https://doi.org/10.57988/crig-2318
Guelor Paluku Matata[1], Francine Katungu Masimengo[2], Deogratias Katembo Tahamukwi[3] and Sagesse Kasereka Kapakazi[4]
Abstract
This work deals with
key principles of international law that regulate the protection of industrial
property rights in the DRC. Generally contained in legal instruments with
binding effects to DRC (Paris convention and TRIPS agreement) and that work in
a complementarity system, principles referred to, are the national and
most-favored nation treatment, the territoriality, state independence of
industrial property rights and the priority rights principle. According to their
contents, contracting States have obligation to adopt laws in their respective
national legal systems to implement those general principles and strategies of
protection in term of minimum standard of protection.
In search of complying
with such obligation, DRC adopted a law that addresses issues related to
industrial property rights. However, it still lacks serious conformity with
TRIPS Agreement requirements despite the transitory period granted by the WIPO.
Regarding to that, some scholars consider, on the one hand, that DRC is still
on the way to make industrial property rights effective and claim, on the other
hand, application of reciprocity to Congolese nationals living abroad as a way
to force DRC to quickly conform with its obligation related to industrial
property rights (even if prohibited by the Paris convention) As a recommendation, DRC’s authority have
to make legal effort to comply with these requirements for the good of
Congolese citizens and as a way to avoid any issue of international
responsibility based on industrial property rights.
Keywords: Industrial property, principle of
property rights, most favored nation, territoriality.
Résumé
Cet article traite des principes clés du droit
international qui régissent la protection des droits de propriété industrielle
en RDC. Généralement contenus dans des instruments juridiques ayant des effets
contraignants pour la RDC (Convention de Paris et Accords ADPIC) et qui
fonctionnent dans un système de complémentarité, les principes auxquels il est
fait référence sont le traitement national, la nation la plus favorisée, la
territorialité, l'indépendance de l'État des droits de propriété
industrielle et le principe des droits de priorité. Sur le fondement de leurs contenus,
les États contractants ont l'obligation d'adopter des lois dans leurs
systèmes juridiques nationaux respectifs pour mettre en œuvre ces principes
généraux et stratégies de protection en termes de norme minimale de protection.
Afin de se conformer à cette obligation, la RDC a
adopté une loi, jugée lacunaire, qui traite des questions liées aux droits de
propriété industrielle. En dépit de la période transitoire accordée par l’OMPI
à la RDC, cette dernière peine toujours à se conformer aux exigences des Accords
ADPIC. A cet égard, certains chercheurs considèrent, d'une part, que la RDC ne
fournit pas assez d’efforts pour rendre effectifs les droits de
propriété industrielle et réclament, d'autre part, l'application de la
réciprocité aux ressortissants congolais vivant à l'étranger comme moyen de la
contraindre à se conformer à son
obligation internationale découlant des instruments sus-évoqués.
Mots-clés: Propriété
industrielle, principe des droits de propriété, nation la plus favorisée,
territorialité.
Industrial
property law, in the era of international trade and globalization, is at the
heart of several issues. Unfortunately, in DRC, many economic operators are
unaware of the relevance and importance of this field of law. They are missing
out the opportunity to exploit an intangible asset that enhances the company’s
heritage. The ignorance of this field of law and rights that derive from the
industrial property has led to a perpetual infringement of laws and regulations
related to in DRC. The issue becomes more pertinent when it moves to an
international level. Such an attention drawn on the international level is
justified by the fact that Congolese traders import goods and sell them in DRC.
While some
of them have concluded franchising contracts, others involved in the production
of goods of different natures that are sold beyond Congolese borders. As matter
of the fact, it is worth inquiring about the protection of such industrial
properties imported to DRC by taking into consideration existing franchising
contracts understood here as “a method
of distributing products or services involving a franchisor, who establishes
the brand’s trademark or trade name and a business system, and a franchisee who
pays a royalty and often an initial fee for the right to do business under the
franchisor’s name and system[5].”
