Rwanda recently hosted the World Economic Forum (WEF) in Kigali in May, with the theme, ‘Connecting Africa’s Resources through Digital Transformation’. In a recent Bloomberg article, Mark Bohlund (African Economist) said that Rwanda has led the way in nurturing an attractive business environment by cutting red tape, providing tax incentives and improving governance. Rwanda’s Development Board predicts that foreign direct investment would probably rise by 36% this year, and as interest grows in doing business in the country, it is important for companies to be mindful of protecting their intellectual property rights in Rwanda.
A few changes have been made to Rwanda’s Intellectual Property Laws. While Law no. 31/2009 remains in force, a new law, namely, Law no. 005 of 2016 and various Ministerial Orders have introduced some amendments to the existing Law, all of which came into force on 20 April 2016, when they were published in the Official Gazette. The main changes entail the recognition and protection of Plant Breeder’s Rights and changes to the time periods relating to the opposition of certain industrial property applications. An overview of the changes is set out below.
Protection of Seeds and Plant Varieties
Law no. 005 of 2016 Governing Seeds and Plant Varieties in Rwanda now provides for the recognition and protection of seed and plant varieties in Rwanda. Previously, Law no. 14/2003 of 23 May 2003 was in force, governing the production, quality control and commercialisation of seeds but there was no intellectual property protection for seed and plant varieties and plant breeder’s rights. Law no. 005 has been enacted as the “related special law” referred to in Article 289 of Law no. 31/2009 and it has repealed Law no. 14/2003. Anyone who was dealing with activities relating to seeds and plant varieties prior to 20 April 2016 have been given a 12 month period (calculated from 20 April 2016, the date of publication of Law no 005 in the Official Gazette) to comply with the requirements set out in terms of the Law Governing Seeds and Plant Varieties in Rwanda.
In terms of Law no. 005, a Committee has been established to evaluate, certify, register and withdraw plant varieties in relation to the national plant variety list in Rwanda. All certified plant varieties are registered on the abovementioned list, which will be published by the Minister of Agriculture on an annual basis in the Official Gazette. An application for registration of a plant variety would need to be submitted to the competent Committee. The Seed Certification Authority appoints a plant variety Registrar who is granted the powers of Judicial Police Officer by the Minister in Charge of Justice. Seed inspection and testing are to be carried out by seed inspectors and seed analysts. A seed inspector is also granted the powers of a Judicial Police Officer in Charge of Justice.
Law no. 005 sets out the requirements for quality seed production, processing and marketing and the relevant recognised seed categories. It also sets out the requirements for quality seed producers, conditioners and dealers and deals with the importation and exportation of seeds. Seeds that are produced or sold must now have a seed quality certificate, granted by the authority in charge of granting licences for importation and exportation of plants in Rwanda. All seeds for which a certificate is sought are tested by a recognised seed laboratory. Seeds that are not produced in Rwanda are allowed to be imported if they have been subjected to certification schemes that are of equal or higher standard than the certification scheme applied in Rwanda and which are internationally recognised. The expenses in this regard will be borne by the seed importer. However, in the case of emergency resulting into seed shortages in Rwanda, the Minister of Agriculture has the right to allow the use of seeds which have lower standards than those set up by the law in Rwanda.
New plant varieties are protected in terms of Law no 005, where the plant breeder has applied for protection and which meets the required conditions. Any Rwandan or foreign plant breeder is eligible to apply for plant variety protection for a variety that he/she has bred. The date of receipt of the application is considered as the filing date. The requirements are that the plant variety must be (a) new, (b) distinct, (c) uniform and (d) stable. Law no 005 explains these requirements in some detail and a plant breeder’s rights entitle him/her to sell, multiply or distribute his/her plant variety or to designate any other person to do so. The plant breeder’s rights will be registered and maintained on the register by the Registrar of plant breeder’s rights. A plant breeder’s right is granted for a period of 20 years from the date of granting of the plant breeder’s right (i.e. not from the date of application thereof) but for trees and vines, such a period is 25 years from the date of granting of the right.
The Registrar has the power to approve or reject the protection of a plant variety, to withdraw the plant breeder’s right certificate, to nullify the plant breeder’s right and to remove from the register, a protected plant variety. Any interested person may have access to the plant breeder’s rights register with permission from the Registrar.
Decisions made regarding the granting, nullification, cancellation and rejection of plant breeder’s rights are published in the Official Gazette. Where the requirements are met, the plant breeder should be informed within 30 days that his/her plant variety is protected and is given a plant breeder’s right certificate. The grant of a plant breeder’s right certificate will be published and provision is made to object to an application for registration of a plant breeder’s right, after publication. A ministerial order will determine the procedure to lodge an objection in this regard. Any person who is not satisfied with any decision made by the Registrar in terms of Law no 005 may appeal to the management of the Registrar’s institution within 30 days. If a party is not satisfied with the decision made on appeal, he/she may refer the matter to the competent court.
A plant breeder’s right does not apply to, inter alia, acts done privately for non-commercial purposes and acts done for experimental purposes. A plant breeder’s right is not restricted, however, the Minister may authorise any person, upon application, for a compulsory licence, to use a protected plant variety without the plant breeder’s authorisation for the following cases of public interest: (a) social welfare, (b) national security, (c) environment protection. In such cases, the plant breeder will receive fair remuneration.
