The status of Intellectual Property laws in South Sudan
29/08/2011

Proprietors and practitioners alike are expressing concern about the protection of Intellectual Property rights in the recently constituted territory of the Republic of South Sudan (“South Sudan”). This article is a brief report on the existence of Intellectual Property related laws and institutions in South Sudan.

South Sudan comprises all lands and air space that constituted the provinces Bahr el Ghazal, Equatoria and Upper Nile and the Abyei Area of the Republic of Sudan (“Sudan”). South Sudan is bordered by Sudan in the north, Ethiopia in the east, Kenya and Uganda in the south, the Democratic Republic of Congo in the southwest, and the Central African Republic in the west. The City of Juba is the National Capital of South Sudan and the seat of its national government.

Article 198 of The Transitional Constitution of the Republic of South Sudan, 2011, which came into force on 9 July 2011, states that “[a]ll current Laws of Southern Sudan shall remain in force and all current institutions shall continue to perform their functions and duties, unless new actions are taken in accordance with the provisions of this Constitution”. The “new actions” referred to in Article 198 probably envisage the promulgation of domestic Intellectual Property laws by the South Sudanese Legislature, which consists of the National Legislative Assembly and the Council of States. The “current laws” in South Sudan probably refers to the laws which were in force in the territory when the Transitional Constitution came into force, which would include the Sudanese Copyright and Neighbouring Rights Protection Act, 1996 and the Trade Marks Act 1969 and regulations.

Therefore, if our analysis is correct, it would appear that Intellectual Property rights in South Sudan are currently regulated and protected in terms of the Copyright and Neighbouring Rights Protection Act, 1996 and the Trade Marks Act, 1969 and its regulations.

It would appear that a Registry, which falls under the Ministry of Legal Affairs and Constitutional Development, is indeed allowing the filing of trade mark applications, but merely follows a deposit system whereby a certificate is issued on settlement of official fees. It is not clear whether this is being done under the auspices of the Trade Marks Act and its regulations or other legislation, because the process appears to be contrary to the requirements of this Act. What is becoming increasingly clear is that registrations secured with the Registry in Khartoum, Sudan are only now valid in North Sudan and it is unlikely that there will be any priority given when filing fresh applications in South Sudan.

It is difficult to be certain regarding the regulatory framework to obtain trade mark protection until associated rules, processes and systems have been formalised .

Adams & Adams is discussing the current situation with the various role players in Juba in the coming weeks and will, thereafter, provide further information.
Theuns van de Merwe
Associate
theuns-v@adamsadams.co.za