The same
goes for industrial products manufactured in DRC either by Congolese nationals
or foreigners whose industries are implemented in DRC and submitted to
Congolese law system as well as industrial properties produced by Congolese
abroad. By and large, every owner of an invention or other intangible asset
needs legal protection that grants him a monopoly grace to which they will be
able to prevent any temptation of illegal act of copying. Thus, Eastaway writes
“Being capable to stop copying is a
desire of many businesses for the straight forward reason that it impels
customers to look for the author for the product or service in need.
Accordingly, intellectual property law has a major impact on the actual conduct
of business across a very wide range of human endeavour. Therefore, it implies
a legal protection at diverse levels of products’ accessibility[6].”
In case
law, the CJEU in its Judgement of 24
March 2022 C-433/20 (Austro-Mechana case) said: “Technological development has multiplied
and diversified the vectors for creation, production, and exploitation. While
no new concepts for the protection of intellectual property are needed, the
current law on copyright and related rights should be adapted and supplemented
to respond adequately to economic realities such as new forms of exploitation.”
As matter
of consequence, an inquiry about the protection of such products or services
and derived rights, with the mixture and complexity of aspects it contains,
reveals more than important. Therefore, at the starting point of this work, it is asked how does
Congolese law organizes the protection of industrial property and derived
rights at the international level. And as research question, it goes: “what
are principles of international law that address specifically issues of
industrial property in DRC?
The
emergence of legal protection and legal remedies of industrial property sets
limits by trying to define boundaries between what may legitimately be done and
what is illegitimate between the new areas of development which are, for longer
or shorter periods, fenced off and what then passes into the pool of common
knowledge from which all may freely take[7].
Using a
comparative approach, Leila Ghassemi Farreras writes that despite its gaps and
deficiencies, the Paris convention for the protection of industrial property is
a successful achievement in the field of intellectual property at the international level and provides
the principal international vector of the union between States. She
demonstrated that before the Paris union, the situation was more than
complicated to obtain protection in foreign countries due to the fact that an
invention patentable under the law of their country might be non-patentable in
other countries. Even the filing of the application describing the inventions
or the advertisement of the invention by administration was considered
destroying the novelty of the invention in many countries[8].
Staying on
the same line of ideas and using an exegetic-casuistic approach, Sam Ricketson
opines that the contribution of the Paris convention to the international
protection of industrial property tries to make a convergence and harmonization
between legal systems of different States even if in some continents like
Europe, the bar has reached a very high level of union and the protection
granted to industrial property is getting more and more effective.[9] This is confirmed in case law by the Court of Justice of the European
Union in cases of “Consten et Grundig vs Commission, joint-cases 56-64 and
58-64 of 13th July 1966” and in the “Deutsche Grammaphon” case
when supporting that it results from the TFEU that a unique and community
market in the field of intellectual property is an essential need of the EU.
As emerges from the extensive literature,
in respect to the international protection of both industrial property and
derived rights, two questions are commonly asked by authors. It is all about
the acquisition of an industrial property right by foreigners and the
recognition and enforcement of a right acquired abroad[10]. As a matter of substance, the rights above-referred to, are commonly
protected by patents, registration of trademarks and trade names, utility
models and designs; a process that goes from national legal basis.[11]
For Nigel
Eastaway, there is a verified conclusion that granting a patent consist of a
right of exclusive use of the invention for a limited time and involves a
curtailment of the freedom of industry and commerce. During the term for which
the patent is granted, no one except the patentee is allowed to manufacture,
use or sell the new article or the new machine.[12] Thus, a question goes: “is such a protection automatically recognized
beyond borders of the issuing patent authority”?
On his
point of view, BOKEDER writes that principles set by the Paris convention and
the TRIPS Agreement constitute minimum standards of protection of industrial
property that any contracting party must respect.[13]”
P. Ladas write that the Paris convention as revised several times,
substantively, aims at articulating national systems of State-parties with
different standards of protection in the fields of patents and trade, service
marks and establishing the obligation to protect some sorts of industrial
property assets without, unfortunately, setting minimum standards. It is
applied to industrial property
in the widest sense, including patents, trademarks, industrial designs, utility
models, service marks, trade names, geographical indications, and the
repression of unfair competition[14].
