Adams & Adams
"The benefit of having trademark rights in Africa is already paying off"
How has working in local and international law firms, as well as in-house, benefited you in terms of sharpening your IP skill set?
It has given me context. Each environment has helped me to better understand where intellectual property fits in (or does not fit in) and I feel I am therefore able to provide better advice. It has also helped me to understand different cultures and different approaches to the interpretation of the same or similiar wording in legislation. Overall, I feel I am a more rounded practitioner as a result of the exposure.
What does leadership in the field of IP law look like to you?
Leadership in the IP field is the ability to make people’s lives better using intellectual property. In a developing continent like Africa, this requires the patience and understanding to educate, assist and empower people with the tools that intellectual property offers in a cost-effective and flexible way. A failure to adopt this leadership position will threaten the adoption and use of intellectual property on the continent.
Which trademark-focused case has been your most memorable and what was learned from it?
There have been several: the arrest and related legal actions against the so-called ‘Bavaria Babes’ for alleged ambush marketing activities during the FIFA World Cup in 2010 was memorable for the attention that it received. This attention not only provided a useful tool during settlement discussions, but also highlighted that an over-aggressive approach towards IP enforcement can be counterproductive. Litigating the first keyword case in Africa was special as it was precedent setting and illustrated the need to review and understand international issues. Assisting local cultures and traditional communities or nations (eg, the Zulu and Sotho nations) to use intellectual property to generate value and preserve culture is special and challenging because it merges concepts of intellectual property that are often diametrically opposed to the sharing notions of local cultures and concepts of ownership.
What are the top qualities that clients should look for when seeking world-class trademark advisers?
Having knowledge of the law and a detail-focused business acumen, being personable, reliable, diligent and accessible, having a good profile and strong influence and being experienced and able to use a team are all qualities of a world-class trademark lawyer. If you can get that at an affordable price, then you have nailed it!
Finally, it is anticipated that the African Continental Free Trade Area will become operational in the coming years. What challenges will this pose for trademark owners and what can they do to overcome them?
Better intra-African trade should be celebrated and should lead to the better movement of goods between member states and growth. The issues that Europe faced in the 1990s when consolidating a similar trade area will be faced by African states. However, overcoming these challenges will be significantly more difficult because there are many more languages, cultures and perceptions involved. Trademark owners will be required to embrace and trust the systems in place together with their idiosyncrasies. The benefit of having trademark rights in Africa is already paying off and those that have taken interest are seeing rewards. Local advice is critical.
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Darren Olivier has over 20 years’ experience in international firms and in-house in the United Kingdom and South Africa. He focuses on brand protection and IP commercialisation across Africa, advising a spectrum of clients, including the Zulu and Basotho royal families. He sits on the editorial board of the University of Oxford’s Journal of Intellectual Property Law & Practice. He co-founded Afro-IP and is a dual-qualified South African and English solicitor and trademark practitioner.