role of the agent
WHO IS AN ACCREDITED AGENT?
The agent is a physical or legal person entitled by the African Intellectual Property Organization to carry out services on a professional basis in Intellectual Property.
The Accredited Agent should have:
- A title as Adviser in intellectual property issued by OAPI after undergoing an examination,
- Proven Professional practice,
- Good character,
- Strict obligation to comply with professional secrets,
- Professional insurance policy.
Ultimately, it is the expert that serves as a liaison between the creators, inventors and OAPI. His profession is governed by a regulation.
WHAT DOES THE ACCREDITED AGENT DO?
- The Agent’s mission:
To advise, to assist, to represent third parties in view of obtaining, maintaining and defending rights of Industrial Property, annexed rights and rights on closely related matters;
To provide the public with legal, technical and strategic consultations, to conduct availability searches, to draft contracts, to effect recordals, etc.
The preliminary advice
- The Agent has the role to first of all advise on the contents of applications to be filed. There are several forms of protection which has an impact on the effectiveness and the scope of the protection sought. Our role at this level is to orientate the client to the form of protection that best meets his needs.
The contents of the application to be filed are also important because it’s the content which determines the scope of the protection sought.
It is a relevant step before filing any application. The search essentially verifies that for inventions that the subject of the invention is not already protected and for distinctive signs that the sign chosen is not in conflict with a sign already registered.
The technical preparation of filing and application
This is purely administrative and generally routinely, but it would be very unwise to neglect it. This work must be done with the maximum care and attention.
We should bear in mind that the required documents for filing will be the basics to establish rights. In the event of a dispute, it is the contents of these documents that will permit OAPI or the court to determine the nature of the rights of the applicant and their scope. Thus, an error or omission on a file can lead to the irregularity or the loss of rights.
It is also important to note that a complete and well prepared file permits for a rapid issuance of the title definitely.
FOLLOW-UP OF AN APPLICATION FILED
- Monitoring of the procedure
- Maintenance of the application
- Up dating the application
- Before granting the title, OAPI examines the files for which the Agent may be requested to regularize the file.
- Once rights have been granted, the proprietor must maintain them in force. Each title has its duration The Agent must therefore monitor all deadlines and inform the clients of the steps to be undertaken in advance..
- Updating files entails recording all changes concerning the name or address of the proprietor as well as any transfer of rights attached to the file (assignments, license or pledge).
The rights of industrial Property may be subject to different transactions. They may be assigned in part or in whole. Their exploitation can also be entrusted to third parties via a license.
All these transactions are evidenced by contracts whose drafting requires much care, both for their content as well as to their form. A poorly written contract can cause damages to the other party. It can also be contrary to some provisions of the law and thereby exposing itself to the risk of cancellation.
The Agent has an important role in guiding the drafting of these contracts so that they accurately reflect the will of the parties, that their rights are respected and well recognized and that they also conform to the law.
The defence of rights
- Amicable procedures
- Actions before OAPI
- Judicial proceedings
- When a client is victim of an infringement of his rights, it is advisable that he seeks friendly contacts with the infringer. If many acts of infringement are as a result of deliberate fraudulent acts, others are simply due to ignorance.In the latter case, an amicable settlement can be favourably reached. Even if the infringement of rights is intentional, a formal notice may suffice to stop the damage.
- Apart from court actions, OAPI has put in place in-house procedures conducted within the Organization which are much faster than the judicial proceedings and also much less expensive.These procedures permit the cancellation of applications which infringe the rights of the applicant. The Accredited Agent has a vital role in the following up of these procedures.Although the law does not expressly oblige on to file through an Agent, the intervention of an Agent is at least recommended.These are complex procedures as one should not only be able to convince OAPI of the accuracy of his point of view, but also to refute the opponent’s arguments.
- Finally, when the case comes to court, the Agent coordinates and directs the action either through him if he is a lawyer, or by the intervention of a lawyer. When it concerns a lawyer who is not specialized in industrial property, the intervention of the Agent alongside is necessary.He supports him with his specific knowledge of the laws and his daily practical experience.