According to a recent WIPO consultation paper, the TRIPS agreement,
referring to industrial property rights enumerated in the Paris convention,
goes beyond the mere fact of constituting an obligation upon State members and
practically fixes standards of protection of industrial property rights
expected from country members. This means that member States are required to
respect the minimum standard of protection instituted by part II and III of the
TRIPS agreements as a matter of international obligation. Nevertheless, member
States are free to grant a more extensive protection to industrial property
rights as cited by the aforesaid agreement unless it appears contrary to its
objectives[15].
Sam
Ricketson opines without contradicting the above-mentioned arguments, the Paris
convention (1889) as amended later is accompanied by other legal instruments of
international scope that work on the basis of principles such as the
territoriality and independence of protection, the national treatment
principle, the most-favoured treatment and so on.
Despite the
existence of several conventions on the international protection of industrial
property and different initiatives of the World Intellectual property
Organization to which DRC is a State-party, it worth bearing in mind that, on
the one hand, foreigners met with great and, sometimes, insurmountable
obstacles to get the protection of their inventions in DRC and on the other
hand, Congolese nationals face hardships in getting protection of their
inventions abroad. According to Yav Katsung, such a drastic situation in DRC is
due to lack of knowledge of intellectual property law by a great number of
Congolese including some administrative authorities and becomes a nightmare
when international legal aspects involved in[16]. Thus, it reveals more than important to check out the way the
Congolese legal system organizes the protection of industrial property at the
international scale and propose a broadcasting mode of the scope of such
protection.
Referring
to the above-mentioned ideas, it is worth bearing in mind that those
principles grant an international
protection at a minimum level but requires the membership of a State for its
nationals to be covered. However, on the current basis of Congolese law, it is
noticed that DRC is a State-party to few of them. Besides, principles and strategies
of protection offered by those few international legal instruments are known by
a small group of persons. That is why Yav Katsung wrote that the international
protection of industrial property in Congolese law is still an undiscovered
domain which requires deep research from lawyers[17].
The
collection of data or information that concur to the formulation of answers to
the present research questions requires the use of an appropriate
methodological approach. The last, as an intellectual process, is a tool that
allows testing theories by demonstrating the inevitable relation between facts
and theory[18]. For bringing the most effective result, the present research is
performed through a doctrinal legal and comparative method as privileged by Leila
Ghassemi whose methodological approach revealed more attractive.
T. Mann
describes a doctrinal approach as “a
synthesis of rules, principles, norms, interpretive guidelines and values which
explains, makes coherence or justifies a segment of the law as a part of the
larger system of law”[19]. Since law, itself, is a doctrine put into application in a social
circumstance[20], this work focuses on the way in which Congolese industrial property
law evolves, operates and brings specific type of consequences in regard to the international protection.
From a
teleological point of view, comparative
method aims at drawing lessons from the approaches of different
jurisdictions to the same or similar problems. It provides a much richer range
of model solutions by considering similarities, identifying discrepancies and
working on them. It widens the dimensions of a critical legal research and
facilitates a contrast between specificities of different legal systems[21]. More precisely, it is
micro-comparison that interested us as much as it is done between legal systems
of the same law family, and focuses on specific rules particularly industrial
property rules to resolve the issue of the international protection of industrial
property rights in Congolese law.
Concretely,
the above-mentioned methods are materialized by practical tools that are called
techniques. As far as this work is concerned, documentary technique plays a key
role in the collection,
exploration, explanation, evaluation and treatment of information that concur
to the construction of solutions hereby highlighted.
A good
appraisal of the way Congolese legal system organizes the international
protection of industrial property rights requires a review of the content of
different legal instruments related to which are the Paris convention and TRIPS
Agreement. These two international legal instruments are the main ones related
to industrial property to which DRC is a contracting party. They place
obligations on DRC to adopt national laws that implement principles they set.
This means,
on the one hand, principles such as the national treatment and most-favoured
nation treatment (4.1), the territoriality and state independence in regard to
intellectual property rights (4.2) are binding and have to be respected in DRC.
