is wary and applies for a prior search; search is payable anyway.
Application equals registration
In this respect, once an application is filed the organization takes proper note of the date and time of filing, checks if the application file is complete and proceeds to register the intellectual property, the effective date being the date of filing. So filing an application in OAPI is tantamount to registration of the IP except otherwise opposed by an interested party.
Rebuttal of registration.
If one intellectual property happens to be registered in the name of different owners, the owner of the registration claiming priority has the liberty to file a memorandum of opposition against the other(s) within six months of their publication in the OAPI official gazette, a quarterly. The organization forwards this memorandum to the defendant who, according to the principle of fair hearing also has the right to file a counter submission within three months renewable once. If he however fails to oppose within the deadline, it would be deemed that he has tacitly withdrawn his application and thus the registration would be cancelled. Otherwise the OAPI opposition commission sits on the written submissions on a fixed date and the parties or their counsels may make viva voce submissions to the commission if they had previously applied so to do.
The decision of the commission is subject to appeal to the Higher Appeals Commission whose decision is final. This decision is published in the OAPI official gazette and also recorded in the special register. Meanwhile, the infringing intellectual property continues to enjoy protection from other competitors pending the reasoned final decision of the commission.
It is trite knowledge that intellectual property rights are territorial rights. So your trademark for instance, is protected only within the territory of the jurisdiction wherein it is registered. This is why a trademark registered in OAPI is covered and protected only in the 17 member countries and not beyond. Thus each time there is a new adherent to the Bangui Accord OAPI receives an avalanche of applications filed to have the coverage of rights extended from the new adherent to the organization and from the organization to the new adherent. Such was the case with the adherence of Guinea Conakry, Guinea Bissau and Mali in 1998, Equatorial Guinea in 2000 and Comoros in 2013.
But if a trademark is already registered and protected in another jurisdiction, say the People’s Republic of China, the owner upon applying for registration in OAPI may (advisedly) claim priority so the registration, rather than having effect from the date of filing the application in OAPI, may have effect from the date of the prior registration in China. This is very tactical, provided always that the application to OAPI is filed within six months of the registration in China.
Priority is claimed by submitting the application file complete with an indication as to (a) priority claim, (b) country or region of prior application, (c) date of application and (d) application number, all supported by (e) the priority document. When this expediency succeeds, the tactician would have the right to spring surprise attacks by filing memoranda of opposition against all the trademark applications which were filed in OAPI before his, but surely after the date of his prior application to the Chinese trademark office.