Africa is often portrayed by the media as underdeveloped, unsafe and an economic backwater. A simplistic and stereotypical view of the continent has been created and it is no surprise that many companies are still skeptical about investing in Africa, especially when it comes to intangible assets such as intellectual property (IP). In addition to crime and corruption, which are a reality in Africa but are in fact prevalent on a global scale, it is poor infrastructure in some African countries which leads to further disinclination to invest, resulting in Africa often being mistakenly overlooked.

Despite a global slowdown in economic growth, Sub-Saharan Africa’s economy has remained resilient and a rebound is expected in 2024. According to the IMF’s October 2023 World Economic Outlook, many of the world’s fastest-growing economies are found in Sub-Saharan Africa. Niger is projected to have an economic growth rate of 11.1% in 2024, Senegal is projected to grow at 8.8%, Rwanda at 7% and Côte d’Ivoire at 6.6%.

Africa is a powerhouse when it comes to the world’s natural resources. It has roughly half of the world’s stock of manganese. The Democratic Republic of the Congo possesses half of the world’s cobalt. Ghana is the world’s second biggest producer of cocoa, and with the discovery of new oil fields, could become one of the biggest oil producers in Sub-Saharan Africa. Five of the top 30 oil producing countries in the world are based in Africa, not to mention the massive gas field discovered off the coast of South Africa which may hold more than 1 billion barrels of total resources of gas and condensate.

Further untapped potential for sustainable economic growth lies in the use of the ocean’s resources, commonly known as the ‘blue economy’. With 38 of the 54 African countries being coastal and most of the continent’s trade being conducted by sea, the opportunities for economic growth are tremendous.

As there are great investment opportunities available in sectors like energy, agriculture, water and mineral processing, it is not surprising that many patents have been filed in this respect. According to the World Economic Forum, agriculture is projected to be a USD 1 trillion industry in Sub-Saharan Africa by 2030.

Lastly, there is the financial sector, perhaps one of the most impressive and promising industries which remains a key focus area for many companies. According to Forbes, Sub-Saharan Africa is one of the fastest-growing investment zones for financial technology firms. As an example, the hugely successful mobile banking service M-PESA was founded in 2007 by Vodafone’s Kenyan associate, Safaricom, allowing users to store and transfer money through their mobile phones thereby making transactions easier, safer and more accessible. In comparison, the similar Apple Pay service was only launched in the US in 2014.

So how does a company protect their IP in Africa and where would they start?

There are different systems in place when it comes to protecting IP in Africa. In an attempt to facilitate IP protection, many African countries have formed regional systems whereby a single application can result in protection in multiple countries. There are two such regional systems in Africa – L’Organisation Africaine de la Propriété Intellectuelle (OAPI) and the African Regional Intellectual Property Organization (ARIPO).

The OAPI regional system manages IP applications in mainly Francophone countries. It has 17 member states and, as they have all renounced their national patent and trademark legislation, a single application automatically covers all member states. Accordingly, OAPI has established a more unified system for the protection and administration of IP.

ARIPO manages IP applications in mainly Anglophone countries. Ten member states have joined with respect to trademarks and 22 member states with respect to patents. As member countries have retained their national patent and trademark legislation, it is possible to designate individual member countries when filing an ARIPO patent or trademark application. ARIPO has been in partnership with the World Intellectual Property Organization (WIPO) since its establishment in 1976 and works incredibly well. ARIPO is fast, efficient, and reliable, making it an attractive option when looking to register IP in one or more of the ARIPO member countries.

In order to be able to reap the benefits, companies must be pragmatic and astute when it comes to Africa. What works in one country may not work in another and, despite the regional systems in place, not every country has joined these systems. Countries such as Ethiopia, Nigeria and South Africa stand alone and IP protection cannot be obtained through OAPI and ARIPO. Furthermore, certain African countries are not members of the Patent Cooperation Treaty (PCT) which means that patent protection, for example, can only be obtained by way of a national filing.

There is no doubt that IP protection in Africa is complex and sometimes difficult to navigate. However, intangible assets such as intellectual property can represent a significant portion of a company’s value, so it is essential for businesses to have a trusted and reliable local counsel to assist them with this vast and evolving IP landscape.

By: Janet Tomkow-Coetzer

For more information, please contact Janet Tomkow-Coetzer at our South Africa office.