On the other hand, as settled under TRIPS agreement as well as the Paris
convention, a strategy of granting priority to any protection claim submitted
in DRC and for which the inventor has been conferred an exclusive protection in
another country party to the Paris union has been incorporated in the national
law regulating industrial property issues (4.3).
According to articles 2 and 3 of the Paris convention,
each of the contracting State have to grant the same protection to nationals of
other contracting states that it grants to its own nationals. The convention
elects no room for discrimination between nationals and foreigners in
industrial property matters. The same treatment is provided by the convention
for nationals of non-contracting states who are domiciled or have an effective
and real industrial or commercial establishment in a contracting state. National treatment does not elect room for policies
of reciprocity in the field of
industrial property protection except only the case of copyright where national
treatment partly depends upon mutual accordance of national treatment. Such
exceptions are referred to in Art.3 (1)TRIPS Agreement and
corresponding rules are contained in Arts 6 (1) and 20 Berne Convention and Arts 13 (d)[22].
The Paris convention did not include the most-favoured
nation treatment. The latter was perceived as a pure mechanism of international
trade law and found room in the field of industrial property with the TRIPS agreement
constituting a break with former states practice which linked the protection of
industrial property to the national territory and settled the condition of
reciprocity[23]. The prohibition of
discrimination between national and foreigners is currently at the heart of
international instruments that address industrial property issues; a state
party cannot easily breach it without violating its international obligation.
The national and most-favoured nation treatments pursue the same objective
which is the struggle against discrimination, a principle of customary
international law since a long period of time.
For Thomas Cottier “Most-favoured-nation treatment is a second mainstay of
non-discrimination in international trade and investment regulation. It is
enshrined in Art. 4
TRIPS Agreement.
Unlike national treatment, this cornerstone of the international trading system
does not apply to intellectual property under the Paris Convention. Neither of
them contains comparable rights and obligations[24].” In the same line of ideas, Carlos Maria Correa writes “In
accordance with the MFN principle, as formulated in
the TRIPS Agreement, ‘any advantage, favour, privilege, or immunity
granted by a Member to the nationals of any other country shall be accorded
immediately and unconditionally to the nationals of all other Members’. It is
to be noted that the MFN principle applies in relation to benefits accorded to
nationals of ‘any other country.’ Hence Members should be accorded the MFN
treatment when benefits were granted to non-WTO Members. As incorporated, the
MFN clause aims at ensuring that nationals of Members receive
the best treatment accorded to a member to nationals of other
countries[25].”
In case
law, the identification of discriminatory acts of a state is not an easy task
to deal with. Any allegation of the violation of national treatment principle
should pass through three steps that have been established by the arbitration
tribunal in the case of Saluka v.s Czech Republic and
to which many other decisions have been referred. According to the decision
taken in the aforesaid case, the three-step process of identifying the
violation of national treatment principle includes: the existence of similar cases that should be treated differently without reasonable justification.” This means that the process goes from the identification of a group of nationals
with whom to compare the claimant and the comparison between treatments granted
before assessing whether the treatment received by the claimant is less
favourable than that granted to the group of nationals. At the end of the
process, there should be an evaluation whether the two groups are in similar
circumstances or whether certain factors exist which could justify any
differential treatment[26].
On its own side, the MFN
principle is guided by the rule of ejusdem
generis that means that an MFN
advantage claimed for patent cannot be extended to other kinds of industrial
property rights. This rule has been more popular in arbitration practice before
the ICSID that many other arbitration tribunals used it. Most of the time, the
MFN principle is used to attract a better treatment. Since the case of Maffezini vs. Spain, the
arbitration practice has favoured the possibility to use the MFN provision to
avail a dispute settlement provision in another agreement considered more favourable[27].
Despite exceptions allowed by the TRIPS Agreement at
its article 4 and 6, the exclusion of reciprocity and discrimination between
nationals and foreigners is of obligatory effect under industrial property law.
States parties are called to put the national and most-favoured-nation
treatments into practice as a matter of international obligation which,
combined with the territoriality and state independence principles, forms the
cornerstone of the protection of industrial property rights at the regional and
international scales.
