Fragmented Strategies to

Successful IPR Enforcement

South Africa A J Lotheringen

AMCHAM 29 June 2017

PROBLEM

No comprehensive and cross-sector strategy to fight

counterfeiting

The CIPC, is ideally placed to rally all stakeholders

SOLUTION

- Information campaigns against counterfeiting,

- Agreement on common technical means for detecting

- Steps to reinforce the protection of IPR in Africa

The Challenge

WIPO Development Agenda -

Recommendation 45

To approach IP enforcement, in line with Article 7

(Objectives) of TRIPS = to ensure a balance in the IP

system, taking into account the needs and interests of all

countries, developed and developing, and all

stakeholders

Equilibrium between private rights

to encourage creativity and innovation, and protect IPR

the public interest

to access knowledge in the interest of sustainable development

Department of Trade and Industry

National Government (the dti)

To stimulate economic growth and participation by regulating business entities,

intellectual property and other juristic persons through registration of

companies, co-operatives and intellectual property rights;

Promoting compliance through education and awareness ,enforcing the

relevant legislation, rescuing business in distress and promoting sound

financial management practices in accordance with government law, policies

and international best practices

CIPC will support South African Inventors, artists and indigenous communities

through offering a basket of services which will start with creating awareness

around the opportunities that exist for protection of products that are the

outcome of their innovation and creativity

CIPC VISION

CIPC IP Enforcement

• Effective protection (Registration of trade marks and copyright)o Supported through physical enforcement actions to combat copyright

piracy and trade mark counterfeiting.

o The focus is on manufacturing and selling for commercial gain.

• Drive awareness and build capacity o of the increased risk of trade mark counterfeiting and copyright piracy.

• Reaffirm collaboration efforts within local government,

Internationally and Public Private Partnerships.

• Promote the macro economic benefits (Investment, Jobs,

Economic growth) to keep the Political heads informed and

canvass support for objectives.

CO-OPERATION

The efficiency with which counterfeit and pirated products are

being combated in South Africa depends on:

• the internal working relationship of all government agencies responsible

for the enforcement of the Act

• the co-operation and commitment of the IP holders, their agents and

representatives

• creating general awareness with the public

• guiding businesses into compliance.

IP RIGHTS INFRINGEMENTS

AND ENFORCEMENT

Balancing the rights and responsibilities through a strategy of co-

operation:

• Increases effectiveness

• Brings down costs

• Gathers intelligence

• Shortens period that goods must be stored

• Gathers intelligence for Organized Crime Operations

• Do not change what is working well

How are we going to achieve this ?

Collaboration Partnerships

Partnerships with all core partners are beneficial as they

provide for :

• Simplified processes

• Integrating multiple services through innovative collaboration

• Increase efficiencies

• Introducing services in completely new ways that benefit all parties

concerned.

Simplified processes

IntegrationIncreased efficiencies

Game Changers

Main Role-players

SAPS SARS

CIPCIPR

holders

Concurrent Responsibility

Custodian and Administration

• CIPC

Implementation

• CIPC Inspectors appointed through the CGA

• Customs division of the South African Revenue Service

(SARS) and the

• South African Police Service (SAPS)

Operational function

• Fostering a close working relationship with the Municipal and

Local Government Authorities,

• Private sector stakeholders and role players

CIPC/SAPS (Priority Crime Directorate)

Ad hoc complaints Detailed with a focus on Supply and

Manufacturing

Search and Seizure Operations Depot

National Prosecuting Authority Commercial

Courts

Conviction Sentencing Fines or Imprisonment

Destruction/Recycling

Existing Processes for IP

Enforcement in SA

Goods seized

Goods seized

Current situation

Law

enforcement

Right holders

Legal

advisors

CIPC

Reality

Stumbling blocks preventing effective

enforcement

Cooperative Benefit defined

• Benefit derived from individual contributions when they are

executed in unison

• Involves collaboration, cooperation, alignment, shared goal

• Understand the economic perspective on policies towards

IPRs enforcement

• Drawing key insights from the economic literature to identify

priorities for the allocation of scarce law enforcement

resources

Strategies for Cooperative Benefit

needed

Sweeping Search and Seizure Operations

Multi Government Agency approach with an industry specific

focus (Operation One Stop Shop)

• CIPC driven by identifying main industries:

o Creative sector

o Clothing and apparel

o Medicines and Consumer Goods

Sweeping Operations

CIPC Inspectors SAPS Detectives

Pro Active Joint Operations with all right holders on

board

Identified hot spots Pro Forma Complaint affidavits

on CIPC website

Multi Disciplinary Approach with a focus on a identified

Industry

Other Gov Agencies on board (Through the book at

them approach)

Health

Home Affairs SARS Duties Compulsory Standards

Lower Courts and Magistrate Court Prosecutors

Admission of Guilt Fines / Civil settlement

Information gathered and processed

Public Awareness

Goods in and out of Depot Lower storage costs

Recycling plant

Green destruction (Future PPP to set up)

Database created and Intelligence to be shared

with Hawks

New strategies

• Preventive actions, to complement ongoing enforcement measures

with a view to reducing the size of the market for pirated or

counterfeited goods (Intelligence driven to take out distribution and

manufacturing kingpins)

• True collaboration with a balanced approach towards creating

awareness and actively taking appropriate enforcement steps in all

deserving circumstances.(Market Sweeps)

• The “Be Your Own Buy Your Own” campaign piloted in South

Africa in 2013 that has proven effective as an alternative measure

to protect against counterfeiting and piracy. (Targeted public

awareness with a focus on the youth)

From Anti Piracy to Idea Conservation

CO-OPERATION

The efficiency with which counterfeit and pirated products are being

combated in South Africa and Africa is dependent on:

• internal working relationship of all government agencies responsible for

the enforcement of IPR

• co-operation and commitment of the IPR holders, their agents and

representatives

• creating general awareness with the public to address perception and

demand

10 Steps to Success

1. Forum for Brand holder engagement (Bringing stakeholders together)

2. Design a Compliance Portal for interaction Centralized Global Platform

3. Training Initiatives LEA and other that is consistently done and

centralized

4. Risk Mitigation Alignment Plan (Pro forma complaint affidavits)

5. Reinforcing Regional Forum interventions within SACU/SADC

6. Strategic approach to enforcement actions (landlord liability)

7. Different approach to awareness, education and marketing strategies. No

longer anti piracy but positive angle. Reward the right behavior

8. Accessibility of knowledge and relevant training materials

9. Law Enforcement Training Required

10.International Cooperation & Action

THANK YOU

CONTACT DETAILS FOR ENQUIRIES :

Tel: 012 3941512 / 082 497 4605alotheringen@cipc.co.za