A plant breeder’s right or an application for the right may be assigned by means of a written document, signed by both parties. The holder of a plant breeder’s right may give someone the authorisation to use such a right in compliance with the provisions on plant breeder’s rights. Any person contravening the provisions of Law no 005 will be liable to pay a fine.
Opposition period relating to trade mark applications and geographical indications
Article 3 of Ministerial Order no. 25 of 17 March 2016 (effective from the date of publication on 20 April 2016) has formally amended the opposition period to oppose a trade mark application and geographical indication to 60 days and repeals Article 3 of Ministerial Order no. 5/10 Minicom of 25 August 2010 which stated that the opposition period of industrial property rights was 30 days. For the past 19 months, however, the Rwandan Registry has implemented a 60 day opposition period in practice. From October 2014, the Industrial Property Journals just started publishing applications indicating a 60 day opposition period. No practice directive was issued by the Registry introducing the change to the opposition period at the time and Article 3 of Ministerial Order no. 25 of 17 March 2016 now provides clarity on the issue.
Ministerial Order no. 25 of 17 March 2016 does not mention whether the opposition period is extendable and what the extension period would be, if applicable, and this will need to be raised with the Registry and clarified in due course.
Article 3 of Ministerial Order no. 25 of 17 March 2016 also provides that upon receipt of an opposition, the applicant for registration of a trade mark application or geographic indication has 14 days to submit a written response to the competent authority about the content of the opposition. Prior to the publication of Ministerial Order no. 25 of 17 March 2016, no specified period had been stipulated in terms of the IP legislation regarding the timeframe within which an applicant is required to respond to an opposition.
Article 4 of Ministerial Order no. 25 of 17 March 2016 now expressly provides that an opposition for intellectual property registration must contain the following information: (a) identity of the applicant, (b) object of opposition, (c) detailed reasons for the opposition, (d) material evidence of the grounds for opposition, (e) power of attorney, if needed and (f) the date and signature of the applicant.
International Registrations designating Rwanda in terms of the Madrid Protocol
Rwanda joined the Madrid Protocol on 17 August 2013 and currently there are reservations around actually designating Rwanda in terms of an International Application because Rwanda has not amended its domestic legislation to recognise intellectual property rights in terms of the Madrid Protocol and there are, apparently, no formal guidelines as to how the Rwandan Trade Marks Office will prosecute International Applications designating Rwanda. Many practitioners therefore recommend that trade mark proprietors should continue to register their trade marks at national level in Rwanda. However, it has been submitted that Article 290 of Law no. 31/2009 already envisages the recognition of the Madrid Protocol in terms of Rwanda’s domestic legislation. Article 290 provides the following: “the provisions of any international intellectual property treaty to which the Republic of Rwanda is party, shall apply. In the case of conflict with the provisions of this Law, the provisions of the international treaty shall prevail over the latter”.
In light of the above, International Applications designating Rwanda in terms of the Madrid Protocol are, apparently, being considered by the Rwandan Registry. Once the Rwandan Trade Marks Registrar receives notification from the WIPO International Bureau, the International Application designating Rwanda proceeds to examination and, if accepted, will be published in Rwanda’s Industrial Property Journal for opposition purposes. If no opposition is lodged, the International Application designating Rwanda will proceed to registration and a notification to that effect will be made to the International Bureau.
Ministerial Order no. 24 of 17 March 2016 (as published on 20 April 2016) sets out the official fees payable for the registration of various intellectual property rights and repeals the previous Ministerial Order no. 6/10/Minicom of 25 August 2010. Ministerial Order no 24 has made provision for, inter alia, the fees payable for International Applications in terms of the Madrid Protocol.
While provision was made for the publication of applications for opposition purposes in terms of Law no. 31 of 2009, Article 5 of Ministerial Order no. 25 of 17 March 2016 (as published on 20 April 2016) now also provides for the publication of every registered intellectual property right in the Official Gazette and on the website of the Office of the Registrar General. The Rwandan Registry is currently in discussion with the office in charge of the Official Gazette to begin the process of implementing the publication of registered rights.
Ministerial Order no. 26 of 17 March 2016 (as published on 20 April 2016) determines the form and content of a power of attorney required in relation to industrial property rights. Article 3 stipulates that the power of attorney must contain the following information: (a) the name and address of the grantor, (b) name and address of the intellectual property right, (c) the subject and scope of the power of attorney, (d) determination of the place where the power of attorney will be executed, (e) commitment by the grantor of the power to be bound by the acts of the agent within the power of attorney, (f) signature by the grantor with the company’s seal, (g) date on which the power of attorney takes effect and (h) for a grantor whose habitual residence or principal place of business is located outside the Republic of Rwanda, the power of attorney must be certified by a notary.
It was not previously required for a power of attorney to be notarised and simple signature would have been sufficient, but now notarisation is necessary. Article 4 of Ministerial Order no. 26 of 17 March provides that the language of the power of attorney must be in one of the official languages provided by the Constitution (i.e. in either English, French or Kinyarwanda). No translation is required.
by Catherine Wojtowitz