The
principle of territoriality has been judged by several scholars as one of the
fundamental principles of International Intellectual Property Law, in general
and industrial property Law, in particular, considering its ability to allow
countries to design their intellectual property laws in a manner that
facilitates the achievement of specific societal goals[28].
Emmanuel Kolawole Oke writes “According to the
principle of territoriality, intellectual property rights are limited to the territory of the country
where they have been granted. The principle of territoriality permits states to
tailor their national intellectual property laws to suit their level of
technological and economic development[29]”. The territoriality principle, as inspired by specialized doctrine
finds true application in industrial property law grace to the intervention of
state independence principle according to which a protection of industrial
property granted on a territory is independent from another one granted by
foreign states.
For S. Bergé, it is a principle
substantially international that proposes specific solution to international
situations. Its presence in great texts that govern the international
protection of industrial property rights justifies the value it entails[30]. The territoriality of the protection of industrial property does not
reject the conventional minimum of protection settled by the TRIPS Agreement
through minimum standards of protection.
It means
that each contracting party’s protection is independent from the foreign one on
the condition that it stays in conformity with minimum standards of protection
settled by different international legal instruments such as TRIPS Agreement.
These standards of protection bring closer national laws of different states
parties and lead to the internationalization of the aforesaid protection. A
special attention needs to be drawn towards the incorporation of intellectual
property rights protection in the investment law system. For some scholars,
such an incorporation constitutes a potential threat to the principle of
territoriality.
According
to E. K. Oke, “The incorporation of intellectual property
into the international investment law system and the assetization of intellectual
property can affect the principle of territoriality in at least two ways. Firstly, free trade agreements (especially
where it is an agreement between a developed country and a developing
country) typically include provisions requiring the parties to implement
standards that are above and beyond the minimum requirements of the TRIPS
Agreements or which eliminates a flexibility available to a WTO member under
the TRIPS Agreement (typically referred to as TRIPS-plus provisions). Where an
agreement expressly contains such TRIPS-plus provisions, it can curtail the ability of a party to
design its national intellectual property laws in a manner that allows it to
achieve specific societal goals. It is however possible to incorporate
specific provisions into a bilateral investment treaty or a free trade
agreement that recognizes a country’s policy space and preserves its regulatory
powers with regard to intellectual property. Secondly, a number of these investment agreements empower corporations to
challenge regulatory measures (implemented by host countries to achieve
specific societal goals) before international arbitration tribunals via the
Investor-State Dispute Settlement (ISDS) system. The threat and/or cost of
litigation before an investment tribunal pursuant to an investment agreement
can influence a country to decide not to implement certain regulatory measures
(including measures relating to intellectual property rights) thus having a
chilling effect on the regulatory powers of the country[31]”.
As a
commentary to the idea of E.K Oke above mentioned, it is better writing that
the incorporation of intellectual property rights, in general and industrial
property ones, in particular, as investment assets in bilateral investment
treaties and investment articles of the free trade agreements, here called
assetization process, gives to foreign investors the possibility to challenge,
before an arbitration tribunal, regulatory measures taken by the host state.
Such a
possibility constitutes a threat to the principle of independence of State and
territoriality under the Paris Convention and the TRISP Agreement considering
the fact a limitation or exception under industrial property law can be seen as
an illegal expropriation under investment law.
In other words, the incongruence between the object and purpose of
assuring the protection of industrial property -that are mainly inciting creativity and allowing a state to achieve its
societal goal- and the ones of investment agreements -that are focused on the protection of foreign
investors and their investment abroad- leads to a tricky situation that
have been object of debate in the legal doctrine related to the territoriality
of industrial property.
Therefore, E.
K. OKE points out that: “This
incongruence between the object and purpose of intellectual property law and
international investment law might impair the ability of a state to design its
national intellectual property laws in a way that enables it to achieve
specific societal goals[32].”
