By Brian Manyire Tuesday, May 14, 2019

The enforcement of Intellectual Property (IP) rights is an area of law that has gradually and steadily built up steam following increased awareness among innovators and businesses of the economic value of IP rights such as trade and service marks, copyright, broadcasting rights and other industrial property rights.

The battle against infringement of IP rights is one waged in the High Court as a court of first instance. Section 45 of the Copyright and Neighbouring Rights Act, 2006 and section 79 of the Trademarks Act, 2010 provide that a person whose rights under the respective Acts are in imminent danger of being infringed or are being infringed may institute civil proceedings in the High Court for an injunction to prevent the infringement or to prohibit the continuation of the infringement. These laws then give a rights owner the option of lodging an ex parte application for the inspection and removal from the infringing person’s premises of the materials which constitute evidence of infringement.

However, in practice, getting a timely remedy from the High Court has proven to be a challenge given the tremendous case backlog. The Chief Justice, in a speech delivered at the opening of the New Law Year in February 2019, noted that the High Court was grappling with over 60 000 commercial, civil, land, family and other pending cases! This has inevitably led to delays in fixing matters in which injunctions against infringement are sought.

Steps taken to speed up processes

In a bid to speed up the court processes, the High Court was divided into Divisions: the Commercial Division, the Civil Division, the Land Division, the Family Division and the Execution Division. Suits regarding the infringement of IP rights are filed in the Commercial Division of the High Court. The creation of these divisions has, to a degree, alleviated the problem of backlogs and enabled the adjudication of IP disputes as the judges have developed the competencies required to handle IP matters expeditiously. However, even with this intervention, the Commercial Court is reported to have a backlog of 1,671 cases, with understaffing noted as the cause as to why the High Court has not been able to deliver judgments in most of the cases.

As with all other inventions, necessity gave rise to the latest initiative geared towards ensuring the fight against IP infringement is not lost. Legislation such as section 82 of the Trademarks Act provides for trademark inspectors to be appointed. Inspectors have powers to seize and detain a substance or article which they have reasonable cause to believe is an infringing trademark of any work, and are therefore a vital resource in enforcing the Trademarks Act.

As a result, the Uganda Registration Services Bureau (URSB) signed a MOU with the Uganda Police through which the IP Enforcement Unit was created. Though staffed by officers of the police force, the Enforcement Unit is based at the URSB (to which the Director of Public Prosecutions has granted a licence to prosecute such offences). The police officers and URSB lawyers work in tandem to record complaints against infringers, investigate the complaints, seize infringing material and collaborate in the prosecution of infringers.

The creation of this unit has seen IP infringement matters increasingly prosecuted as criminal matters as there is no need to file pleadings and get hearing dates in order to obtain injunctions or Anton Pillar orders. This has been seen with trademark infringement, copyright infringement, infringement of broadcasting rights and a myriad of other offences.

And there is more to come, Justice Mugambe, a judge of the High Court, has publicly called for the creation of an IP Division of the High Court, citing the Bench’s need to have increased understanding of the protection and enforcement of IP rights. The learned Judge, while speaking at a workshop organised by the URSB earlier this year, noted that besides helping to decongest the civil and commercial divisions of the High Court, an IP division would complement the URSB’s efforts to grow IP rights as an aspect of economic growth.

Meanwhile, the financial institutions, having borne the brunt of having colossal sums of capital (about UGX 730 billion) tied up in litigation, have teamed up with the Uganda Law Society to create a private sector-led arbitration and mediation centre known as the International Centre for Arbitration for Mediation (ICAMEK).  ICAMEK is intended to complement existing arbitral bodies and to supplement the efforts of the overburdened judicial system.

These developments can only bode well for the development of jurisprudence in the field of IP and for the swift resolution of IP disputes.