The Philip Morris’case, in which
trademarks were both simultaneously intellectual property rights and investment
assets, confirm the territoriality of industrial property law and points out
that the mere fact that a trademark is included in an investment agreement does
not prevent a host state to use its regulatory power especially when it aims at
protecting public health. Thus, in its decision, the tribunal says: “…under Uruguayan law or international
conventions to which Uruguay is a party the trademark holder does not enjoy an
absolute right of use, free of regulation, but only an exclusive right to
exclude third parties from the market so that only the trademark holder has the
possibility to use the trademark in commerce, subject to the State’s regulatory
power[33].”
In the case
of Eli Lilly v Canada, the
arbitration tribunal took a similar decision that confirms once more the
territoriality principle of industrial property despite the existence of a
dissenting opinion that tried to support the investment side of the case. Anyway,
the trend seems to be the same in arbitration practice except in very
exceptional cases where regulatory measures of the host that violate the
industrial property protection of the foreign investor are so severe in light
of the agreement[34].
A part from
principles above-presented, the Paris convention requires contracting parties
to recognize a priority right to protection claim that have been granted
previously in another state-party to the union. DRC’s law related to industrial
property has consecrated this principle in theory as well as in practice.
Industrial property rights are governed by the
territoriality principle. The latter means “that a patent, breeders' rights, a trademark, design or model is only
valid in the country in which protection was obtained. In concrete terms, these
rights must be registered in countries in which you want to exercise them and
prohibit third parties from using your invention, plant variety, trademark, or
design or model[35]”.
It means that a patent in a State party A to the
Paris convention is not automatically recognized in State B even if party to
the same convention. If the owner wants to get protection in State B for the
same invention, they have to submit a new application in the new State. More particularly
in case the owner of an invention already patented in another countries wants
to get protection for the same invention in DRC, they should comply with legal
formalities under Congolese law. Nevertheless, as a national of a State party
to the Paris convention, they benefit from the priority rule offering them a
privilege in the processing of the application. The application of the rule
referred was confirmed by the Court of Justice of the EU in the case of KaiKai Company vs. the EU office for Intellectual
property. At point 59 of its decision,
the CJEU said: “(…) which
grants a right of priority to anyone who has duly filed an application for
registration […] in or for one of the States party to the Paris Convention or
to the agreement establishing the World Trade Organization …”[36]
Despite the priority rule, an issue
still arises under Congolese law that does not fully comply with minimum
standards of protection settled by the TRIPS Agreement till today. Some
scholars have written that such a situation can push other states to apply reciprocity
to Congolese applicants abroad even if prohibited under the Paris convention
and TRIPS Agreement.
The international protection of industrial property in Congolese law is
assured via the Paris convention and TRIPS Agreement, international legal
instruments to which DRC is a contracting party. These international legal
instruments set minimum standards of protection and place obligations on State
parties to integrate them in the national legal system.
By and large, each State-party to the aforesaid instruments must adopt a
law that complies with minimum standards of protection settled under
international industrial property law. As a State-party to the Paris convention
and TRIPS agreement, DRC adopt the law n° 82001 of January, the 7th 1982 that regulates issues of
industrial property law.
Under this
law, some principles fixed by the Paris convention are respected. However, a
series of other standards of protection are not guaranteed especially the ones
set by the TRIPS Agreement. Much of the current work on industrial property law
highly criticize the non-conformity to TRIPS Agreement by DRC despite the
deadline given to it. For several scholars including Congolese ones, this is a
serious negligence that should be sanctioned. Among sanctions invoked, the
application of the reciprocity rule to Congolese national abroad should take
place considering the low degree of protection granted by their national law to
foreigners even if it is prohibited under the Paris convention. Of course, such
non-conformity to TRIPS Agreement by DRC constitutes a violation of its
international obligation. On my behalf, it could be better to hold DRC
internationally responsible and sue it before a competent international
authority instead of apply reciprocity to Congolese national abroad because the
initiative to conform to TRIPS Agreement does not practically depend on them.
Such an action would make more sense than activating a prohibited rule.
In
conclusion, key principles of international law that regulate the protection of
industrial property rights are applicable in DRC despite its non-conformity to
TRIPS Agreement requirements. As a recommendation, DRC’s authority have to make
legal effort to comply with these requirements for the good of Congolese nationals
and as a way to avoid any issue of international responsibility before any
competent international authority.
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[1] Research and
teaching Assistant in Law Faculty at Université Catholique du Graben
(North-Kivu/DRC) : matataguelor@gmail.com
[2] Research and
teaching Assistant in Law Faculty at Université Catholique du Graben
(North-Kivu/DRC).
[3] Research and
teaching Assistant in Law Faculty at Université Catholique du Graben
(North-Kivu/DRC).
[4] Research and
teaching Assistant in the Faculty of Economics at Université Catholique du
Graben (North-Kivu/DRC).
[5] N. BINCTIN, Droit
de la propriété intellectuelle : Droit d’auteur, brevet, droits voisins,
marques, dessins et modèles, Paris, 3ème édition, LGDJ, 2014, p.
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[6] N. EASTAWAY et al.,
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7th edition, Thomson Reuters, 2008, p.19.
[7] N. EASTAWAY et al.,
Op. Cit., p.19.
[8] L. Gh. FARRERAS, Utilisation of traditional Medicinal
Knowledge in the Industry: Legal aspects and protection in international law,
Ph.D dissertation in Law of the Neuchatel University, defended on March, the 14th
2017, p. 85.
[9] S. RICKETSON, The Paris convention for the protection of
industrial property; A commentary, Oxford University Press, 2015, p. 25.
[10] St. P. LADAS, The international protection of industrial
property, Cambridge, Harvard University press, 1930, p. 3.
[11] Idem, p.15.
[12] Ibidem.
[13] BOKEDER, A public health agenda for traditional
complementarity and alternative medicine, 2002, p.1586.
[14] St. P. LADAS, Op. Cit., p.3
[15] Members shall give effect to the
provisions of this Agreement. Members may, but shall not be obliged to,
implement in their law more extensive protection than is required by this
Agreement, provided that such protection does not contravene the provisions of
this Agreement. Members shall be free to determine the appropriate method of
implementing the provisions of this Agreement within their own legal system and
practice. Article 1 of the TRIPS agreement.
[16] Y. KATSUNG, « Droit de la propriété
intellectuelle congolais », in Revue
de droit des affaires OHADA, disponible sur www.ohadata.com consulté le 7 février 2022 en 20h30.
[17] Y. KATSUNG, Art.
Cit., www.ohadata.com consulté le 7 février 2022 en 20h30.
[18] E. HESSEL YNTEMA,
“Comparative legal research: some remarks on ‘Looking out of the cave’”, in Michigan law review, 1956, pp. 899-928.
903.
[19] T. MAN cited by L.
GHASSEMI, Op. Cit., p.91.
[20] P.M. BAKSHI, “Legal
research and Law reform” in SK Verma and
M. Afzal Wani, Indian Law Institutes, 2010, pp. 110-119.
[21] E. HESSEL YNTEM, Op.
Cit., p. 900.
[23] S. BERGÉ, Protection
internationale et européenne du droit de la propriété intellectuelle :
présentation-textes-jurisprudence-situations, Bruxelles, Larcier,
2015.
[26] See the case Suluka
vs Republic Czec, under the arbitration rules of the United Nations commission
on international trade law, 7th May 2004.
[28] E. KOLAWOLE OKE,
Territoriality in Intellectual Property Law: Examining the Tension
between Securing Societal Goals and Treating Intellectual Property as an
Investment Asset, Volume 15, Issue 2, October 2018, available on www.google.com checked on 4th
April 2022 at 14h38.
[29] E. KOLAWOLE OKE, Op.
Cit., available on www.google.com checked on 4th April 2022 at 14h38.
[30] S. BERGE, Op.
Cit., p. 114.
[31] E. KALOWOLE OKE, Op. Cit.,
p. 320.
[32] E. KALOWOLE OKE, Op. Cit.,
p. 320.
[33] See, Philip Morris
case, para. 271.
[34] E.K.OKE, Art.
Cit., p.329.
[35] S. BERGÉ, Op. Cit., p. 114.
[36] The Court of Justice of the EU in the
case of KaiKai Company vs. the EU office for Intellectual
property, 14 April 2021.